Full opinion text
MEMORANDUM OPINION AND ORDER GUZMAN, United State Magistrate Judge. Pending are the parties cross motions for summary judgment pursuant to F.R.Civ.P. 56(c). Also pending is defendants’ motion to strike certain of plaintiffs’ summary judgment exhibits and a number of plaintiffs’ 12(M) statements. For the reasons set forth below, defendants’ motion to strike is granted in part and denied in part. Plaintiffs motion for summary judgment is denied and defendant Skys’ motion for summary judgment is granted. MOTION TO STRIKE Before ruling on the merits of the parties’ motions for summary judgment, the arguments raised in defendants’ motion to strike must be addressed. In general, defendants’ motion to strike claims that many of the exhibits offered by plaintiffs in support of their motion for summary judgment are unsupported by affidavit or testimony of record and/or otherwise fails to meet the evidentiary standards required on summary judgment. In other instances, defendants complain that though a document may have been used during a deposition, the testimony regarding the document is not sufficient to render it admissible on summary judgment. Defendants finally claim that many of the inferences which plaintiffs have set forth in their 12(M) statement either do not cite admissible evidence or are unfounded because of the breadth of the inferences drawn in comparison to the actual evidence of record. Plaintiffs object to defendants’ filing of this motion to strike arguing that this motion was unnecessary and improper. Plaintiffs argue that defendants could have easily set forth their evidentiary objections to plaintiffs’ proffered evidence in then-response to plaintiffs’ 12(M) statement. We find that defendants’ motion is a proper method for resolving the issues that defendants complain of. FDIC v. Meyer, 781 F.2d 1260, 1268 (7th Cir.1986). However, the motion to strike will be granted only if the complained of materials are essentially unsupported by the record, it is not the function of a motion to strike to resolve conflicting evidence in the record. Defendants’ first argument is that plaintiffs Exhibits/Tabs 2, 3, 10, 11, 13, 16, 23, 24, 25, 26, 27, 28, 29, 32, 33, 34 (pages 9-47), 35, 38, 45, 46, 49, 50 (D and F) are inadmissable because they are unsupported by affidavit or deposition testimony. These documents are as follows: Tab 2 Excerpts from the collective bargaining agreement with Local 63. Tab 3 Excerpts for the collective bargaining agreement with Local 393. Tab 10 A fringe benefit contribution report filed by Contractors for work performed in January, 1993. Tab 11 A time card for employee Vogel-sang for week ending January 8, 1993. Tab 13 Various dispatch papers kept by the Union showing dates on which Contractors called the Local 63 hiring hall for employees. Tab 16 A table showing the officers and directors of United Skys from 1993-1997. Tab 27 A table showing the employees of United Contractors and United Skys and the sources of that information. Tab 18 Lists of United Skys’ employees for year ending 1993. Tab 19 Lists of United Skys’ employees for year ending 1994. Tab 20 Lists of United Skys’ employees for year ending 1995. Tab 21 Lists of United Skys’ employees for year ending 1996. Tab 23 Lists of United Contractors employees for year ending 1993. Tab 24 Lists of United Contractors employees for year ending 1994. Tab 25 Lists of United Contractors employees for year ending 1995. Tab 26 Lists of United Contractors employees for year ending 1996. Tab 28 Reports sent by United Contractors to Local 8 of the Ironwork-ers for fringe benefit contributions. Tab 29 An invoice from Local 8 of the Ironworkers Fringe Benefit Funds to United Contractors for liquidated damages and interest. Tab 30 Two vehicle titles showing the owners as United Skys and United Contractors. Tab 32 A memorandum of action of shareholders and directors of United Skys and United Skys Board of Directors meeting minutes, December 1993 through December 1996. Tab 33 Two consent actions of directors of United Contractors, Inc. one date December 1993 and one dated November 1994. Tab 34 Pages 9 through 47 are various subcontracts between United Skys and general contractors for the installation and manufacture of skylights. Tab 35 Purchase orders issued by United Skys to United Contractors for 1994. Tab 37 A page of the workers compensation insurance policy issue to United Skys and United Contractors. Tab 38 Copies of cheeks payable to United Contractors from United Skys for the period January 1993 through May 1997. Tab 45 A letter from Jerry Johnson of United Skys to Jim Morton of Local 63. Tab 46 Yellow Pages listing for “skylights” in the far northern suburban area of Chicago. Tab 49 Various time cards for employee Aaron Kozak. Tab 50 Four time card on which the name at the top in United Contractors with the word “Contractors” being crossed out and the words “Skys” handwritten above it. Tab D An October 24, 1995 letter form Charles McCartney as president of United Skys to Laura Finnegan on United Contractors’ stationary. Tab F An invoice form United Skys to Laura Finnegan at the firm of Baum, Sigman, Auerbach, Pier-son & Neuman, Ltd. for the cost to produce United Contractors’ general ledger. Plaintiffs point out that twenty of the exhibits listed above, the documents under Tabs 11, 18, 19, 20, 21, 23, 24, 25, 26, 28, 29, 30, 32, 33, 34, 35, 37, 38, 49, and 50 were all produced during the course of the litigation in response to Plaintiffs’ requests for documents. The case law is this circuit is clear: documents produced in response to discovery are self-authenticating. South Central Bank v. Citicorp Credit Services, 863 F.Supp. 635, 645 (N.D.Ill.1994). Further, there is no error to admit as evidence documents that Defendants themselves possess and produced in response to Plaintiffs requests for production of documents. United States v. Brown, 688 F.2d 1112 (7th Cir.1982). In addition to being self-authenticating, the documents produced by Defendants contain Defendants’ own statements and are admissions, not hearsay. Under Federal Rule of Evidence 801(d)(2), admissions by party opponents are not hearsay. A statement or document is an admission under the Federal Rules of Evidence if it is offered against a party and is the party’s own statement in either an individual or a representative capacity or a statement by a person authorized by the party to make a statement concerning the subject. Statements under the Federal Rules of Evidence included both oral and written assertions. F.R.Evid. 801(a). Therefore, defendants’ motion to strike these documents is denied. Defendants also attempt to strike Exhibits 2 and 3 because they were not produced by Plaintiffs during discovery but rather before discovery commenced. These exhibits contain excerpts from the parties collective bargaining agreements. The language in these excerpts have not changed with subsequent collective bargaining agreements and defendants do not argue that any of the terms are no longer binding. Because defendants have admitted they are parties to the collective bargaining agreements and because they do not dispute that any of these terms are no longer binding defendants’ motion to strike Exhibits 2 and 3 is denied. Defendants also complain about Exhibits 10 (Union Contribution Report) and 45 (Letter from Jerry L. Johnson of United Skys to James Morton of the Ironworkers Local 63). These are both documents