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June 23, 1995


Neal P. McCurn, Senior U.S. District Judge

The opinion of the court was delivered by: NEAL P. MCCURN


 Given the at times complex legal issues raised by these motions, it is easy to forget exactly what is at stake in this litigation, and that is whether defendant Melvin Smith is eligible for a pension; and if so, is he entitled to continue receiving monthly pension benefits in the amount of approximately $ 188.03, *fn1" or, as Smith maintains, is he entitled to receive pension benefits in an amount greater than that?

 At fifty-two years of age and after having been employed by the plaintiff Company, Chicago Pneumatic Tool Company ("Company"), for twenty-three years, defendant Smith, along with others, was terminated as part of a partial shut-down of the Company's operations. During his employment with the Company, Mr. Smith was subject to a collective bargaining agreement ("CBA") between International Association of Machinists and Aerospace Workers Local Lodge No. 335 ("Local 335") and the Company. The CBA provided that bargaining unit employees, such as Smith, were entitled to receive pension benefits pursuant to the terms of a pension agreement between the Company and Local 335, *fn2" which was attached to the CBA. Both the CBA and the Pension Plan were to remain in effect until August 31, 1984. Affidavit of John E. Roberts (June 29, 1992), exh. A thereto at 35.

a. If any difference shall arise between the Company or the Board and any person who shall be an applicant for a pension as to:
1. the number of years of Service and of Credited service of such applicant in the employ of the Company; or
2. an applicant's right to a pension; or
3. the age of the applicant; or
4. whether an applicant, who shall have been determined to be permanently incapacitated and who shall have at least ten years of such Credited Service but shall not have obtained the age of 65 years, shall have become so permanently incapacitated through some unavoidable cause; such difference may be taken up as a grievance in accordance with the provision of Article XXIII of the [CBA], beginning at Step 4 thereof. *fn3"

 Id., exh. B thereto at 31 (emphasis and footnote added).

 According to the Company, approximately one year after the partial shutdown, effective December 31, 1984, inactive participants in the Pension Plan, as well as other Company pension plans were "'spun off' or transferred into The Terminated Operations Plan for Certain Employees of Chicago Pneumatic Tool Company ("Terminated Operations Plan")." Affidavit of Doris J. Moore (Aug. 13, 1992) at P 2, and exh. A thereto. On August 16, 1990, the Terminated Operations Plan was amended and reinstated, retroactive to January 1, 1989. Id. at P 9. This amendment and reinstatement "reflected the addition of active employees at the Company's Franklin, Pennsylvania operation to The Terminated Operations Plan." *fn4" Id. Importantly, in contrast to the CBA and the Pension Plan, the Company deliberately chose not to include a grievance and arbitration procedure in the Terminated Operations Plan. See Plaintiffs' Memorandum in Support of Their Motion for Summary Judgment and in Opposition to Defendants' Motion for Summary Judgment ("Plaintiffs' Memorandum") at 22-25.

 Slightly more than six years after Smith was terminated from the Company, in January, 1990, he applied for a pension under the Pension Plan. Roberts Aff. at P 10. Before applying for that pension, Mr. Smith had been diagnosed as having several medical conditions, including Parkinson's disease, Bell's Palsy, and degenerative arthritis. Id. Those conditions and ailments rendered him permanently disabled and unable to work, and no one disputes that. Id., exh. J thereto at 8. By letter dated March 21, 1990, the Company denied Mr. Smith's request for a disability pension, explaining that he was not so entitled because he had become disabled after his termination from the Company. Id., exh. C thereto. That letter closed by advising Smith that he would "be entitled to a reduced pension benefit when [he] reach[es] age 60 if you so elect." Id.

 Another one of the defendants, International Association of Machinists and Aerospace Workers, Local Lodge No. 2275 ("Local 2275"), *fn5" filed a grievance, on behalf of Mr. Smith, challenging the denial of his disability pension. Id., exh. D thereto. Consistent with its initial determination that Mr. Smith was not eligible for a disability pension because he did not become disabled while actively employed with the Company, that grievance was denied. Id., exh. E thereto. Local 2275 immediately appealed indicating its desire "to proceed to the next step of the grievance procedure as soon as possible." Id., exh. F thereto.

