govinfo:USCOURTS-njd-1_23-cv-22637-0

UNITED STATES DISTRICT COURT 
DISTRICT OF NEW JERSEY 
 
CHAMBERS OF 
CHRISTINE P. O’HEARN 
UNITED STATES DISTRICT JUDGE 
MITCHELL H. COHEN BUILDING & 
U.S. COURTHOUSE 
4TH & COOPER STREETS 
ROOM 6050 
CAMDEN, NJ 08101 
856-757-5167 
 
June 8, 2026
 
VIA CM/ECF 
 
Kevin Douglas Jarvis 
Thomas Sinclair 
Steven J. Bushinsky 
O’B
RIEN, BELLAND & BUSHINSKY, LLC 
509 S. Lenola Road, Building 6 
Moorestown, NJ 08057 
 
Joseph Mark Profy 
G
ALLUCI & PROFY LLC 
1812 Berlin Road 
Cherry Hill, NJ 08003 
 
Richard D. Galluci, Jr. 
G
ALLUCI & PROFY LLC 
1020 Laurel Oak Road, Suite 301 
Voorhees, NJ 08043 
 
 
LETTER OPINION 
 
Re: Trustees of the United Food and Commercial Workers Local 152 Health and 
Welfare Fund, et al. v. B.I. Foods, LLC d/b/a Value Added Food Group 
Civil Action No. 23-22637 
 
Dear Counsel: 
 
This matter comes before the Court on the Motion for Summary Judgment (“Motion”) filed 
by Plaintiffs, Trustees of the United Food and Commercial Workers Local 152 Health and Welfare 
Fund (the “Fund”) and United Food and Commercial Workers Union Local 152 (the “Union,” and 
jointly with the Fund, “Plaintiffs”). (ECF No. 54). The Court did not hear oral argument pursuant 
to Local Rule 78.1. For the reasons that follow, the Motion is GRANTED IN PART and DENIED 
IN PART. PageID:
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I. Factual Background and Procedural History 
 
The Fund is an employee benefit plan established and maintained pursuant to the Labor 
Management Relations Act (“LMRA”) and Employee Retirement Income Security Act 
(“ERISA”). (Am. Compl., ECF No. 17 at ¶ 7). The Union is an unincorporated labor organization 
within the meaning of the LMRA and ERISA. ( Id. ¶ 13). Together, Plaintiffs seek to recover 
allegedly delinquent fringe benefit contributions and penalties owed under a collective bargaining 
agreement (“CBA”) and related agreements between them and Defendant B.I. Foods d/b/a Value 
Added Food Group (“Defendant”). (See Pls.’ Br., ECF No. 54-1 at 1–2). 
 
 The CBA at issue requires Defendant to make contributions to the Fund on behalf of 
eligible employees, whom the parties agree consists of Union members covered by the CBA. (Pls.’ 
Statement of Material Facts (“Pls.’ SOMF”), ECF No. 54-2 at ¶¶ 1–4; Def.’s Statement of Material 
Facts (“Def.’s SOMF”), ECF No. 59-2 at ¶ 43). Specifically, the CBA covers “drivers, shipping 
and receiving and production Employees located at [Defendant’s] Pennsauken, New Jersey 
facility . . . .” (Decl. of Ken Okerson (“Okerson Decl.”) Ex. A, ECF No. 54-5 at 5). For any other 
employees, Defendant is not obligated to remit contributions . To that end , the CBA explicitly 
excludes “salesmen, timekeepers, quality inspectors, maintenance employee[s], mechanics, lead 
maintenance men, office and clerical employees, administrative employees, guards and 
confidential, managerial and supervisory employees, as defined in the Act.”1 (Id.). 
 
The CBA also obligates Defendant to abide by a Declaration of Trust (“Trust Agreement”). 
(Pls.’ SOMF, ECF No. 54-2 at ¶ 5; see Okerson Decl. Ex. D, ECF No. 54-5 at 46–73). The Trust 
Agreement authorizes the Fund’s Trustees to adopt a delinquency collection policy; the adopted 
policy here allows the Fund to seek delinquent contributions, interest, penalties, attorneys’ fees, 
and any other remedy available under ERISA (“Collection Policy”). (Pls.’ SOMF, ECF No. 54-2 
at ¶¶ 6–7). Under the Collection Policy, contributions are due on the last day of the month in which 
an employee performs covered work and become delinquent the following day. ( Id. ¶ 9 ; see 
Okerson Decl. Ex. E, ECF No. 54- 5 at 74–87). To ensure accuracy of contributions to the Fund, 
the Collection Policy grants the Trustees the discretion to decide when to audit Defendant . (Pls.’ 
SOMF, ECF No. 54-2 at ¶ 15). If found to be delinquent on contributions, Defendant is obligated 
to pay certain penalties, including interest, liquidated damages, attorneys’ fees and costs, and audit 
costs where an audit reveals underpayment above specified thresholds. (Id. ¶¶ 10–16). 
 