prepared by defendants. Defendants do not deny that they sent the contribution report and letter to plaintiffs. There is no allegation that the documents are forgeries or that they have been tampered with. Indeed, if this were so, defendant’s, as the authors of the documents, could easily controvert the documents and ask that they be stricken. Instead, defendants merely state that there is no independent authentication. Because the defendants could so easily call into question the accuracy or authenticity of these documents if they wished to do so, we find little danger to the truth finding process in allowing them to be used by plaintiffs. Thus, the motion to strike is denied. The “requisition forms” at Exhibit 13 have been authenticated and are admissible. These are the “dispatch papers” written by the union when Contractors and/or Skys called for workers and were retrieved from the union’s files. Defendants’ counsel deposed Mr. Christos, Local 63’s business agent, and at pages 16 through 27 of the deposition transcript, defendants’ counsel went through each page that plaintiffs attached under Tab 13. Thus, these forms have been authenticated and are admissible. Exhibits 16 and 27 are inadmissible for purposes of this motion because plaintiffs have failed to lay a proper foundation for its admission. Table 2, under Exhibit 27, is a summary and comparison of lists of employees of Contractors, list of employees of Skys and a summary of employees who were paid expenses and payroll checks from Contractors as based on Contractors’ cash disbursement journals. Table 1, under Exhibit 16, is a comparison of the officers and directors of United Skys from 1993 through 1997. This evidence was apparently produced in the defendants’ Annual Reports to the State of Illinois. Federal Rule of Evidence 1006 provides that summaries are admissible evidence where they offer the only practicable means of making voluminous records available to the judge. However, defendants are correct in their argument that a proper foundation has not yet been established as to these tables. Therefore, this Court finds these Exhibits inadmissible under Federal Rule of Evidence 1006 for purposes of this motion only. Defendants’ objection to the documents contained in Exhibit 46, the Donnelly Telephone Directory pages is overruled. These are self-authenticating records under the Federal Rules of Evidence 902(6). Thus, Exhibits 2, 3, 10, 11, 13, 18, 19, 20, 21, 23, 24, 25, 28, 29, 30, 32, 33, 34 (pages 4-7), 35, 37, 38, 45, 46, 49, 50 (D & F) are admissible and defendants’ motion to strike paragraphs 2-5, 15, 16, 19-26, 28-31, 45, 49, 53, 57, 60, 62, 63, 66-67, 69 (second sentences), 70-71, 74, 76, 82-85, 90, 92 (third sentence to end), 93 (first two sentences), 96, 99, 101, 108-110, and the third sentences of 112— 115 are denied. Defendants finally argue that paragraphs 12, 15-16, 33 (second sentence), 33, 46-47, 50-51, 54-55, 58-59, 61 (second sentence), 64 (last sentence), 65, 68-69 (second that third sentences), 70 (first sentence), 75, 76 (first sentence), 78(last sentence), 80, 86, 88, 91 (first sentence), 95, 101, 107, 112 (first and fourth sentences), 113 (fourth sentence), 114 (first and fourth sentences) and 115 (first and fourth sentences) of plaintiffs 12(M) statement should be stricken. With respect to paragraph 12 defendants’ motion to strike is denied. The date of Contractors and Skys incorporation is clearly July 12,1988 and October 9, 1986 respectively but it is.undisputed that Mr. McCartney make the relevant statement under oath. With respect to paragraph 15 defendants motion to strike is denied. Although the cited deposition testimony of Jean Dawson does not completely support this assertion of fact, Exhibit 10 — the contribution report does. With respect to the second sentence of paragraph 16 the motion to strike is denied because Exhibit 13 supports this assertion of fact. Paragraph 33 (second sentence) of plaintiffs 12(M) statement is stricken because it misstates what Paul Matik testified to during his deposition. Paragraphs 41 and 61 (second sentences) will not be stricken because they are supported by the deposition testimony of Heinrikson Paragraph 42 is stricken because this statement is not supported by Heinrikson’s deposition testimony. Paragraphs 46, 47, 50, 51, 54, 55, 58, and 59 are all admissible because these facts are reflected on the face of the defendants’ own documents. Paragraph 64 (last sentence) is stricken because it mischaracterizes the testimony of McCartney. Paragraph 65 is admissible because McCartney’s testimony supports this assertion of fact. Paragraphs 68-69 (second and third sentences), and 70 (first sentence), 75, 76 (first sentence),78 (last sentence) and 107 are all stricken because these statements of fact mischaracterize what McCartney testified to in his deposition. Paragraphs 80 and 91 (first sentence) are admissible because they are supported by the record while paragraphs 86 and 88 are stricken because they call for a conclusion with respect to disputed facts. Paragraphs 95, 101,. 112 (first sentence) are admitted because they are supported by the record. Paragraphs 112 (fourth sentence), 113 (fourth sentence), 114 (first sentence) and 115 (first sentence) are admitted pursuant to the stipulation of.the parties with the phrase “for services rendered” added. Paragraph 115 (fourth sentence) is admitted because this assertion is supported by the face of the cash disbursement journal. Therefore, for the reasons listed above defendants motion to strike is denied in part and granted in part. Finally, this Court strikes the second sentence in paragraph 2 of plaintiffs 12(N) because it calls for a legal conclusion; ¶ 60 b of plaintiffs 12(N) because it is redundant; paragraph 8 of plaintiffs 12(N) because it is disputed; paragraph 10 calls for conclusions and is disputed; paragraph 11 calls for conclusions of the disputed facts that Skys was not subcontracting its work to Contractors but rather “assigning” it; paragraph 19 of plaintiffs 12(N) because this is a disputed issue of fact; paragraph 54 (last two sentences) calls for legal conclusion; paragraph 58-63 of plaintiffs 12(N) because they are redundant, paragraph 17, 18 of plaintiffs 12(N) because it is redundant calls for conclusion of disputed facts and so based upon information and belief; because they are redundant for purposes of Rule 12. The documents they rely upon are certainly admissible but for purposes of establishing the undisputed material facts of this case this Court does not have to keep repeating facts already cited by the parties. BACKGROUND FACTS The background facts are taken from taken from the parties 12(M) and (N) statements pursuant to Local Rule 12. Plaintiffs Architectural Iron Workers Local No. 63 Welfare Fund, Iron Workers’ Mid-America Pension Plan, Iron Workers’ Tri-State Welfare Plan, Architectural Iron Workers Local No. 63 Defined Contribution Fund, Architectural Metal Trainee School Local No. 63, Iron Workers Local 63 Savings Plan, Iron Industry Promotion Fund, Architectural and Ornamental Iron Workers Local No. 63 AFL — CIO, initiated this suit in the United States District Court for the Northern District of Illinois. The plaintiffs allege in their complaint that defendant, United Skys, Inc. (Skys) is the alter ego of defendant, United Contractors, Inc. (Contractors), a wholly owned subsidiary of Skys, and thus responsible for contributions to the