 A full hearing was conducted before the arbitrator in which the parties were given the opportunity to introduce evidence, call witnesses in support of their respective positions, cross-examine the adversary's witnesses, and file post-hearing briefs. On April 23, 1992, the arbitrator issued his opinion and award. After determining that the issue of arbitrability was properly before him, the arbitrator expressly found Smith's pension grievance to be arbitrable. Roberts Aff., exh. J thereto at 13. In reaching that conclusion, the arbitrator disagreed with the Company's assertion that Smith's grievance was not arbitrable because it was governed by the Terminated Operations Plan, which does not provide for arbitration. Instead, the arbitrator found that Smith's grievance had "nothing whatsoever" to do with the Terminated Operations Plan, but rather he was seeking enforcement of a pension benefit under the original Pension Plan, which did allow for arbitration of certain disputes arising thereunder. Id., exh. J thereto at 14-15.

 Insofar as the merits of Smith's grievance were concerned, the arbitrator found that he was "entitled to commence his deferred pension benefits at an earlier age than 65 or 60 in accordance with the provisions of Section II 4(c) [of the Pension Plan]." Id. at 19. In closing, the arbitrator retained jurisdiction "for the purpose of insuring compliance with this Award." Id. at 21.

 According to defendant Smith, the Company has disregarded the arbitrator's award by giving him a reduced rather than an unreduced pension. Because the Company believed that Smith was only entitled to an actuarily reduced pension if he elected to commence his pension immediately in accordance with the arbitration award, in July, 1991 it agreed to allow Mr. Smith "to apply for and receive an immediate pension reduced in accordance with the attached Table 1 which is the table of actuarial equivalents attached to The Terminated Operations Plan . . . . Id., exh. K thereto. Thus, in the intervening years Mr. Smith has been receiving a reduced deferred pension, which the Company agrees it will not upset even if it ultimately prevails in this litigation. *fn6" Id. Conversely, the Company allows that if it is not successful in this action, "Mr. Smith will be reimbursed for the difference of the benefit paid and any higher pension amount." Id.

 Despite this temporary conciliation, because it disagreed with the arbitrators's award, the Company commenced this action. In addition to the Company, there are five individual plaintiffs: Edwin Harcourt and Bruce Daniels, members of the Company's Retirement Plan Committee, as well as James E. Hoover and Carolyn A. Graham, members of the Company's Board of the Funded I.A.M. Pension Plan (the Local 335 Pension Plan), and Doris Moore in her capacity as a member of both of those entities. *fn7" In addition to Mr. Smith and Local 2275, also named as a defendant in this action is the International Association of Machinists and Aerospace Workers ("the International"). The two Locals referenced herein, 2275 and 335, are affiliates of that International. Roberts Aff. at P 24.

 Jurisdiction in this case is predicated upon two separate statutes: (1) section 301(a) of the Labor-Management Relations Act ("LMRA"), 29 U.S.C. § 185(a), and (2) section 502(a) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a). The Company sets forth three separate "counts" or causes of action in its first amended complaint. In the first cause of action, the Company seeks "an order declaring that [the Pension Plan] Board's determination of the amount of pension payable to Defendant Melvin Smith is correct and in full compliance with the terms of the Terminated Operations Plan and the Prior Plan [the Pension Plan]." First Amended Complaint ("Complaint") at P 24. In its second and third causes of action the Company seeks to set aside and vacate the arbitration award. More specifically, in the second cause of action the Company alleges that vacatur is mandated because the arbitrator lacked jurisdiction to decide Smith's grievance in that the Terminated Operations Plan had no provision for arbitration. The third cause of action, also seeking vacatur, alleges that the award "is patently at odds with the terms of the Prior [Pension] Plan and the Terminated Operations Plan[.]" Id. at P 34. The Company further alleges that the award "is not founded on the terms of either Plan, and [it] exceeds the authority of the Arbitrator." Id. Based upon the foregoing allegations, in addition to seeking an order as described in its first cause of action, the Company seeks an order "enjoining Defendants from challenging Plaintiffs' determination of the rights of Defendant Melvin Smith[,]" as well as an order "setting aside and vacating the Award of [the] Arbitrator[.]" Id. at 7.

