The CBA does not define "bargaining work," however, it clearly
contemplates work outside of installation. See, e.g., Art.
16(D)(2) ("[T]he prefabrication of welded pipe formations, all
lap-joint work and refacing of flanges may be performed at the
site of the job or in the plant of the employer . . ."); Art.
16(H) ("The work to be performed in the shop and in the field
shall include: unloading, handling, and erecting of material,
installation of hangers and supports, making of all bends with a
normal diameter of two inches or less. Cutting and threading of
all pipe two and one-half inches or over in diameter as covered
by this agreement. The attaching of pipe fittings and valves,
whether welded, screwed, or flanged."). Notably, the CBA does
not reference or distinguish between residential, commercial,
construction, light commercial, or prevailing rate work. Thus,
although the contours of bargaining work are unclear, the CBA
clearly and unambiguously covers more than installation and
encompasses residential and commercial projects.
The partial ambiguity, however, does not bar summary judgment.
See Chock Full O'Nuts Corp. v. Tetley, Inc., 152 F.3d 202, 204
(2d Cir. 1998). Summary judgment is appropriate if the moving
party would prevail under any reasonable interpretation of the
contract. See id. Ambiguity itself is insufficient to create a
genuine issue of material fact and summary judgment is
appropriate if the ambiguity coupled with the extrinsic evidence
does not create a genuine issue of material of fact. See
Shepley, 174 F.3d at 72 n. 5. Both the contractual ambiguity
and the extrinsic evidence, however, must be construed in the
manner most favorable to the non-moving party. See Seiden
Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir.
The extrinsic evidence in this case indicates that the parties
intended bargaining work to cover all plumbing work. Howard, the
Union's Business manager, states that the CBA covers "[a]ll
plumbing, pipefitting, and sprinkler work . . . regardless of
the size, nature, or character of the project." Howard Aff. ¶ 9.
Philip Mauro, on the other hand, testifies that Mauro's believed
that the CBA did not cover residential, repair or service work.
P. Mauro Aff. ¶ 29. Mauro's practice, however, belies this
interpretation. Tkach, the employee who filled out Mauro's
remittance forms, testified that once an employee belonged to
the Union she reported "any jobs he worked on" to the Union.
Tkach Dep. at p. 70. Thus, instead of reporting only hours
worked on installation in commercial projects, Mauro's reported
hours for all commercial and residential work performed by Union
employees. Id. at 72. Accordingly, the business practice of
Mauro's indicates that they distinguished between Union and
non-Union workers rather than Union and non-Union work. Combined
with the language in the CBA which does not distinguish between
residential and commercial work and clearly indicates that
"bargaining work" is not limited to installation projects or the
limited section of service work defined by Defendants, a
rational finder of fact could not conclude that the CBA limits
the definition of bargaining work to commercial installation
projects. Neither the contractual ambiguity nor the extrinsic
evidence give rise to a genuine issue of material fact
precluding summary judgment. Accordingly, the Court finds that
the CBA covers all plumbing, pipefitting, and sprinkler work
regardless of the size of the project. Defendants are therefore
responsible for contributions for all plumbing, heating,
cooling, pipefitting and sprinkler work on all residential and
A. Contributions and Deductions
Plaintiffs seek to recover $250,657.38 in delinquent fringe
benefit contributions, deductions, interest and liquidated
damages for the period of May 3, 1996 through
March 31, 1998. This sum consists of $154,716.19 in fringe
benefit contributions and deductions,*fn9 $49,089.74 in
interest and $46,851.45 in liquidated damages. An auditor
calculated these sums after reviewing Defendants' payroll
records. See McCarthy Aff.
Defendants dispute the calculations insofar as the auditor
included contributions for work and employees they believe the
CBA does not cover. As discussed above, however, the Court finds
that a rational finder of fact must conclude that Plaintiffs
correctly interpreted the CBA to include all employees and all
plumbing work. Defendants did not raise any further objections
with respect to the auditor's report. Accordingly, Plaintiffs
are awarded $250,657.38 in damages for the period of May 3, 1996
to March 31, 1998. Plaintiffs are also entitled to recover
delinquent contributions, deductions, interest, and liquidated
damages for the period of April 1, 1998 to May 1, 1999.*fn10
The amount owed should be determined by an auditor in accordance
with the terms of the CBA.