funds. Contractors is an Illinois corporation and is the signatory to the collective bargaining agreement between Contractors and the plaintiffs. Skys is not a signatory to the collective bargaining agreements. The agreements between Contractors and Locals 63 and 393 provides that the employer shall pay contributions to the Iron Workers Tri-State Welfare Plan and the Mid-America Pension Plan for all employees who perform work covered under that agreement. (Plaintiffs 12(M), ¶ 5). This suit seeks to require Skys to comply with the collective bargaining agreements between the plaintiffs and Contractors. SKYS AND CONTRACTORS Skys was established by Charles McCartney in 1986 and was officially incorporated on or around October 9, 1986. (Plaintiffs’ 12(M), ¶ 11 and Defendants’ 12(M), ¶ 1). Skys’ principal place of business is 702 Magna Drive, Round Lake, Illinois. (Plaintiffs 12(M), ¶ 13). Skys is not a union shop and has never been a party to any collective bargaining agreement. (Def.l2(M), ¶ 15). Skys commonly abbreviates its name as USI. (Plaintiffs 12(M), ¶ 13). Skys is a designer, fabricator, and manufacturer of large architectural skylights, atriums, and Glashouse pool enclosures with moveable roofs. (Def.l2(m), ¶ 2). Skys sells its Glashouse pool enclosures to distributors around the country. These Glashouse pool enclosures are a standardized product with a fixed pricing schedule (Defendants’ 12(M), ¶7) and the installation of these pool enclosures is not in issue in this litigation. Skys is best known for developing complex, state-of-the-art skylight structures, of architectural significance and for improving upon pre-existing engineering standards with respect to existing skylights through the use of new materials and processes. (Defendants’ 12(M), ¶ 5). Its “customers” for its custom structural skylights are architects and developers throughout the continental United States. Skys architectural skylight work involves designing, engineering, and manufacturing a custom product, so most of its sales with respect to this custom product result from a competitive bidding process, dants’ 12(M), ¶ 8). (Defen- Skys employs engineers, who design and engineer the skylights; sales personnel, who pursue sales leads and negotiate new projects; and estimators, who develop bids with the assistance of the engineers. (Defendants’ 12(M), ¶ 39). These employees work primarily out of Skys’ production facility in Round Lake, Illinois, but on occasion travel to job sites around the country to supervise and monitor the progress of the installation projects. (Id). Skys also employs production employees which include fabricators, finishers and assistants. (Defendants 12(M), ¶ 40). These employees work exclusively at Skys’ production facility in Round Lake, Illinois and it is undisputed that these production employees do not travel and do not perform installation work. (Id). Skys also employs administrative employees including an office manager, Candice Heinrikson and Paul Matik, an accountant. (Defendants’ 12(M), ¶ 41). Most bid solicitations for custom structural skylights requires a proposed design and cost estimate which includes estimates for design, engineering, fabricating,- manufacturing work and installation. (Defendants’ 12(M), ¶ 9). Plaintiffs claim that estimates for the installation portion of these custom skylights is not necessarily required but defendants dispute this assertion arguing that Skys is ultimately responsible for proper installation of the skylights. (Defendants’ 12(M), ¶ 42). When Skys is approached by a customer (usually a General Contractor) for a bid for one of its custom skylights Charles McCartney, Skys’ president, and Hans Abramat, one of Skys directors, would review the bid documents received from its customers. (Plaintiffs’ 12(M), ¶ 70). Abramat would then generate an estimate to complete the work which includes engineering, manufacturing, and installation. (Id). McCartney would review the estimate generated by Abramat with respect to the installation aspect and, depending on how it looked, would approve it for Contractors. (Id). McCartney would review the Skys estimate and ultimately Skys would bid a lump sum to provide materials and/or labor. (Id). Each time Skys was awarded a skylight design and fabrication project, its Project Manager, Engineering Manager, Plant Manager and other engineers would meet to discuss the project approach, resources and budget. The engineer assigned to the project would prepare a preliminary design under the supervision of the Engineering Manager. A structural engineer would then review the preliminary design and engage in considerable consultation with materials vendors to determine the content, strength and flexibility of the vendors’ products in varying sizes, under varying temperatures and when used in combination with different materials. They would also test different combinations of materials to prove that the preliminary design will perform properly and may make modifications in the design or materials as a result. Skys would then review the recommendations of its employees as well as the proposed design and on occasion would suggest additional modifications before the final design was submitted to the requesting architect. This “design and engineering process” required hundred of hours of work and culminates in precise materials specifications and drawings of each pane of glass and silicon, each piece of steel, aluminum or plastic, and each screw, clamp, or bead of caulk. (Defendants’ 12(M), ¶ 13). Once Skys’ designs are approved by the requesting architect, Skys’ Materials Manager arranges for the purchase and delivery of the necessary materials to Skys’ facility. After the materials are received and allocated by the Materials Manager, Skys’ Plant Manager establishes a production schedule and the material received goes into “fabrication.” Skys’ fabrication engineers develop the precise geometry of the structure, cutting lengths, quantities and connections to enable the shop fabricators to start assembling the base product. The fabricators punch, drill, and cut aluminum extrusions. Once the extrusions are complete, Skys’ finisher effectively smooths the edges of the base product to ensure that connections and interfaces are sound. A Skys’ engineer, manager, and superintendent then review the product, process and proposed application. If the product meets specifications, it is shipped or otherwise delivered to the work site (Defendants’ 12(M), ¶ 14) and is now ready for installation. What happens after this product is delivered to the work site and is ready for installation is at the heart of this litigation and calls into question the role of Skys superintendents. Plaintiffs maintain, that Skys used its superintendents to perform the required installation of its custom skylights to the exclusion of union workers. (Defendants’ 12(M), ¶ 50, Plaintiff ¶ 71). In particular, plaintiffs’ claim that Skys had installation contracts with Flower City, Architectural Metals, Mellon Stuart MKK, Morse Diesel, George Hyman and Walter Josylyn and for these contracts Skys performed the installation. Skys denies that it did the installation on these projects arguing that it subcontracted the installation work to its wholly owned subsidiary Contractors. Contractors offers its corresponding purchase orders from Skys to Contractors which memorialize Contractors agreement to handle the installation work on these projects. (Defendants’ ¶¶ 69 and 117). Contractors was incorporated by Skys as a wholly owned subsidiary to perform construction site skylight installation on or around July 12, 1988. (Plaintiffs’ 12(N), ¶ 16 & 17). Contractors President is also Charles R. McCartney. (Plaintiffs’ 12(M), ¶ 6). McCartney testified in his deposition that Contractors was established within a year of the establishment of Skys (Plaintiffs’ 12(M), ¶ 12) and was started for the purpose of installing steel and glass windows manufactured by Skys. (Plaintiffs’ 12(M), ¶ 9). It is disputed whether Contractors performed installation work for any other manufacturer of skylights other than Skys. (Defendants’ 12(N), ¶ 68). Contractors’ “offices” consists of rented trailers stationed at each job site but it is undisputed that Contractors principal place of business, as a matter of law, is 702 Magna Drive, Round Lake, Illinois. Its telephone number is the same as Skys (847) 546-7776. (Plaintiffs’ 12(M), ¶7). (Defendants’ 12(M), ¶ 25, Plaintiffs 12(M), ¶ 7, and Plaintiffs’ 12(N), ¶ 25). The trailers typically contain a desk, a phone, a fan, tools and small equipment.(Plaintiffs’ 12(N), ¶ 25). Contractors owns small tools, and its expenditures for the purchase of the tools are reflected on its cash disbursement journal, frequently with a notation like “tools” listed next to the payee. (Plaintiffs’ 12(N), ¶ 26). Contractors’ commonly abbreviates its name as UCI. (Plaintiffs 12(M), ¶ 8). Because Skys’ work is not limited to any geographic area Contractors does not invest in costly capital expenditures with respect to the equipment required to do the installation but instead rents such equipment from local suppliers at a given job site. (Defendants’ 12(M), ¶ 22). Examples of the types of equipment rented by Contractors include trailers, scaffolding, man lifts, welding equipment and cranes and representative entries from Contractors’ cash disbursement journals reflects certain equipment rental expenditures. (Plaintiffs’ 12(N), ¶¶ 23 & 24.) According to defendants when an installation project was awarded by Skys to Contractors, the subcontract is memorialized by a purchase order reflecting the date of Skys’ order, the location of the job and a description of the work to be provided by Contractors. (Defendants’ 12(M), ¶ 51). It is undisputed that nobody would sign the purchase orders on behalf of Contractors because Contractors automatically accepted the purchase order as the wholly-owned subsidiary of Skys. (Plaintiffs’ 12(M), ¶ 71). The purchase orders between Skys and Contractors do not provide for progress payments. The form subcontracts between Skys and the other installation companies do provide for progress payments. (Plaintiffs’ 12(M), ¶ 76). Paul Matik testified in his deposition that when he worked for Turner Construction, the practice was usually that a subcontractor had to submit a sworn statement that labor and supplies had been paid to receive progress payments. (Id). Although Matik testified such a sworn statement was required in Illinois, he could not say whether Contractors ever submitted sworn statements to receive progress payments from Skys. (Id). In his experience with Turner it was unusual for progress payments to be once a week. (Id). The progress payments that Skys makes to Contractors are much smaller than those Skys normally makes to outside subcontractors but are made more frequently. Skys has made small frequent progress payments to Contractors because it monitors Contractors’ cash flow. Skys has a legitimate interest in keeping Contractors’ cash flow positive so that Contractors can meet its obligations to others (including laborers) and thus continue its installation work. (Defendants’ 12(N)(3)(b), ¶ 120). Skys makes progress payments to Contractors without fear that Contractors would take the money and fail to complete the installation project. (Defendants’ 12(N)(3)(b), ¶ 121). According to defendants, because Skys was ultimately contractually responsible for installation of the custom skylights (Defendants’ 12(M), II42) Skys employed superintendents who, through coordinated meetings with Skys’ engineering and production staff, became thoroughly familiar with the engineering, process and materials specifications for each custom project. (Id). This specialized knowledge allows Skys’ superintendents to oversee the installation of the custom product (Id). It is disputed whether these superintendents are common in the industry and whether they were in fact performing installation work. (Plaintiffs’ 12(N), ¶ 42). . In addition to their meeting with Skys’ engineers and production employees, Skys’ superintendents regularly traveled to construction sites where installation of Skys’ products is being performed by a subcontractor, whether the subcontractor is Contractors, or any other contractor and whether the construction site is in the Chicago-area, or located in some other state. (Defendants’ 12(M), ¶ 43). McCartney testified that in the last two years of operations, Skys received bids from installations subcontractors other than Contractors. (Defendants 12(N), ¶ 72). When Contractors was awarded installation work it was Skys’ superintendents such as Morman,' Donat and Vogelsang who would hire the necessary laborers from the appropriate .local union hiring halls.(Id). At the job sites, Skys’ superintendents review specifications, monitor the general progress of the work and other correction if specifications are not being met or if the materials used are not performing consistently with prior test results. (Id.). To accomplish these assessments, they used measuring devices and ladders owned by Skys which they transport to the site in trucks owned by Skys. The following individuals were at one time employed by Skys as superintendents: Steven Mars, Paul Mormon, Jack Donat, Aaron Kozak, Jeff Popalorum, Don Palma, Brad Banks and Terry McCartney. (Defendants’ 12(M), ¶ 44). Donat, Populo-rum, Marrs, Morman, and Palma all originally worked for Contractors on job sites and were initially hired out of the union hall. Each one was offered a position as superintendent for Skys. They agreed and started to wqrk, for Skys. They worked at job sites on behalf of Skys around the country. After working as superintendents and traveling extensively, each one left Skys and returned to installation work. It is disputed whether Contractors, made all of the required contributions when these employees were first hired out of the union hall and it is disputed whether contributions were made once they assumed their positions of superintendent for Skys. (Defendants’ 12(N)(3)(b) ¶ 125; Plaintiffs’ Response ¶ 125). Plaintiffs claim that according to the affidavit of David J. Jensen contributions were never received for these employees. A review of Contractors cash disbursement journals reveals that some contributions were in fact made on behalf of Mars and Moorman. A1 Pierce was also a Sky’s employee who worked in the field. (Plaintiffs’ 12(M), ¶ 41). Plaintiffs’ maintain that these superintendents performed the installation work. (Plaintiffs Response to Defendants’ 12(N)(3)(b) ¶ 125). It is disputed, whether in their work for Contractors they had any supervisory authority over the employees. (Defendants’ 12(N), (3)(b) ¶ 125). Skys’ currently has only one superintendent, Michael Vogelsang. (Id.) It is disputed whether Vogelsang was only employed by Skys since 1988 (Plaintiffs 12(M), ¶ 15) because Vogelsang was reported to