Court Finds Union Fund Trustee, Counsel Guilty of Retaliation

The U.S. District Court for the Central District of California found that the trustee for the Cement Masons Southern California Trust Funds Scott Brain and trust counsel Melissa Cook violated sections 510 and 404 of the Employee Retirement Income Security Act (ERISA) when they caused the firing of Cheryle Robbins and Cory Rice. Robbins and Rice, both of whom served the trust funds, filed an internal complaint regarding wrongdoing by Brain as a trustee and cooperated with a federal criminal investigation. 

A Department of Labor (DOL) news release says that after a five-day trial, the court ruled that Brain, Cook and her firm violated ERISA by suspending and then discharging Robbins, and discharging Rice, because they participated in a complaint against Brain’s unlawful conduct to the General President of the Operative Plasterers’ and Cement Masons’ International Association, and because Robbins cooperated in a federal criminal investigation of Brain.

The court ordered the permanent removal of Brain as a trustee. It also ordered the permanent barring of Brain, Cook and her law firm from serving the Cement Masons Southern California Trust Funds. In addition, the court ordered Cook and her law firm to repay all attorneys’ fees she billed the trust funds for the actions she took in retaliating against whistleblowers Robbins and Rice.

The decision follows the DOL’s August 2015 success in obtaining $630,000 in lost wages and damages for Robbins, Rice and another worker victimized by Brain and Cook.

The case stemmed from the activities of workers who reported on Brain’s interference with collections and contributions from unionized employers. In 2011, Robbins, director of the trust funds’ audit and collections department, responded to a federal criminal investigation into Brain’s activities with contractors. The same year, she and Rice, who worked for a third-party administrator to the trust funds (American Benefit Plan Administrators, now, Zenith American Solutions), participated in an effort to complain about Brain’s interference with efforts to collect delinquent contributions from contractors. Within weeks of this conduct, Robbins was suspended. Less than six months later, both Robbins and Rice were fired.

The court said Brain and Cook “used their positions and influence to cause the other trustees to vote in favor of” suspending Robbins. Months earlier, the court found, Brain and Cook pressured Zenith into firing Rice for his involvement in efforts to make an internal complaint about Brain. 

Dismissing Cook’s argument that she was somehow immunized from her unlawful conduct because she was an attorney to the trust funds, the court noted the “apparent conflict of interest” Cook had in representing the trust funds while being in an undisclosed “romantic relationship” with Brain, which existed as defendants carried out their retaliatory actions. Reminding lawyers of their ethical duties in California, the court cited California Rule of Professional Conduct 3-310(B), which the court explained “requires that an attorney disclose to a client any personal relationship or interest that he or she knows, or with the exercise of reasonable diligence should know, could substantially affect his or her professional judgment in advising the client.”