This litigation concerns two payroll audits performed on behalf of the Fund by Tri-State 
Administrators, Inc. (“Tri-State”), a third -party company. ( See id. ¶¶ 18 –19). The first audit 
covered the May 2020 through December 2021 payroll period (“First Audit”),
2 and the second 
covered January 1, 2022 through July 31, 2023 (“Second Audit”; together, the “Payroll Audits”). 
(Id. ¶¶ 20, 30). It is unclear what documents Tri-State used to formulate the Payroll Audits. But 
 
1 The “Act” as used in the CBA is not a defined term therein. 
 
2 Plaintiffs note that this audit is mislabeled as covering January 1, 2020 through December 
31, 2021. (Pls.’ SOMF, ECF No. 54-2 at ¶ 20 n.1). This discrepancy in labeling has no bearing on 
the Court’s disposition. PageID:
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for both audits, Tri-State sent preliminary findings to Defendant and requested a written response 
within ten business days if Defendant disagreed with any findings. ( Id. ¶¶ 20 –23, 30–33). 
Defendant did not respond to either of the preliminary Payroll Audits. (Id. ¶¶ 23, 33). 
 
Tri-State then issued final audit reports. The final First Audit stated that Defendant failed 
to remit $138,317.47 in contributions, $16,152.18 in interest, and $526.22 in audit costs, for a 
combined demand of $154,995.87. (Id. ¶¶ 24 –27). Defendant disputes that those amounts are 
correct. (Def.’s Responsive Statement of Material Facts (“Def.’s RSOMF”), ECF No. 56-1 at ¶¶ 
26–27). The final Second Audit stated that Defendant failed to remit $117,471.45 in contributions, 
$9,259.24 in interest, and $1,095.00 in audit costs, for a combined demand of $127,825.69. (Pls.’ 
SOMF, ECF No. 54-2 at ¶¶ 34–37). Here too, Defendant disputes that those amounts are correct. 
(Def.’s RSOMF, ECF No. 56-1 at ¶¶ 36–39). 
 
In disputing the Payroll Audits’ accuracy, Defendant first relies on a declaration from its 
accounting manager and payroll coordinator, Denise Rappleye (“Rappleye”). (Def.’s Br., ECF No. 
56 at 14; Def.’s Ex. D (“Rappleye Decl.”), ECF No. 56-5 at ¶ 1). Rappleye states that she reviewed 
the Payroll Audits performed by Tri-State and concluded that the Payroll Audits “include required 
contributions for employees who were not eligible because they were not even members of the 
bargaining unit under the [CBA].” (Rappleye Decl., ECF No. 56-5 at ¶ 4). “By way of example,” 
Rappleye names four individuals —two salaried supervisors, a quality- control employee, and a 
maintenance employee—who were included in the Payroll Audits but are, by the terms of the 
CBA, excluded from the bargaining unit. ( Id. ¶ 5). Defendant also relies on deposition testimony 
of Richard Tarantino (“Tarantino”), a p artner in Defendant’s organization. (Def.’s Br., ECF No. 
56 at 14; Def.’s Ex. C (“Tarantino Dep.”), ECF No. 56- 4 at 9:20–10:4). Tarantino similarly 
testified that the Payroll Audits are wrong because certain employees were included in Tri-State’s 
accounting that are explicitly excluded by the CBA. ( See Tarantino Dep., ECF No. 56-4 at 45:1–
49:17). 
 
 Plaintiffs initiated this action on November 27, 2023 seeking to recover these delinquent 
contributions. (Compl., ECF No. 1). They filed an Amended Complaint on April 4, 2024, asserting 
three claims: Count One, brought by the Fund, alleges violation of ERISA §§ 502 and 515 for 
Defendant’s alleged failure to remit contributions required under the CBA; Count Two, brought 
by the Union and Fund, alleges violation of the CBA and LMRA § 301 for the same failure to 
remit contributions; and Count Three, brought by the Union and Fund, alleges that Defendant 
failed to pay penalties assessed under the CBA and related documents for the periods at issue . 
(Am. Compl., ECF No. 17 ¶¶ 26–49). Plaintiffs filed the instant Motion on November 14, 2025. 
(ECF No. 54). Defendant filed its opposition on December 22, 2025. (ECF No. 56). 
 