the Funds for work performed in January, 1993, as an employee of Contractors. (Plaintiffs 12(N), ¶ 44). The job of Michael Vogelsang is to ensure that United Skys’ product is installed correctly so that United Skys does not incur liability under its contract with the general contractor. (Defendants’ 12(N),(3)(b) ¶ 126). Before Vogelsang worked for Skys he was employed by Turner Construction. It is disputed whether Vogelsang’s job position is common in the industry of architectural skylight design and manufacture. (Defendants’ 12(N)(3)(b) ¶ 128). Vogelsang regularly travels to construction sites where the installation of Skys’ product is being performed by a subcontractor, whether it is Contractors or another sub-contractor, and whether the site is in the Chicago area or out of state. (Defendants’ 12(N)(3)(b) ¶ 131). Vogelsang’s job duties included meeting with Skys’ engineers, management, and production employees each time the plans for a new project are developed. Because the designers and engineers may require new materials or processes for a given job, participating in the meeting allows Vogel-sang to build his base of experience in the industry and gain specific familiarity with the engineering, process, and materials specifications for the given project. (Defendants’ 12(N)(3)(b) ¶ 129). Vogelsang is able to ensure that the installation work that Skys’ subcontracts out is being performed properly by the subcontractor’s laborers and that the engineering concerns raised by the interface between Skys’ product and the rest of the building are being satisfied (Defendants’ 12(N)(3)(b), ¶ 130). On the jobsite, Vogelsang’s activities included monitoring the job progress, ensuring that Skys product is being installed correctly by the subcontractor and in accordance with the job specifications, and consulting with the architects and/or developers (Defendants’ 12(N)(3)(b), ¶ 132). Because Skys’ products (which can range from skylights, to complex atria) are custom designed and made, every time a new design, material and/or manufacturing technique is used, it affects how the product must be installed. As a result, Vogel-sang works closely with the subcontractors’ laborers, whether the subcontractor is Contractors or some other subcontractor to instruct the laborers how to work with Skys’ product, and, where necessary, demonstrate new techniques to the laborers. Vogelsang also measures Skys’ product and checks the integrity of connections and seals (Defendants’ 12(N)(3)(b) ¶ 133). It is disputed whether Vogelsang actually installed the custom skylights for the subcontractors. (Defendants’ 12(N)(3)(b), ¶ 134). Plaintiffs claim he did. None of Skys’ superintendents had any authority to hire, terminate, or exercise any supervisory authority over any other employee of Skys. (Defendants’ 12(M), ¶ 46). Rather Skys’ Plant Manager and Skys’ President, Charles McCartney, had the authority to supervise the production and engineering staff, (Defendants 12(M), ¶ 47), including but not limited to the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, discipline, direct or to hear, adjudicate or adjust any complaint or grievance, of Skys’ plant manager, superintendent, sales and Administrative Employees. (Defendants’ 12(N), ¶ 48). During the years 1998 through 1997 Skys employed approximately 19 to 39 employees (Exhibits 19 and 19). It is disputed whether Skys’ employees work on a permanent, regular basis although it is undisputed that some have been employed by Skys for as long as 12 years. (Defendants’ 12(M), 1138, Plaintiffs 12(N), Tabs 5, 6, 7, 8). Plaintiffs allege that in 1993, there were 12 employees who were terminated; some having worked a few months, some having worked a couple of years. (Id.) In 1994, 19 employees were terminated; some having only worked a few months in 1994, some having worked a few years. (Plaintiffs 12(N), tab 6). In 1995, 32 employees were terminated; some having worked a number of years, some having worked a few months. (Plaintiffs 12(N), Tab 7). In 1996,14 employees were terminated; some having worked a few months, some having worked a number of years. (Plaintiffs 12(N), Tab 8). Contractors does not employ any management employees because of the sporadic nature of its work. (Defendants’ 12(M), ¶ 45). Further, Contractors’ employees were hired on a job-by-job basis, not on a permanent basis, in part because Contractors did not always have an installation job to perform, and in part due to the fact that it performs installation work in whatever state the job is located in. (Defendants’ 12(M), ¶ 32). These laborers work exclusively at construction job sites installing skylights (Defendants’ 12(M), ¶ 34) and the laborers would pick up their paychecks from the trailer which served as Contractors’ office at the work site. At no time has McCartney ever hired, transferred, suspended, laid off, recalled, promoted,, assigned, rewarded, discharged, directed, or heard or adjudicated or adjusted any complaint or grievance of, any bargaining unit employee of Contractors. Likewise, at no time has McCartney ever directed Skys’ superintendents to take any such action with respect to a bargaining unit employee of Contractors. Plaintiffs allege that the installers performing the installation work on behalf of Contractors were not always hired from the union hall but were in reality Skys’ superintendents and that a comparison of Skys’ and Contractors’ payroll records establishes that Contractors employed Skys’ installers to perform the installation work. (Plaintiffs’ 12(M), ¶¶ 38-63). Skys denies that its superintendents were performing installation work and claims that it is not dependent upon Contractors for installation work. (Defendants’ 12(M), ¶ 52). In fact, on at least three occasions Skys subcontracted work to other installers. (Plaintiffs 12(M), ¶68, Plaintiffs 12(N), Tab 4, pp. 13, 118). Examples of other installation subcontractors hired by Skys in recent years include ABC Erecting, Midwest Erectors and Special P Erectors. (Id.) There are other subcontractors, both in the Chicago area and around the United States, which are in the business of installing skylights and it is undisputed that Skys has subcontracted installation work to entities other than Contractors. If Skys awards a 'subcontract for installation work to an outside firm, the award is memorialized by a Standard Form Construction Subcontract published by the Associated General Contractors of America, the America Subcontractors Association, Inc. and the Associated Specialty Contractors, to which minor modification are made, depending on the nature of the particular job. (Defendants 12(N)(3)(b), ¶ 118). It'is undisputed that Skys has never required Contractors to execute a Standard Form Construction Contract or to provide the progress payment application or lien waives referenced in Section 14 of the Standard Form Construction Subcontract as it does with outside subcontractors. This is because Contractors is a wholly-owned subsidiary and would not be expected to have any disputes with Skys with respect to its obligations. (Defendants’ 12(N)(3)(b), ¶ 119). COMMON OFFICERS AND DIRECTORS For the year ending July 1, 1993, Charles McCartney was the president of Contractors; Paul Matik, Jr. was the Secretary of Contractors; and Charles McCartney was the sole director of Contractors. (Plaintiffs’ 12(M), ¶ 19). As of the year ending October 1, 1993 Charles McCartney was the president of Skys, Paul