Overview

Approach these journals as (a) an opportunity to reflect upon and apply what you learn each week based on the assigned readings, discussions, and activities, and (b) an opportunity to share your knowledge and expertise based on your educational and professional experiences in the past. As a successful professional, you will need good reflective and writing skills. Journal activities offer you the opportunity to further develop these skills.

In Module One, you read the case of Trustees of Empire State Carpenters et al. v. Rodrigue, located in your readings and resources. In this journal, you will reflect upon personal liability as it applies to this case. Specifically, you will discuss:

• Why did the Court find Rodrigue personally liable for the unpaid pension contributions?
• What should Rodrigue have done differently and why?

Directions

The following critical elements must be addressed:

1. Critical Thinking and Reflection: Explain relevant examples of previous learning with a logical thought process.
2. Integration and Application: Demonstrate insightful depth of knowledge on the module content, integrating legal terminology as relevant.

page 828 CASE: NUGGET PROPRIETORSHIP OR DE FACTO CORPORATION? Trustees of Empire State Carpenters Annuity, et al. v. Rodrigue United States District Court, E.D. New York 2017 WL 9280115 Claude Rodrigue, the owner of M.R. Drywall Inc. (MR Drywall), a construction contracting business, entered into a collective bargaining period with the Northeast Regional Council of Carpenters starting in 1994. Over the next 17 years, Rodrigue continued to agree to be bound by subsequent collective bargaining agreements with the union. The last collective bargaining agreement, spanning a term from 2006 to 2011, required MR Drywall to contribute to the union's pension and welfare fund for every hour of work within the union's trade and geographic jurisdiction. The pension fund's collection policy required an employer to furnish its books for audit purposes and mandated that any disputes be resolved by arbitration. The union's pension fund trustees conducted an audit for a period between 2008 to 2011 and concluded that MR Drywall had failed to contribute $438,717.24 to the fund. Unable to resolve the dispute, the trustees sent an arbitration notice by certified mail, which Rodrigue signed. Despite receipt of the notice, Rodrigue failed to appear at the arbitration hearing. The arbitrator found that MR Drywall had violated the collective bargaining agreement and ordered it to pay the pension fund $641,009.32 in unmade contributions; interest; liquidated damages; and audit, attorneys', and arbitrator's fees. MR Drywall did not pay the award. The trustees filed a motion to confirm the arbitration award. They submitted declarations laying out a bewildering fact: There was no record of MR Drywall in the New York State Department of State, Division of Corporations' database. New York State had dissolved MR Drywall in 1997. In other words, Rodrigue was the sole owner, officer, and director of MR Drywall during the relevant period. The trustees asked the court to find Rodrigue personally liable. Rodrigue made three arguments against finding him personally liable but to no avail. Among them, Rodrigue contended that MR Drywall was a de facto corporation. However, the court rejected this argument because Rodrigue had made no steps to form a corporation after MR Drywall was dissolved in 1997. The court spurned Rodrigue's other arguments, stating that Rodrigue's deceptive conduct precluded their applicability. Accordingly, the court held that Rodrigue was personally liable for the $641,009.32 awarded in the arbitration. Source: Trustees of Empire State Carpenters Annuity, Apprenticeship, Labor-Mamt. Cooperation, Pension & Welfare Funds v. Rodrigue, No. 13-CV-5760 (JS)(SIL), 2017 WL 9280115 (E.D.N.Y. Jan. 25, 2017), report and recommendation adopted, No. 13-CV-5760(JS)(SIL), 2017 WL 1180513 (E.D.N.Y. Mar. 29, 2017). page 829 LIMITED LIABILITY COMPANY