By: Derek Hawkins//August 27, 2018//
7th Circuit Court of Appeals
Case Name: Mark McCleskey, et al. v. CWG Plastering, LLC,
Case No.: 17-1980
Officials: WOOD, Chief Judge, and EASTERBROOK and HAMILTON, Circuit Judges.
Focus: Collective Bargaining Agreement
Walter “Wally” Gianino owned and operated a plastering company in St. Louis, Missouri, for over thirty years. That business—Gianino Plastering—abruptly closed in 2012. Around the same time, Wally’s son, Curt Gianino, who had worked at Gianino Plastering for over a decade, founded his own company, CWG Plastering, LLC. CWG took on at least some of Gianino Plastering’s customers, hired its employees, and without missing a beat completed jobs that Gianino Plastering had begun. What might be a story of a son following in his father’s footsteps is complicated by an inconvenient fact: Curt went into business on the same day that a $196,940.73 judgment was entered against his father’s company.
That judgment arose out of Gianino Plastering’s 2009 collective bargaining agreement with the Operative Plasterers and Cement Masons International Association Local 3 (“the Union”). The agreement obligated the company to make regular contributions to the Indiana State Council of Plasterers and Cement Masons Health and Welfare and Pension Funds (“the Funds”). Gianino Plastering soon fell short of meeting that obligation, prompting the Funds to sue in the Southern District of Indiana in 2011 to recover the delinquent payments. After a bench trial, the district court entered judgment against Gianino Plastering and in favor of the Funds. But the Funds were blocked from collecting on their judgment because Gianino Plastering filed for bankruptcy.
The Funds now have sued CWG, asserting that CWG is Gianino Plastering’s successor and alter ego and thus liable for both the judgment and for other ongoing violations of the collective bargaining agreement. After discovery, the parties filed cross‐motions for summary judgment. The district court ruled that the Funds had not produced enough evidence to proceed to trial. Our de novo review of the record convinces us to the contrary: the Funds proffered considerable evidence that a trier of fact could use to support its case against CWG, and so we reverse and remand.
Reversed and Remanded