 Local 2275 did not sit idly by while the Company commenced this action. At the same time the Company was commencing this action, defendant Local 2275 was also commencing an action to confirm the arbitration award. Affidavit of Alan R. Peterman (July 6, 1992) at P 9. That action was instituted in the United States District Court for the Western District of Pennsylvania. Id. By stipulation, on June 10, 1992, Smith filed an amended answer in this action, interposing a counterclaim pursuant to section 301 of the LMRA, seeking confirmation of the arbitration award, as well as denial of the Company's application to vacate that award. Amended Answer to Plaintiff's [sic] First Amended Complaint ("Answer") at P 33 and p. 10, P d. In addition to that counterclaim, defendants enumerate five separate affirmative defenses. Eventually the parties also stipulated to dismissal of Local 2275's Pennsylvania action. Peterman Aff. at P 10.

 Defendants are now moving for summary judgment on their counterclaim, seeking confirmation of the arbitration award. They offer three possible grounds for confirmation. First, the arbitration award is enforceable because the arbitrator had the authority to decide that dispute because it arose under the terms of the terminated *fn8" CBA and Pension Plan and the dispute was arbitrable under those Agreements. The defendants also argue that the award is enforceable because it "took its essence" from the CBA and Pension Plan. Id. at P 11(a). Second, the arbitration award should be confirmed because, according to the defendants, by its actions the Company selected the grievance and arbitration process as the method of determining Mr. Smith's entitlement to a pension under the Terminated Operations Plan; and the defendants continue to press their argument that the award "took its essence" from the CBA and Pension Plan and is thus enforceable. Id. at P 11(b). Finally, the defendants assert that under Pennsylvania law, which they contend provides the governing statute of limitations, the Company's action to vacate the arbitration award is not timely, and thus the defendants' motion seeking confirmation of that award should be granted. Id. at P 11(c). Alternatively, if the court declines to confirm the arbitration award, defendants Smith and the International Union seek dismissal of the complaint on the basis that the complaint fails to state a cause of action as against them. Insofar as the Company's ERISA cause of action is concerned, the defendants are seeking dismissal of the same on the grounds that the plaintiffs lack standing. *fn9"

 Last, if the court grants the defendants' motion for confirmation, they are seeking attorney's fees pursuant to section 502(g) of ERISA, 29 U.S.C. § 1132(g), on the theory that they would be a prevailing party in an action to enforce a participant's pension rights. As an alternative basis for seeking attorney's fees, the defendants ask the court to rely upon its "inherent power" to make such an award, claiming that the Company brought this action in bad faith. Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Defendants' Memorandum") at 28.

 A little over a month after defendants filed their motion, the Company also filed a motion seeking summary judgment in its favor on the three causes of action alleged in their complaint. In addition, the Company is seeking summary judgment on defendants' counterclaim, which seeks confirmation of the arbitration award. In making this motion, the Company argues, not surprisingly, that its action is not time barred. Next the Company asserts that Smith's pension grievance is not arbitrable because it arose after the termination of the CBA and Pension Plan. Alternatively, the Company asserts that the arbitration award must be vacated because "it is not founded in the terms of Melvin Smith's Pension Plan." Plaintiffs' Memorandum at 25. Even if the court finds that the arbitration award should be allowed to stand, the Company maintains that the fiduciaries correctly determined the amount of Smith's pension, and thus they are entitled to summary judgment, finding as a matter of law that the Pension Plan Committee's determination as to the monthly amount of Smith's pension benefit is not arbitrary or capricious. The Company's penultimate argument is that the International is an indispensable party to this action, and thus its motion to dismiss should not be granted. Finally, the Company counters that the defendants are not entitled to recover their attorney's fees.

 The court will consider each of these many arguments in turn.