Matik, Jr. was the secretary of Skys as well as the treasurer; and Hans Abra-mat was the sole director of Skys. (Plaintiffs’ 12'(M), ¶ 20). . For the year ending July 1, 1994 Charles McCartney was the president of Contractors; Paul Matik, Jr. was the Secretary of Contractors; and Charles McCartney was the sole director of Contractors. As of the year ending October 1, 1994, Charles McCartney was the president and a director of Skys; Paul Matik, Jr. was the secretary, treasurer and a director of Skys; and Hans Abramat was a director of Skys. (Plaintiffs’ 12(M), ¶ 22). As of the year ending July 1, 1995, Charles McCartney was the president and a director of Contractors; Paul Matik, Jr. was the secretary, treasurer, and a director of Contractors; and, Hans Abramat was a director of Contractors. (Plaintiffs’ 12(M), ¶ 23). As of the year ending October 1, 1995, Charles McCartney was the president of Skys; Paul Matik, Jr. was the secretary and treasurer of Skys; and Hans Abramat was the sole director of Skys. (Plaintiffs’ 12(m), ¶ 24). As of the year ending July 1, 1996, Charles McCartney was the president and a director of Contractors;, and Paul Matik, Jr. was the secretary and treasurer of Contractors. (Plaintiffs’ 12(M), ¶ 25). As of the year ending October 1, 1996, Charles McCartney was the president and a director of Skys; Paul Matik, Jr. was the secretary, treasurer and a director of Skys; and, Russell Jeschke was a director of Skys. (Plaintiffs’ 12(M), ¶ 26). It is disputed whether an annual report was filed by Contractors for the year ending July 1, 1997. (Plaintiffs’ 12(M), ¶ 27). In the year ending October 1, 1997, Skys’ president, secretary, treasurer and director was Charles McCartney. (Plaintiffs’ 12(M)^28). There were no other officers and directors. COMMON MANAGEMENT Skys’ president has always been Charles McCartney. (Plaintiffs’ 12(M), ¶ 30). Contractors’ president has always been Charles McCartney. McCartney’s salary was paid by Skys. (Plaintiffs’ 12(M), ¶ 31). Skys’ accountant was Paul Matik, Jr. who was also General Counsel for Skys. (Plaintiffs’ 12(M), ¶ 32). Contractors’ accountant was Paul Matik, Jr. his salary was not paid by a check from Contractors, but by a check from Skys. (Plaintiffs’ 12(M), ¶ 33). Skys’ office manager, from 1990-1997, was Candice Heinrikson. Heinrikson was McCartney’s assistant and secretary when she first started with Skys in 1990. As office manager, she was assistant to the sales department and the engineering department. She would investigate problems or discrepancies with billing and resolve them. Heinrikson’s responsibilities also included ensuring all billings were done completely and correctly on time. She would distribute contracts that would come in on a job, make copies of those contracts and distribute the contracts to McCartney, Matik, and Abramat. When she first started in 1990, she did not have keys to the building, but she did possess keys to the building in the last couple of years of her employment with Skys. (Plaintiffs’ 12(M), ¶ 34). Candice Heinrik-son would write checks from time to time on Contractors’ bank accounts for Contractor’s expenses, calculate the payroll and prepare fringe benefit contribution reports for Contractors’ employees. For her services to Contractors, Ms. Heinrikson was paid by Skys. Candice Heinrikson was not an employee of Contractors. (Plaintiffs’ 12(M), ¶ 35). McCartney testified that Contractors was getting out of the installation business because it was too difficult to supervise and Contractors was losing money for Skys. (Plaintiffs’ 12(M), ¶ 100). COMMON EMPLOYEES In answer to Plaintiffs’ first Set of Interrogatories, No. 10, Contractors responded that Marrs, Donat, Morman, Vogelsang and Turnage were at various times Contractors’ supervisors, job superintendents, forepersons as well as managerial personnel who at various times had authority to formulate and effectuate some management policies, or to recommend or to exercise discretionary action independently of established policy. (Plaintiffs’ 12 (M), ¶ 36). Marrs, Donat, Morman and Vogel-sang have all been paid by both Skys and Contractors at various times between January 1993, and December, 1996. (Plaintiffs’ 12(M), ¶ 37). In answer to Plaintiffs’ First Set of Interrogatories, No. 9, Contractors responded that Marrs, Donat, Morman, Vogelsang and Turnage were at various times Contractors’ supervisors, job superintendents and forepersons. (Plaintiffs’ 12(M), ¶ 38). According to Charles McCartney’s testimony Marrs, Donat, Morman, Vogelsang, and Banks, Populoram, T. McCartney and Kozak were all employees of Skys, employed at different times between 1993 and 1996 to supervise the installation of skylights by Contractors’ employees at the site where the skylights were installed. (Plaintiffs’ 12(M), ¶ 39). Skys’ payroll lists, for the period of 1993 through 1996, show Marrs, Donat, Morman, Vogelsang, Banks, Populoram, T. McCartney and Ko-zak under the classification “field”. (Plaintiffs’ 12(M), ¶ 40). As indicated earlier, Don Palma and A1 Pierce were also listed as working in the field. Plaintiffs’ first Set of Interrogatories No. 6, asked Contractors to identify “every person or firm who was employed for the purpose preparing financial, accounting and payroll records and including those persons or firms employed as independent contractors.” Contractors responded that those persons included Therese Manuel, payroll clerk, United Contractors, Inc. Paul Matik, Jr. c/o United Contractors and Candice Heinrikson c/o United Contractors, Inc. Neither Manuel, Matik, nor He-inrikson appear on Contractors’ pay lists or cash disbursements. (Plaintiffs’ 12(N), ¶ 106). In calendar year 1993 Donat and Popu-loram received compensation for services rendered from both Skys and Contractors. (Plaintiffs’ 12(M), ¶ 43). In calendar year, 1994, Jack Donat received compensation for services rendered from both Skys and Contractors. (Plaintiffs’ 12(M), ¶ 43). Skys’ 1993 year end employee lists show Banks, Donat, Maars, T. McCartney, Mor-man Populoram, Palma, Pierce and Vogel-sang as employees. (Plaintiffs’ 12(M), ¶ 44). There were also approximately 29 other employees at Skys at this time. (Exhibit 18). Contractors’ 1993 payroll lists show Populoram, Donat, Morman, and Palma as employees. (Plaintiffs’ 12(M), ¶ 45). There were also approximately 81 other employees employed by Contractors for that year. (Exhibit 23). Contractors 1993 cash disbursement journals show payroll checks made payable to Populoram, Donat, Palma, and Morman. (Plaintiffs’ 12(M), ¶ 46). Contractors’ 1993 cash disbursement journals show expense/advance checks made payable to Populoram, Vogel-sang, Maars, Morman, Donat and T. McCartney. (Plaintiffs’ 12(M), ¶ 47). Defendants’ stipulated that in calendar year 1993 Jack Donat, Jeff Populoram and David Palma received compensation for services rendered both from Skys and Contractors. In that same year, Skys’ payroll records show Banks, Donat, Marrs, T. McCartney, Morman, Populoram and Vogelsang as the “Field employees.” In the same year, Contractors’ cash disbursements journals show checks written to Po-puloram, Donat, Palma and Morman. (Plaintiffs’ 12(M), ¶ 112). Skys’ 1994 year end employee lists show Donat, Marrs, T. McCartney, Morman, Po-puloram, and Vogelsang as employees. (Plaintiffs 12(M), ¶ 48). There were approximately 29 other employees with Skys at this time also. (Exhibit 19). Contractors’ 1994 pay lists show