II. Legal Standard 
 
Courts may grant summary judgment when a case presents “no genuine dispute as to any 
material fact and the movant is entitled to judgment as a matter of law.” F
ED. R. CIV. P. 56(a). A 
genuine dispute of material fact exists only when there is sufficient evidence for a reasonable jury 
to find for the non-moving party. Young v. United States, 152 F. Supp. 3d 337, 345 (D.N.J. 2015) PageID:
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(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When the Court considers the 
evidence presented by the parties, “[t]he evidence of the non -movant is to be believed, and all 
justifiable inferences are to be drawn in his favor.” Id. at 346 (quoting Anderson, 477 U.S. at 255). 
 
The moving party bears the burden of establishing that no genuine issue of material fact 
remains. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986)). A fact is material only if 
it will affect the outcome of a lawsuit under the applicable law, and a dispute of material fact is 
genuine if the evidence is such that a reasonable fact finder could return a verdict for the non-
moving party. Id. (citing Anderson, 477 U.S. at 252). The non- moving party, however, must 
present “more than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn 
v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quotation omitted). 
 
III. Discussion 
 
Plaintiffs move for summary judgment on Defendant’s alleged failure to make 
contributions to the Fund in violation of ERISA § 515, 29 U.S.C. § 1145.
3 They seek damages 
based on the Payroll Audits and the penalties authorized by the CBA. For the reasons that follow, 
the Court will grant the Motion as to Defendant’s liability but deny it as to damages. 
 
On liability, Plaintiffs are entitled to summary judgment because it is undisputed Defendant 
is required by the CBA and related agreements to make contributions to the Fund on behalf of 
eligible employees. See 29 U.S.C. § 1145; Illinois Conf. of Teamsters & Emps. Welfare Fund v. 
Steve Gilbert Trucking, 71 F.3d 1361, 1365 (7th Cir. 1995) (“In the absence of any genuine issue 
of material fact as to [the defendant’s] obligation under the Agreement to make contributions to 
the Fund, the district court appropriately granted summary judgment as to liability.” ); Bourgal v. 
Robco Contracting Enters., Ltd., 969 F. Supp. 854, 865 (E.D.N.Y. 1997) (granting summary 
judgment on liability where “the defendants [were] liable for the payment of contributions under 
the collective bargaining and trust agreements”) , aff’d, 182 F.3d 898 (2d Cir. 1999) . Defendant 
does not otherwise make a meaningful argument as to liability. 
 
Having found Defendant liable for the payment of contributions under the CBA and related 
agreements, the Court turns to damages. Plaintiffs argue that summary judgment on damages is 
warranted because Defendant failed to produce records that ERISA required it to maintain, 
rendering the Payroll Audits presumptively accurate and shifting the burden to Defendant to 
“provide evidence that the fund’s calculations of damages are not accurate.” (See Pls.’ Reply Br., 
ECF No. 59 at 6–11). 
 
3 The Motion focuses exclusively on the ERISA § 515 claim asserted in Count I of the 
Amended Complaint. Count I is asserted only by the Fund, not by the Union. Count II, by contrast, 
is asserted by both the Fund and the Union under LMRA § 301 and likewise se eks to enforce 
Defendant’s obligations under the CBA. The Court’s liability analysis therefore applies with equal 
force to Count II, notwithstanding that Count I is brought solely by the Fund. In any event, because 
the Fund exists for the benefit of Union employees, any recovery by the Fund on Count I would 
presumably inure to the Union’s benefit. PageID:
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The burden- shifting framework Plaintiffs invoke reflects the view, adopted by several 
courts, that because ERISA requires employers to maintain records sufficient to determine the 
amount of contributions owed, the employer is ordinarily “in the best positi on to know” that 
amount. Demolition Workers Union v. Mackroyce Contracting Corp., No. 97- 4094, 2000 WL 
297244, at *7 (S.D.N.Y. Mar. 22, 2000) (quotation omitted); see Combs v. King, 764 F.2d 818, 827 
(11th Cir. 1985) (adopting the framework); Brick Masons Pension Tr. v. Indus. Fence & Supply, 
839 F.2d 1333, 1337–38 (9th Cir. 1988) (same); Mich. Laborers’ Health Care Fund v. Grimaldi 
Concrete, Inc., 30 F.3d 692, 695 (6th Cir. 1994) (same). Imposing a corresponding evidentiary 
burden on the employer therefore “reflects the employer’s duties under ERISA” and advances 
ERISA’s remedial purposes. Demolition Workers, 2000 WL 297244, at *7 (quotation omitted); 
see Brick Masons, 839 F.2d at 1338 (“An employer cannot escape liability for his failure to pay 
his employees the wages and benefits due to them under the law by hiding behind his failure to 
keep records as statutorily required.”). In practice, the framework operates as follows: 
 