 I. Summary Judgment

 Given that the parties are no doubt intimately familiar with the summary judgment standards as clarified by the Supreme Court in a trilogy of cases in 1986, *fn10" the court sees no need to repeat the same herein. The court emphasizes, however, that the operative facts here are uncontroverted. Thus, rather than engaging in a fact-finding inquiry, these motions call upon the court to decide the legal significance to be accorded the undisputed facts. See Mays v. Mahoney, 91 Civ. 3435, 1993 U.S. Dist. LEXIS 19234, at *7-*8 ("controversy over the legal significance of undisputed facts will not impede summary judgment[]"). By way of example, among other things, this court is faced with the task of interpreting the CBA and the Pension Plan to determine whether defendant Smith's grievance was arbitrable. See International Union, UAW, v. Young Radiator Co., 904 F.2d 9, 10-11 (7th Cir. 1990) (whether CBA required employer to arbitrate dispute with union properly decided on summary judgment motion where only interpretation of CBA involved). Consequently, this action is ripe for summary judgment. See Cadbury Beverages, Inc. v. Cott Corp., 850 F. Supp. 256, 257 (S.D.N.Y. 1994) (summary judgment appropriate where parties disagree only as to legal conclusions to be drawn from the undisputed facts).

 II. Statute of Limitations

 The first potentially significant obstacle to the Company's seeking to vacate the arbitration award is the defendants' statute of limitations argument. Section 301 of the LMRA is the starting point for the court's analysis of this statute of limitations defense. *fn11" Section 301 confers subject matter jurisdiction on this court over actions to vacate an arbitration award. See Burns Intern. Sec. Services v. Intern. Union UPGWA, 47 F.3d 14, 16 (2d Cir. 1994) (citation omitted). As with many federal statutes, *fn12" however, the LMRA is silent as to the appropriate statute of limitations for such an action. Id. (citations omitted). Therefore, "the relevant state statute is borrowed." Id. (citations omitted). The parties vehemently disagree as to what the relevant state statute of limitations is in this case.

 Defendants assert that this court should look to Pennsylvania's statute of limitations governing vacatur of arbitration awards because, in essence, that State has the most contacts with this litigation. In particular, defendants contend that because the arbitration award was rendered in Pennsylvania, by a Pennsylvania arbitrator, and because defendants Smith and the Local are both Pennsylvania residents, Pennsylvania and not New York has the greatest interest in having it law applied. Besides these Pennsylvania contacts, defendants point out that the CBA and Pension Plan were both executed in Pennsylvania by Pennsylvania residents. *fn13" From defendant's perspective, the only New York contacts are that New York is the forum state for this litigation and that the administration of one of the pension plans was transferred to New York after the plan was terminated. Based upon all of these factors, defendants strongly urge the application of Pennsylvania law, which, in most circumstances, requires that an action to vacate an arbitration award be brought "within 30 days after delivery of a copy of the award to the applicant[.]" *fn14" 42 Pa.C.S. § 7314(B) (1994). It is undisputed that the Company did not file this action within that thirty day time frame. Therefore, defendants assert that they are entitled to summary judgment as a matter of law, dismissing as untimely the Company's second and third causes of action, which seek to vacate the contested arbitration award.

 On the other hand, with equal conviction the Company argues that New York law controls the statute of limitations issue because it is the forum state. Countering defendants' suggestion that New York has no interest in having its statute of limitations applied in this case, the Company lists a number of contacts to this State, which, taken together, in its opinion, warrant the opposite conclusion. Specifically, the Company enumerates the following New York contacts: (1) It has its principal place of business in Utica, New York; (2) "all members of the Retirement and Savings Plan Committee [including plaintiffs Moore, Harcourt and Daniels] have their offices at the Company's principal office in Utica[;]" *fn15" (3) "the assets of the trust from which pension benefits are paid under the Terminated Operations Plan are held by Chase Manhattan Bank, the principal office of which is located in New York City[;]" *fn16" and (4) "the Investment Manager of the trust assets is . . . located in New York City." *fn17" For all of these reasons, the Company steadfastly maintains that New York law applies. Accordingly, pursuant to section 7511(a) of the New York Civil Practice Law and Rules ("CPLR"), *fn18" the Company claims that it filed the complaint in this action within ninety days of receiving the arbitration award. In fact, the Company commenced this action eighty-five days after receiving the arbitration award. See Affidavit of Allan Gunn (Aug. 17, 1992) at P 2. What is more, at oral argument defendants conceded that if the court decides that New York law provides the controlling statute of limitations, then there is no dispute that this action to vacate was timely commenced. Tr. at 20.