B. Attorneys' Fees
In accordance with the CBA, the Restated Agreements and
Declarations of Trust, the Collections Policy and ERISA,
29 U.S.C. § 1132(g)(2), Defendants are liable for the reasonable
attorneys' fees and costs incurred in collecting delinquent
contributions and deductions.
Plaintiffs seek $34,979.76 in attorneys' fees and costs,
paralegal fees, and auditing fees. In support of this
application, Plaintiffs' attorneys submitted contemporaneous
time records of work performed as required by the Second
Circuit. See, e.g., Lewis v. Coughlin, 801 F.2d 570, 577 (2d
Cir. 1986); New York State Ass'n for Retarded Children, Inc. v.
Carey, 711 F.2d 1136, 1148 (2d Cir. 1983). The records
submitted specified "for each attorney, the date, the hours
expended, and the nature of the work done." Carey, 711 F.2d at
1148. The Court independently reviewed these records and
determined that the fee request is reasonable given the length
and complexity of the litigation.
The Court will, however, reduce the requested fee to reflect
the accepted hourly rates in the Northern District of New York.
As this Court recently discussed in TM Park Ave. Assocs. v.
Pataki, 44 F. Supp.2d 158, 167 (1999), the applicable hourly
rate depends on an attorney's professional experience. Thus, as
a general rule, attorneys with significant experience and
numerous years of practice are entitled to reimbursement at the
hourly rate of $175.00; attorneys with four or more years of
experience at the hourly rate of $125.00; and newly-admitted
attorneys at the rate of $100.00 per hour. See TM Park Ave.
Assocs., 44 F. Supp.2d at 167; Carroll v. DeBuono,
48 F. Supp.2d 191, 193-95 (N.D.N.Y. 1999). TM Park awarded
paralegal time at $50.00 per hour, in part because the parties
provided no evidence to substantiate a higher rate. 44 F. Supp.2d
at 167. Although this Court subsequently raised the paralegal
rate to $65.00 per hour, see Sheet Metal Div. of Capitol Dist.
Sheet Metal, Roofing & Air Conditioning Contractors Assoc., Inc.
v. Local Union 38 of the Sheet Metal Workers Int'l Assoc.,
63 F. Supp.2d 211, 214 (N.D.N.Y. 1999), the rate change took effect
after Plaintiffs performed the work for which they seek
reimbursement. Plaintiffs offered no documentation to support
application of a higher rate. Accordingly, the Court will apply
the rate submitted, which in all cases is less than $175.00, for
the work of Attorney Clark; $125.00 an hour for the work of
Attorney Goldman; and $50.00 an hour for the work of paralegals.
The Court awards $26,907.30 in
attorneys' fees,*fn11 $1,837.90 in costs and disbursements,
and $1,666.01 in auditing costs. See Clark Aff. ¶¶ 58-62, Ex.
GG; McCarthy Aff. ¶ 21.
Plaintiffs seek a permanent injunction directing Defendants to
comply with the terms of the CBA, pay all additional moneys
owed, and prohibiting Defendants from incurring further
delinquencies. To obtain a permanent injunction, Plaintiffs must
demonstrate irreparable harm and the absence of an adequate
remedies at law. See Ticor Title Ins. Co. v. Cohen,
173 F.3d 63, 68 (2d Cir. 1999) (citing New York State Nat'l Org. for
Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989)).
Plaintiffs' memorandum of law did not address their request for
a permanent injunction. Accordingly, Plaintiffs have not
demonstrated either irreparable harm or the absence of an
adequate remedy at law and, thus, the Court declines to enter a
Plaintiffs' motion for summary judgment is GRANTED. Defendants
are ORDERED to pay $154,716.19 in delinquent contributions and
deductions; $49,089.74 in interest; and $46,851.45 in liquidated
damages for the period of May 3, 1996 to March 31, 1998. It is
further ORDERED that Defendants pay $26,907.30 in attorneys'
fees and costs. It is further ORDERED that Defendants pay an
amount to be determined after a payroll audit for delinquent
contributions, deductions, interest, and liquidated damages
outstanding for the period of April 1, 1998 to May 1, 1999. The
Court DENIES Plaintiffs' request for a permanent injunction.
IT IS SO ORDERED.