Banks, Donat, Populoram, T. McCartney, Morman, Pal-ma, Turnage as employees. (Plaintiffs 12(M), ¶ 49) as well as approximately 100 others. (Exhibits 24) Contractors’ 1994 cash disbursement journals show payroll checks were written to Populoram, Marrs, Donat, and Morman with the initials w.e. next to the entry. (Plaintiffs’ 12(M), ¶ 50). Contractors’ 1994 cash disbursement journals show expense and/or advance checks made payable to Vogelsang, Marrs, Donat, Populoram and Moorman. (Plaintiffs’ 12(M), ¶ 51). Donald Palma was an employee of Skys in 1993 and 1994. (Plaintiffs’ 12(M), ¶ 61). Donald Palma was reported to Local 8 of the Iron Workers by Contractors for iron work performed in August, September and October, 1993. (Plaintiffs’ 12(M), ¶ 62). Local 8 of the Iron Workers Fringe Benefit Funds sent an invoice to Skys for liquidated damages and interest for late payments of contributions. The invoice was sent to Contractors. In the top right-hand corner is a note written by a Skys or Contractors employee which states “late because Don Palma changed from USI to UCI.” At the bottom of the invoice, again written by a Skys or Contractors employee, is a note which states “paid 11-11-93 USI No. 5474.” (Plaintiffs’ 12(M), ¶63). Skys’ 1995 records show Kozak, Mor-man, Popularam, Vogelsang, T. McCartney, Donat and Marrs as employees (Plaintiffs’ 12(M), ¶ 52) as well as others. (Exhibit 20). Contractors’ 1995 payroll lists show that Populoram, Donat, and Marrs were on the Contractors’ payroll (Plaintiffs’ 12(M), ¶ 53) as well as approximately 100 others. (Exhibit 25). Contractors’ 1995 cash Journal shows payroll checks written to Popularam, Donat, Mor-man, Kozak, Marrs. (Plaintiffs’ 12(M), ¶ 54). Contractors’ 1995 cash disbursement journals show checks made payable to Vogelsang, Morman, Popularam, Kozek, and Donat. (Plaintiffs’ 12(M), ¶ 55). Skys’ 1996 records show that Vogelsang, Kozak, Morman and Populoram as employ- . ees (Plaintiffs’ 12(M), ¶ 56) as well as others. (Exhibit 21). Contractors’ 1996 records show that Donat, Marrs, Populoram were on the payroll (Plaintiffs’ 12(M), ¶ 57) as well as 75 others. (Exhibit 26). Contractors’ 1996 cash disbursement journals show checks made payable to Mars, Vogel-sang and Morman. (Plaintiffs’ 12(M), ¶¶ 58 & 59). According to defendants’, in calendar years 1995, 1996 and 1997 no person received compensation from both Contractors and Skys. (Defendants’ Stipulation, Exhibit 22). COMMON EQUIPMENT Two vehicle titles produced by the defendants in discovery show that Skys and Contractors jointly own two vehicles. One vehicle is a Dodge D-150 truck; and, the other vehicle is a Ford F-250 track. (Plaintiffs’ 12(M), ¶ 64). Skys’ trucks are used to transport the supervisors and materials to installation sites. (Plaintiffs’ 12(M), ¶ 65). Plaintiffs’ first Set of Interrogatories No. 7, asked Contractors to identify its owned or leased vehicles. Contractors responded that it did not own or lease vehicles. (Plaintiffs’ 12(M), ¶ 102). Contractors’ vehicles are used to transport superintendents to the job sites. (Plaintiffs 12(N), ¶ 55). It is also undisputed that Contractors cash disbursement journals shows a substantial number of entries which reveal that Contractors consistently rented equipment, scaffolds, cranes, etc. throughout the course of its operation. INTERRELATION OF BUSINESS OPERATIONS Skys held regular meetings of the board of directors once year. (Plaintiffs’ 12(M), ¶ 66). Contractors did not have regular meetings of the board of directors (Plaintiffs’ 12(M), ¶ 67). Plaintiffs admit that Contractors’ corporate and financial records are maintained by Skys’ administrative employees at Skys’ facility in Round Lake, Illinois in the ordinary course of business. (Plaintiffs’ 12(N), ¶ 29). Skys paid the rent for both its use and Contractors’ use of the premises at 702 Magna Drive Round Lake, Illinois. Skys entered into the lease agreement with the landlord of the premises at 702 Magna Drive Round Lake, Illinois. (Plaintiffs’ 12(M), ¶ 87). Skys paid for the use of the phone, electricity, and water. (Plaintiffs’ 12(M), ¶ 89). Contractors maintains a separate bank account and cash disbursement journal which reflects expenses such as payroll, equipment rental fees, premiums for workers’ compensation premiums, unemployment tax, and pension and welfare contributions pursuant to the collective bargaining agreement. (Defendants’ 12(M), ¶27). Contractors had separate accounts in states where it does business so that it could pay payroll taxes and insurance to particular state funds. (Defendants’ 12(M), ¶ 66). Paul Matik was the accountant who kept the books and records of Skys and Contractors and testified that gross receipts, sales and use and excise taxes were kept separate, based on the activities of Contractors and Skys, so they were assessed separately. (Defendants’ 12(M), ¶ 57). Skys and Contractors had a single joint workers’ compensation policy. (Plaintiffs’ 12(M), ¶ 78). Between 1988 and 1995, Contractors and Skys had an oral agreement whereby Contractors would be charged by Skys $8,000 per month in exchange for administrative services which were to be performed by Skys’president, Charles R. McCartney, accountant, Paul Matik, Jr., office manager, Candice Heinrikson and various other administrative personnel. (Defendants’ 12(M), ¶ 30). The administrative management fee also included incidental expenses on Contractors’ behalf such as office supplies. (Id). These management fees were reflected on both the consolidating schedule for tax returns for Skys and Contractors and on Contractors’ general ledger. (Id). However, in 1995, Skys’ President, McCartney determined that it was no longer feasible for Skys to continue to charge the management fee to Contractors. It is disputed why Charles McCartney discontinued this management fee arrangement between Contractors to Skys. McCartney testified that this management fee was discontinued because payments on some of Sky’s major contracts were being withheld, while at the same time, continued performance of installation work and modifications were being demanded of Skys. Paul Matik testified that he “became of the opinion that we could no longer figure out what portion-no longer agree to a specific portion of management to charge United Contractors”. (Plaintiffs’ 12(N), ¶ 31.) Plaintiffs admit that Contractors and Skys have an oral management arrangement whereby Skys administrative personnel were and are responsible for maintaining Contractors’ books, records and accounts and for such task as preparing Contractors income taxes and annual reports, processing Contractors’ payroll and for making payments for expenses from Contractors’ bank account on Contractors’ behalf. (Plaintiffs’ 12(N), ¶ 28). It is disputed whether it is common in the industry, for Skys to make advances to Contractors to allow Contractors to meet its payroll obligations and to thus ensure the continued performance of the installation work and requested modifications. (Plaintiffs’ 12(N), ¶ 31). From January 7, 1993 through May 31, 1997, Contractors cashed 192 checks from Skys. (Plaintiffs’ 12(M), ¶74). The payments from Skys to Contractors also appear as entries on the Contractors’ cash disbursement journal. (Plaintiffs’ 12(M), ¶ 77). Contractors’ cash disbursement journals reveal that Contractors operated consistently, on paper, at a negative balance. (Plaintiffs’ 12(M), ¶ 80). Contractors paid no dividends to Skys between January 1993 and May 