The opinion of the court was delivered by: ROBERT W. SWEET
This action by Plaintiffs William Greenblatt and Peter N. Salzarulo as Chairman and Co-Chairman, respectively, and Trustees of the Joint Industry Board of the Plumbing Industry of the City of New York and Funds Administered by Joint Industry Board of the Plumbing Industry of the City of New York ("the Board"), Peter N. Salzarulo, ("Salzarulo") in his capacity as President of Local Union No. 2 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO, Peter N. Salzarulo, individually, and Local Union No. 2 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, AFL-CIO (the "Local") (collectively, the "Plaintiffs") against Defendant Delta Plumbing & Heating Corp. ("Delta") and Defendant New York Surety Company ("New York Surety") was tried to the Court on May 10, 1993. Upon the following findings and conclusions, judgment will be entered on the complaint.
This action was commenced on November 20, 1989 against Delta to enforce an obligation to the Board arising out of the Collective Bargaining Agreement ("CBA") between the Association of Contracting Plumbers of the City of New York, Inc. and the Local by the filing of a complaint. Service was made through the Secretary of State.
The Board previously filed actions against Delta in the Southern and Eastern Districts to enforce its rights on April 27, 1987, November 4, 1988, and November 20, 1989. Delta filed a petition in bankruptcy on March 21, 1991, and the action was stayed against it. New York Surety moved for summary judgment dismissing the complaint, which motion was denied on May 23, 1991, familiarity with which is assumed.
Following the trial on May 10, 1993, a briefing schedule was set, and final submissions were completed on July 7, 1993.
The Board is the agent of Local Union No. 2 under the CBA with respect to the collection and administration of the various benefits provided under the CBA. Delta is a plumbing contractor subject to the terms and provisions of the CBA which required the posting of a surety bond containing certain guarantees as a condition of supplying union labor to the contractors covered by the CBA.
The CBA provides, among other things, as follows:
16. FRINGE BENEFITS PAID TO PLUMBING INDUSTRY BOARD: The Employer must pay the aforementioned Fringe Benefits, Supplemental Benefits and Contributions, Holiday Fund Benefits and Security benefits to the Plumbing Industry Board as administrative and/or collection agency of the various trust funds herein mentioned . . .
18. FRINGE BENEFITS, FAILURE TO PAY: In the event an Employer shall default in payment of fringe benefits provided for by the terms of this Agreement, it shall be considered the same as failure to pay wages, and all Employees shall not be permitted to work for any Employer who is delinquent in the payment of fringe benefits. Failure to pay fringe benefits is a violation of the laws of the State of New York. In addition, if after proper notification an Employee continues to work for a delinquent Employer, the Union will bring the Employee up on charges before the "Local 2" Executive Board.
22. SURETY BOND TO GUARANTY PAYMENT OF FRINGE BENEFITS: Each Employer shall furnish a bond of an agreed form by a Surety Company approved by the New York State Insurance Department to the benefit of the Joint Plumbing Industry Board to guaranty the payment of the Fringe Benefits herein mentioned, Security Benefits and any and all other benefits and contributions. The amount of the bond shall be in conformity with the action taken by the Joint Finance Committee of the Joint Plumbing Industry Board . . . In the event an Employer fails to pay Fringe Benefits within the prescribed period, the Employer in arrears, in payment of Fringe Benefits, shall be required to pay Fringe Benefits weekly. If delinquent, an Employer shall post a bond double the aforelisted bond requirements. The Plumbing Industry Board shall not issue a job or shop work card ...