 As mentioned at the start of this section, the LMRA provides the court with absolutely no guidance as to which statute of limitations to apply in this action. Despite that silence, in accordance with well-settled case law in this Circuit, the court will look to the law of the forum state - New York. See Hollander v. Brezenoff, 787 F.2d 834, 837 (2d Cir. 1986) (citing Cope v. Anderson, 331 U.S. 461, 463, 67 S. Ct. 1340, 1341, 91 L. Ed. 1602 (1947)); Colonial Acquisition Part. v. Colonial At Lynnfield, 697 F. Supp. 714, 716 (S.D.N.Y. 1988) (and cases cited therein); Zola v. Gordon, 685 F. Supp. 354, 363 (S.D.N.Y. 1988) (citing, inter alia, UAW v. Hoosier Cardinal Corp., 383 U.S. 696, 703-704, 86 S. Ct. 1107, 1112-1113, 16 L. Ed. 2d 192 (1966)). *fn19" As just stated, New York requires that an action to vacate an arbitration award be commenced within ninety days after delivery of the arbitration award to the party seeking vacatur; and that was done here. See CPLR § 7511(a). Thus, because the Company timely commenced its action to vacate, defendants' motion for summary judgment on the grounds that the statute of limitations bars the Company's second and third causes of action, based as they are upon vacatur of an arbitration award, must be denied. *fn20"

 Because the court has determined that the Company's action to vacate was timely, it must now turn to the more troublesome issue of arbitrability. As previously mentioned, among other things, the Company is seeking to set aside and vacate the arbitrator's award. Conversely, in their first counterclaim, defendants are seeking confirmation of that same award. Bound up with the Company's argument that the arbitration award should be vacated is the fundamental issue of whether defendant Smith's grievance was arbitrable in the first place; that is, whether the CBA obligated the parties to arbitrate Smith's particular grievance. See New York Typographical Union No. 6 v. Printers League Section of the Association of Graphic Arts, 89 Civ. 4839, 1992 U.S. Dist. LEXIS 4865, at *14-*15, 122 Lab. Cas. (CCH) P 10285 (S.D.N.Y. April 14, 1992).

 In Spector v. Torenberg, 852 F. Supp. 201 (S.D.N.Y. 1994), the court accurately stated, "[a] party moving to vacate an arbitration award has the burden of proof[.]" Id. at 206 (citation omitted). "The showing required to avoid confirmation is very high[.]" Id. (citing Ottley v. Schwartzberg, 819 F.2d 373, 376 (2d Cir. 1987)). "This limited judicial review reflects the desire to 'avoid undermining the twin goals of arbitration, namely settling disputes efficiently and avoiding long and expensive litigation.'" Id. (quoting Folkways Music Publishers, Inc. v. Weiss, 989 F.2d 108, 111 (2d Cir. 1993)). "As the Court of Appeals for the Second Circuit has observed, 'arbitration cannot achieve the savings in time and money for which it is justly renowned if it becomes merely the first step in lengthy litigation.'" Id. (quoting National Bulk Carriers, Inc. v. Princess Management Co., 597 F.2d 819, 825 (2d Cir. 1979)). As the foregoing makes abundantly clear, the Company, as the party seeking to vacate the arbitration award in this case, has a high hurdle to clear.