First, the burden is on the employee benefit trust funds to come forward with 
evidence casting doubt on the accuracy or adequacy of the employer ’s records. 
Once the court finds that an employer has failed to maintain adequate records, the 
burden shifts to the employer to come forward with evidence of the precise amount 
of covered work that was performed so that the contributions can be computed. If 
an employer fails to maintain adequate records and fails to come forward with other 
evidence of covered work, then the employee benefit funds are entitled to 
approximate the contributions owed to them. 
 
Composition Roofers Union Loc. No. 30 Welfare Tr. Fund v. L.A. Kennedy, Inc., No. 93- 1558, 
1996 WL 220975, at *6 (E.D. Pa. May 2, 1996) (citations omitted). 
 
There is no controlling Third Circuit authority adopting the burden- shifting framework in 
ERISA cases like this one. District courts within this Circuit, however, have applied it. See 
Composition Roofers, 1996 WL 220975, at *6 (citing Combs, 764 F.2d at 826) (“If an employer 
fails to maintain adequate records and fails to come forward with other evidence of covered work, 
then the employee benefit funds are entitled to approximate the contributions owed to them.” ). 
Even so, courts have recognized that the framework is not readily applied at the summary judgment 
stage. See Int’l Bhd. of Elec. Workers Loc. Union No. 380 v. State Elec., No. 04-2610, 2006 WL 
2228863, at *7 (E.D. Pa. Aug. 3, 2006) (“ Courts which have adopted that framework have been 
reluctant to apply it at the summary judgment stage . . . .”). 
 
Even assuming that the burden- shifting framework applies, Plaintiffs are not entitled to 
summary judgment on damages for two reasons. First, Plaintiffs have not established the necessary 
predicate for shifting the burden: that Defendant failed to maintain adequate records. Plaintiffs 
identify no factual assertions, supported by record evidence, that cast doubt on the accuracy or 
adequacy of Defendant’s recordkeeping practices. At most, Plaintiffs’ Statement of Material Facts 
establishes that Tri- State sent Defendant preliminary audit findings, that Defendant did not 
respond, and that Tri -State later issue d the final Payroll Audits. (Pls.’ SOMF, ECF No. 54- 2 ¶¶ PageID:
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18–40). But Plaintiffs do not identify what records they, or Tri-State, requested or reviewed before 
issuing the preliminary audits; what ERISA -required records Defendant failed to maintain or 
produce; or how any such failure affected the ir ability to calculate the required amount of 
contributions. To be sure, one might infer some deficiency in Defendant’s recordkeeping from its 
failure to respond to Tri-State’s preliminary Payroll Audits, or its admission that the final Payroll 
Audits were based “on old information that existed before Defendant took over as the owner and 
operator of the business . . . .” (Def.’s SOMF, ECF No. 59-2 at ¶ 47). But those inferences cannot 
carry Plaintiffs’ burden at summary judgment, where all reasonable inferences must be drawn in 
favor of Defendant as the non-moving party. See Int’l Union v. Skinner Engine Co., 188 F.3d 130, 
137 (3d Cir. 1999). Because Plaintiffs have not shown that Defendant failed to maintain or produce 
records necessary to calculate delinquent contributions in the first instance , the burden of 
production does not shift to Defendant to disprove Plaintiffs’ damages calculation. 
 
Second, even if Plaintiffs had established a recordkeeping deficiency sufficient to shift the 
burden of production to Defendant, Defendant has produced sufficient evidence to rebut Plaintiffs’ 
damages calculation. Defendant relies on the Rappleye declaration and the Tarantino t estimony, 
“[t]he combination of” which, Defendant argues, “create material disputed issues of fact as to the 
existence of inconsistencies and mistakes in the Payroll Audits.” (Def.’s Br., ECF No. 56 at 14). 
The Court agrees. 
 
