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COLAVITO v. HOCKMEYER EQUIP. CORP.

April 8, 1985

In the Matter of the Arbitration Between WILLIAM COLAVITO, as President of SHOPMEN'S LOCAL UNION NO. 455, INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL AND ORNAMENTAL IRON WORKERS, AFL-CIO, Petitioner v HOCKMEYER EQUIPMENT CORPORATION, Respondent


The opinion of the court was delivered by: CONNER

CONNER, D.J.:

Petitioner William Colavito ("Colavito"), as President of Shopmen's Local 455, International Association of Bridge, Structural and Ornamental Workers, AFL-CIO ("the Union"), commenced this action pursuant to the United States Arbitration Act, 9 U.S.C. § 9 ("the Arbitration Act"), and the Labor Management Act, 29 U.S.C. § 185(a). He seeks herein an order confirming three New York arbitral awards rendered against respondent Hockmeyer Equipment Corporation ("Hockmeyer") in connection with alleged violations of a collective bargaining agreement between the Union and Hockmeyer. He also seeks attorney's fees. Respondent has moved to dismiss the petition to confirm on grounds that the Court lacks personal jurisdiction and that petitioner failed to comply with the relevant statute of limitations. In the alternative. Hockmeyer seeks vacatur of two of the three awards under 9 U.S.C. § 10, citing the "evident partiality" of arbitrator Nathan Cohen. For the reasons below, Colavito's petition to confirm is granted in all respects and Hockmeyer's cross-petition is denied.

Background

 Colavito's petition, which was filed on October 7, 1983, involves three areas of dispute. The first concerns Hockmeyer's assignment of non-bargaining-unit employees to perform work previously performed by a foreman named Parilla, following Parilla's involuntary reassignment to another position. The dispute was submitted to arbitration in accordance with the parties' collective bargaining agreement, and hearings were subsequently held before George Moskowitz, an arbitrator appointed by the American Arbitration Association. On October 12, 1982, Moskowitz rendered an award in which he concluded that Hockmeyer had violated the collective bargaining agreement. He ordered respondent to reinstate Parilla to his position as a foreman, and to reimburse another employee for losses he incurred in a layoff resulting from Parilla's wrongful re-assignment. According to Colavito, Hockmeyer has taken no steps to comply with the provisions of the award Petition to Confirm at PP 5-11.

 With reference to the second dispute, the Union asserts that Hockmeyer violated the collective bargaining agreement by giving bargaining-unit work to a non-unit individual. It contends, moreover, that the matter was duly presented to arbitrator Nathan Cohen, and that Cohen rendered an award in favor of the Union on September 10, 1983. The award required that Hockmeyer assign certain work only to employees in the bargaining unit, and that it remedy the violation by making certain contributions to employee benefit trust funds. According to Colavito, respondent has failed to comply with these terms. Pet. to Confirm at PP 13-22.

 Finally, Colavito asserts that Hockmeyer has failed to comply with the terms of another award rendered in favor of the Union by arbitrator Cohen, this one in connection with a dispute over respondent's failure to provide a covered employee with vacation benefits. The award, dated August 29, 1983, directed Hockmeyer to reimburse the employee either in wages or paid time off. Pet. to Confirm at PP 24-29.

 Respondent filed an answer and a counter-petition on November 7, 1983, asserting that its contacts with New York are insufficient to confer personal jurisdiction under New York's Civil Practice Law and Rules ("C.P.L.R."), and that the petition is barred by New Jersey's three-month statute of limitations. For reasons not at all apparent to the Court, Hockmeyer also asserts that Colavito's action fails to state a claim upon which relief can be granted. According to Hockmeyer, these grounds mandate dismissal of Colavito's petition.

 With respect to the two awards rendered by Nathan Cohen, Hockmeyer asserts that they should be vacated for the additional reason that they were "procured by evidence partiality of the arbitrator." Counter-Pet. at p.5, P12. Respondent contends specifically that the awards were improper because Cohen was "compensated by the same funds to which the respondent has been directed to contribute." Id.

 DISCUSSION

 Respondent's attempt to avoid compliance with these arbitration awards on personal jurisdiction and statute of limitations grounds cannot succeed. For the reasons below, Section 9 of the Arbitration Act confers upon this Court both subject matter jurisdiction over the controversy and personal jurisdiction over Hockmeyer. It also provides a one-year limitation period.

 Jurisdiction

 Section 9 of the Arbitration Act provides that if the parties have agreed that "a judgment of the court shall be entered upon the award" and have specified the court, an application to confirm the award may be made in that court. Section 9 goes on to state that when no court is specified in the parties' agreement, an application to confirm may be made "to the United States court in and for the district within which such award was made." The Court of Appeals for the Second Circuit has held that these provisions empower the federal district courts to confirm and enter judgments upon arbitration awards. Reed & Martin, Inc. v. Westinghouse Electric Corp., 439 F.2d 1268, 1276 (2d Cir. 1971). see also Kallen v. District 1199, 574 F.2d 723, 726 n.6 (2d Cir. 1978).

 
The Arbitration Act then provides: Notice of the application shall be served upon the adverse party, and thereupon the court shall have jurisdiction of such party as though he had appeared generally in the proceeding. . . . If the adverse party shall be a non-resident, the notice of the application shall be served by the marshal of any district within which the adverse party may be found in like manner as other process of the court.

 9 U.S.C. § 9. Thus, Congress has manifested its intention to permit a federal court sitting in the district where the arbitration award was rendered to exert personal jurisdiction over the party ...


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