 There are several oft-repeated precepts which traditionally have guided courts in determining whether a given labor dispute is arbitrable. The first is that "party consent is the cornerstone of arbitration." National Cleaning Contractors v. Local 32- B-32J, 833 F. Supp. 420, 424 (S.D.N.Y. 1993) Accordingly, "'arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he [or she] has not agreed to submit.'" Id. (quoting United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S. Ct. 1347, 1353, 4 L. Ed. 2d 1409 (1960)) (other citation omitted). The second is that it is the court and not the arbitrator which must decide whether a party can be compelled to arbitrate, as well as the issue of whether a given dispute is arbitrable. See Bevona v. 820 Second Ave. Associates, 27 F.3d 37, 39 (2d Cir. 1994) (citing AT & T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 649, 106 S. Ct. 1415, 1418, 89 L. Ed. 2d 648 (1986)). *fn21" In that way a party cannot be forced to "'arbitrate the issue of arbitrability'." Litton Financial Printing v. NLRB, 501 U.S. 190, , 111 S. Ct. 2215, 2226, 115 L. Ed. 2d 177 (1991) (quoting AT & T Technologies, 475 U.S. at 651, 106 S. Ct. at 1419-1420)). Thus, the issue of arbitrability is undeniably one for judicial determination.

 The third precept directs that in considering the arbitrability of a given dispute, the court should not decide the merits of the grievance. *fn22" "Finally, where the collective bargaining agreement contains an arbitration clause, there is a 'presumption of arbitrability.'" Truck Drivers Local 807 v. Regional Import & Export, 944 F.2d 1037, 1043 (2d Cir. 1991) (quoting AT & T Technologies, 475 U.S. at 650, 106 S. Ct. at 1419)). "In other words, "an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage."" Id. (quoting AT & T, 475 U.S. at 650, 106 S. Ct. at 1419) (quoting in turn United Steelworkers, 363 U.S. at 582-83, 80 S. Ct. at 1353). As the Second Circuit has explained, "this 'presumption of arbitrability' flows from the national labor policy favoring arbitration in labor disputes because it promotes labor peace and avoids the more volatile remedies of strikes and lock-outs." Id. (quoting AT & T, 475 U.S. at 650, 106 S. Ct. at 1419) (quoting in turn United Steelworkers, 363 U.S. at 582-83, 80 S. Ct. at 1353). As the Second Circuit has explained, "this 'presumption of arbitrability' flows from the national labor policy favoring arbitration in labor disputes because it promotes labor peace and avoids the more volatile remedies of strikes and lock-outs." Id. (citations omitted). *fn23" Mindful of these general principles, the court will now turn to the issue of whether Smith's pension grievance was arbitrable.

 II. Litton/Nolde Framework

 To place the parties' arbitrability arguments in context, it is first necessary to carefully examine two Supreme Court cases which separately form the basis for the parties' respective positions on this issue. Those case are Nolde and the more recent Litton decision.

 Defendants contend that even though the CBA, and the Pension Plan along with it, terminated in 1984, because the CBA contained a fairly detailed grievance and arbitration procedure, which was incorporated in the Pension Plan, the Company's obligation to arbitrate survived the termination of those Agreements. In support of this position, defendants rely in large part upon the post-expiration presumption of arbitrability recognized by the Supreme Court in Nolde. The union in Nolde terminated the contract and four days later the employer closed the bakery and discharged all the employees. The employer rejected the union's demand for severance pay under the expired agreement and refused to arbitrate the dispute. The Supreme Court compelled arbitration holding that "the parties' obligations under their arbitration clause survived contract termination when the dispute was over an obligation arguably created by the expired agreement." Id. at 252, 97 S. Ct. at 1072. The Supreme Court further held that "in the absence of some contrary indication, there are strong reasons to conclude that the parties did not intend their arbitration duties to terminate automatically with the contract." Id. at 253, 97 S. Ct. at 1073.

 Among the reasons the Court offered for its holding was the parties' clear preference, manifested in the CBA, for arbitral rather than judicial interpretation of their obligations. *fn24" The second reason relied upon by the Nolde Court was the fact that "the parties drafted their broad arbitration clause against a backdrop of well-established labor policy favoring arbitration as the means of resolving disputes over the meaning and effect of collective-bargaining agreements." Id. at 254, 97 S. Ct. at 1073. The Court therefore concluded:

The parties must be deemed to have been conscious of this policy when they agreed to resolve their contractual differences through arbitration. Consequently, the parties' failure to exclude from arbitrability contract disputes arising after termination, far from manifesting an intent to have arbitration obligations cease with the agreement, affords a basis for concluding that they intended to arbitrate all grievances arising out of the contractual relationship. In short, where the dispute is over a ...

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