1997. (Plaintiffs’ 12(M), ¶ 81). Contractors and Skys filed consolidated tax returns for years ending February 28, 1993; February 28, 1994; and February 28, 1995. The consolidating schedules for Contractors show that a management fee of $36,000 was charged to Contractors for services provided by Skys. The management fee charged was $3,000.00 per month. Contractors was not charged a management fee for year ending February 28,1996. Contractors cash disbursement journals show a number of entries. Skys’ check, number 5912, to Contractors show on the memo line “# 417 payroll-7/29/95.” (Plaintiffs’ 12(M), ¶ 108). Skys’ check, number 6270, to Contractors shows on the memo line “to cover McLean bill# 492.” (Plaintiffs’ 12(M), ¶ 109). Skys’ check number 6665, to Contractors shows on the memo line “bal July payr, taxes, etc.” (Plaintiffs’ 12(M), ¶ 110). Contractors cash disbursement journal shows an entry for July 10, 1996 of a deposit from “USI — (for airfare, pay-chex — IRS).” (Plaintiffs’ 12(M), ¶ 111). There are no entries in Contractors cash disbursement journal that show any checks written to Skys for the period of January, 1993 through May, 1997. (Plaintiff 12(M), ¶ 79). However, during the same period, there are no entries in Contractors’ cash disbursement journal that reflects any payment towards the advances. (P1.12(m), ¶ 79). Further, Contractors’ cash disbursement journal reflects that Contractors consistently operated on paper, at a negative balance. (P1.12(m), ¶ 80). When job superintendents, such as Michael Vogelsang, purchased items with their own funds, they were reimbursed from Contractors, if the expense related to installation. Typical expense items would include caulk, installation tools or equipment, such a crane or generator. (Defendants’ 12(N)(3)(b), ¶ 122). When superintendents would travel to an installation job site they were paid travel advances for which they were required to account. The travel advances, and all travel expenses, were paid by Contractors because they related to installation, not to design or manufacture of skylights. (Defendants’ 12(N)(3)(b), ¶ 123). None of the Contractors’ checks identified with “exp” or “adv” is a payroll check. They are checks for reimbursement of expenses or advances. (Defendants’ 12(N)(3)(b), ¶ 124). Defendants stipulated that in calendar year 1994, Jack Donat received compensation for services rendered both from Skys and Contractors. In that same year, Skys’ payroll records show Donat, Marrs, T. McCartney, Morman, Populoram, and Vo-gelsang as employees. In the same year, Contractors’ pay sheets show Banks, Do-nat, Polpuloram, T. McCartney Morman, Palma, as employees. In the same year, Contractors’ cash disbursement journals show checks written to Populoram, Marrs, Donat, and Morman. (Plaintiffs’ 12(M), ¶ 113). Defendants stipulated that in calendar year 1995, for services rendered no person received compensation from both Contractors and Skys in the same year. In the same year, Skys’ payroll records show Do-nat, Kozak, Morman, Populoram, Vogel-sang and Marrs as employees. In the same year, Contractors’ payroll records show that Populoram, Donat, and Marrs were on the Contractors’ payroll. In the same year, Contractors Cash Journal shows checks written to Donat, Populo-ram, Morman, Kozak and Marrs. (Plaintiffs’ 12(M), ¶ 114). Defendants stipulated that in calendar year 1996, no person received compensation for services rendered from both Contractors and Skys. In the same year, Skys’ 1996 payroll records show that Vogelsang, Kozak, Morman, and Populoram were employees. In the same year, Contractors’ payroll lists show that Donat, Marrs and Populoram were on the payroll. In the same year, Contractors’ Cash Journal shows checks written to Marrs and Mor-man. (Plaintiffs’ 12(M), ¶ 115). DEFENDANTS’ RELATIONSHIP WITH THE UNIONS The scope of work covered under the Local 63 collective bargaining agreement is set forth at pages 3 through 7 of the Master Agreement. (Plaintiffs’ 12(M), ¶ 2). The Local 63 collective bargaining agreement provides that the employer shall make contributions to the Architectural Iron Workers, Local 63 Welfare Fund, the Iron Workers’ Mid-America Pension Plan, the Iron Workers, Local 63 Defined Contribution Plan, the Architectural Metal Trainees School and the Industry Advancement Fund and/or the Iron Industry Promotion Fund. (Plaintiffs’ 12(M), ¶ 3). The collective bargaining agreement between Contractors and Local 63 also provides that contributions shall be paid on behalf of those individuals who perform work covered under the agreement. (Plaintiffs’ 12(M), ¶ 4). The agreement between Contractors and Local 393 also provides that the employer shall pay contributions to the Iron Workers’ TriState Welfare Plan and the Mid-America Pension Plan for all employees who perform work covered under that agreement. (Plaintiffs’ 12(M), ¶ 5). Contractors has regularly filed pension benefit contribution reports and made contributions on behalf of many union employees. (Defendants’ 12(M), ¶ 64). It is disputed, however, whether all contributions due and owing were paid. Over the years Contractors employed numerous union workers. (Exhibits 23-27). Local 63 keeps records of requests from employers for persons to perform iron work. Local 63 had records which show that between September, 1993 and November, 1995, a person would call the hall to request iron workers for Contractors and Skys. (Plaintiffs’ 12(M), ¶ 16). These records consistently listed, Vogelsang, Moor-man, Donet, Popularum as the person to see at the work site. (Plaintiffs’ Exhibit 13). In February 1993 Contractors submitted a contribution report to the Funds on behalf of Michael Vogelsang for work performed by him in January 1993. In January 1993 Vogelsang was an employee of Skys. (Plaintiffs’ 12(M), ¶ 90). In 1994, Candy Heinrikson’s daughter, Courtney Heinrikson, who worked part time for Skys during high school, made a clerical error in processing one of Contractors’ monthly contribution reports to the funds. Instead of typing the name “United Contractors” on the report, she typed the name “United Skys.” (Defendants’ 12(M), ¶ 68). When this error was discovered, Skys did not seek a refund for the contribution because Skys’ president determined that the clerical work required to seek a refund was not worth the effort. (Defendants’ 12(M), ¶ 69). In August 1994 Skys submitted a contribution report to the Funds on behalf of employees of Contractors for work performed in June 1994. The contributions were paid by Contractors. (Plaintiffs’ 12(M), ¶ 91). In December, 1994, Jerry Johnson, National Sales Manager for Skys, wrote a letter on Skys’ letterhead stationary to Jim Morton at the Iron Workers, Local 63 asking Morton to type a letter to Turner Midwest confirming that Contractors was signatory to an agreement with Local 63. The language which Mr. Johnson asked Mr. Morton to adopt stated “we have been informed that you are considering Contractors, Inc. as a subcontractor for the skylight trade on the above referenced project. We are pleased to report that USI is a signatory to a collective bargaining agreement with the following trades: skylights”. (Plaintiffs’ 12(M), ¶ 83). In August of 1995, one of the plaintiffs auditors went to Contractors to examine Contractors’ payroll records. (Plaintiffs 12(M), ¶ 15). During the examination of records, the auditor, Jean Dawson, discovered that Contractors reported hours for bargaining unit wor