The Rappleye declaration identifies several categories of employees included in the Payroll 
Audits for whom no delinquent contributions were owed under the CBA: two salaried supervisors, 
a quality-control employee, and a maintenance employee. (Def.’s Ex. D, ECF No. 56- 5 ¶¶ 4–5). 
The CBA categorically excludes “supervisory employees,” “quality inspectors,” and “maintenance 
employee[s]” from the bargaining unit, and therefore does not require contributions on their behalf. 
(Okerson Decl. Ex. A, ECF No. 54-5 at 5). The Tarantino testimony supports the same point. After 
reviewing the Second Audit and the CBA, Tarantino testified that the Second Audit was inaccurate 
because it included contributions for employees, including maintenance staff, for whom Defendant 
was not required to remit contributions under the CBA. (Tarantino Dep., ECF No. 56- 4 at 45:1–
49:17; see Okerson Decl. Ex. A, ECF No. 54- 5 at 5). This evidence —that certain employees 
categorically excluded by the CBA were nevertheless included in the Payroll Audits —creates a 
genuine dispute as to the accuracy of Plaintiffs’ asserted delinquent contributions and, by 
extension, the penalties calculated from those contributions. See Cent. Pension Fund of Int’l Union 
of Operating Eng’rs & Participating Emps. v. Murphy’s Tire, Inc., No. 97-814, 1998 WL 865594, 
at *9 (N.D.N.Y. Dec. 9, 1998) (denying summary judgment where two affidavits “assert facts that 
would cast doubt upon the auditor’s calculation”); Sullivan v. Aloisio, No. 95- 7456, 1997 WL 
587653, at *4–5 (N.D. Ill. Sep. 17, 1997) (denying summary judgment where defendant’s affidavit 
created a factual dispute by stating that he performed non-covered work); State Electric, 2006 WL 
2228863, at *7 ( noting that “an employer’s affidavit disputing the benefit funds’ damage 
calculation is sufficient to avoid summary judgment”). The Court may not resolve these factual 
disputes on summary judgment. Plaintiffs’ Motion is therefore denied as to damages. 
 
Finally, the Court briefly addresses Plaintiffs’ request that, at any damages hearing, the 
burden “should shift to the Defendant to prove that Defendant is not obligated to make benefit PageID:
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contributions on behalf of individuals named in the audits.” (Pls.’ Reply Br., ECF No. 59 at 14). 
Because Plaintiffs have not established the threshold showing necessary to shift the burden to 
Defendant, granting that request is not warranted. In any event, even if Plaintiffs had made that 
threshold showing, their request to shift the burden at trial would still fail. Courts applying the 
burden-shifting framework on summary judgment have recognized that the framework does not 
alter the ultimate allocation of the burdens at trial. See N.E.C.A./Local 145 I.B.E.W. Pension Plan 
v. Mausser, No. 18-04045, 2023 WL 1785235, at *6 (C.D. Ill. Feb. 6, 2023) (quoting Chi. Dist. 
Council of Carpenters Pension Fund v. Reinke Insulation Co., 347 F.3d 262, 265 (7th Cir. 2003), 
for the proposition that, “[o]nce a case comes to trial, . . . the burden -shifting structure . . . falls 
away”), aff’d sub nom., Trs. of N.E.C.A./Local 145 I.B.E.W. Pension Plan v. Mausser , No. 24-
1472, 2024 WL 4647936 (7th Cir. Nov. 1, 2024). This Court therefore declines to alter Plaintiffs’ 
burdens at a damages hearing. 
 
 In sum, Plaintiffs are entitled to summary judgment on liability for Defendant’s failure to 
remit contributions owed under the CBA and relevant agreements. They are not, however, entitled 
to summary judgment on damages. 
 
IV. Conclusion 
 
For the foregoing reasons, Plaintiffs’ Motion, (ECF No. 54), is GRANTED IN PART and 
DENIED IN PART. Judgment is hereby entered in favor of Plaintiffs as to Defendant’s liability. 
The Motion is denied as to the amount of damages Defendant owes to Plaintiffs. 
 
 
 
 
 CHRISTINE P. O’HEARN 
United States District Judge PageID:
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