bargaining agreement between plaintiff and the Metropolitan
Lithographers Association ("MLA"), a multi-employer collective
bargaining group of which defendant was a member, and excluded
overtime pay in the "base pay" calculation. The second agreement,
executed in mid-July 1997, was a Memorandum of Agreement ("the
1997 MOA") executed between plaintiff and defendant after
defendant left the MLA in April 1997. The 1997 MOA stated that
"the terms and conditions of employment set forth in the existing
collective bargaining agreement by and between the union and the
employer shall continue in effect." The third agreement, executed
in 1999 ("Agreement # 3"), was a formal collective bargaining
agreement between plaintiff and defendant for the 1997-2001
period, and included overtime pay in the "base pay" calculation.
Defendant has moved for summary judgment on plaintiff's claim.
According to the Federal Rules of Civil Procedure, summary
judgment shall be granted if "there is no genuine issue as to any
material fact and . . . the moving party is entitled to a
judgment as a matter of law." FED.R.CIV.P. 56(c). A dispute about
a material fact is genuine "if the evidence is such that a
reasonable jury could return a verdict for the non-moving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986).
The moving party has the burden of establishing a prima facie
case demonstrating the lack of a genuine issue of material fact.
Once the moving party meets this burden, the non-moving party has
the burden of providing enough evidence to support a jury verdict
in its favor. Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In
considering a summary judgment motion, all of the facts must be
viewed in the most favorable manner for the non-moving party.
Heilweil v. Mount Sinai Hosp., 32 F.3d 718, 721 (2d Cir. 1994).
In an action involving the construction of a contract, summary
judgment is improper when the contract is ambiguous. Mycak v.
Honeywell, Inc., 953 F.2d 798, 802 (2d Cir. 1992). Language "is
ambiguous when it is `capable of more than one meaning when
viewed objectively by a reasonably intelligent person who has
examined the context of the entire integrated agreement. . . .'"
O'Neil v. Retirement Plan for Salaried Employees of RKO Gen.,
Inc., 37 F.3d 55, 59 (2d Cir. 1994) (quoting Care Travel Co. v.
Pan Am. World Airways, 944 F.2d 983, 988 (2d Cir. 1991)). "Where
contractual language is ambiguous and subject to varying
reasonable interpretations, intent becomes an issue of fact and
summary judgment is inappropriate." Thompson v. Gjivoje,
896 F.2d 716, 721 (2d Cir. 1990) (citing Leberman v. John Blair &
Co., 880 F.2d 1555, 1559 (2d Cir. 1989)).
Plaintiff asserts that the 1997 MOA's reference to the
controlling "existing collective bargaining agreement" referred
to an existing agreement plaintiff used with all independent
employers — employers who were not members of the MLA — which
included overtime pay in the "base pay" calculation. Plaintiff
further asserts that Union President Patrick LoPresti repeatedly
cautioned defendant's owner, Robert Kashan, that defendant would
be required to make contributions on overtime. See LoPresti
Decl. ¶ 10.
Defendant argues that when the MOA stated that "the terms and
conditions of employment set forth in the existing collective
bargaining agreement by and between the union and the employer
shall continue in effect," it was referring to the only existing
collective bargaining agreement in effect between plaintiff and
MLA, the MLA Agreement, which excluded overtime from "base
pay." Defendant points out that Mr. Kashan had previously
negotiated an agreement with Mr. LoPresti for his other
independent shop, Barton Press, which also excluded overtime from
"base pay" calculation. Defendant also alleges that during
negotiations of the 1997 MOA, Mr. LoPresti never asked Mr. Kashan
to enter into an independent agreement. See Kashan Dep. at 38.
Taking into account the circumstances surrounding the signing
of the 1997 MOA, this court finds that the contract's language
regarding the "existing collective bargaining agreement" is
ambiguous. Due to this ambiguity, plaintiff has succeeded in
demonstrating the existence of genuine issues of material fact,
including the following: (1) whether or not Mr. LoPresti and Mr.
Kashan reached an agreement prior to signing the 1997 MOA
concerning the calculation of "base pay," and (2) what the
parties to the 1997 MOA intended by the reference to the
"existing collective bargaining agreement." Accordingly, this
court denies defendant's motion for summary judgment.
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