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LABARBERA v. C. VOLANTE CORP.

September 26, 2001

GARY LABARBERA, LARRY KUDLA, DENNIS GARTLAND, ROBERT HAESEKER, CHESTER BROMAN, JOSSEPH FERRARA, FRANK FINKEL AND THEODORE KING, AS TRUSTEES AND FIDUCIARIES OF THE LOCAL 282 WELFARE, PENSION, ANNUITY, JOB TRAINING, AND VACATION AND SICK LEAVE TRUST FUNDS, PLAINTIFFS,
V.
C. VOLANTE CORP., C. VOLANTE TRUCKING CORP., AND VITAL TRUCKING CORP., DEFENDANTS.



The opinion of the court was delivered by: Gershon, District Judge.

  ORDER

A. Facts:

All material facts are undisputed.

Plaintiffs are the trustees of the Local 282 Welfare, Pension Annuity and Job Training Trust Funds ("Funds"), which were established pursuant to collective bargaining agreements ("CBAs") between Building Material Local Union 282 of the International Brotherhood of Teamsters ("Union") and employers who utilize Union labor.

The obligations of employers are set forth in the "Agreement and Declaration of Trust" ("Trust Agreement"). The Trust Agreement defines an "employer" in relevant part as "each employer who has duly executed a collective bargaining agreement with the Union." Trust Agreement at I, § 1. Pursuant to the Trust Agreement, employers are required to make certain contributions to the Funds based upon the amount of Union labor they use.

Defendant Volante was a signatory to a CBA with the Union that was in effect between July 1, 1987 and June 30, 1990, but the company has not been a signatory to the CBAs that have been in effect since July 1, 1990. In Brown v. C. Volante Corp., 1997 WL 441799 (E.D.N.Y. 1997), affirmed 194 F.3d 351 (2d Cir. 1999), this court granted Trustee plaintiffs' motion for summary judgment and held that Volante was liable to the Trustees for delinquent pension fund contributions because Volante had adopted the CBAs through a course of conduct for the period from May 30, 1990 to September 30, 1993. As in the 1990 to 1993 period, Volante continued to submit monthly fund contributions and dues checkoffs and remittance reports throughout the 1993 to 1997 period. These reports were on forms which state that the report is submitted in accordance with the CBA. Volante also continued to maintain a surety bond, permit audits, and use only drivers who are members of the Union or have sought to become members.

Trucking was formed in 1993. Rita Volante was the sole owner, director, and officer of both Volante and Trucking. However, Rita's son, Carmine Volante, has been managing, supervising, and operating Volante and Trucking since 1995. Rita was responsible for labor relations and prepared the payroll for both companies until 1995; then Carmine took over these functions. The working conditions of both companies were the same. Volante and Trucking used the same insurance broker. Both Volante and Trucking ceased operations in June 1997.

Vital was formed shortly thereafter, in July 1997, during the pendency of the cross-motions for summary judgment in Brown. Vital was formed because the defendants believed they needed a CBA in order to obtain Union jobs. Thus, Vital has been a signatory to a series of CBAs from July 1, 1997 through June 30, 2002. Volante, Trucking, and Vital have had the same employees, customers, accountants, attorneys, business purpose of moving construction materials, equipment, assets, property, and principal place of business. All the bills to the principal place of business are addressed to Volante and paid with checks from Vital. This principal place of business has had one telephone number for all three companies and one sign, which reads "C. Volante." The signs on the common trucks read "C. Volante Trucking."

Sherry Volante, Rita's daughter-in-law and Carmine's sister-in-law, is the sole owner, director, and officer of Vital. She has management authority, although Carmine and Thomas, who is Sherry's husband and Carmine's brother, assist in the operations. Sherry has no experience in the trucking business, but Carmine and Thomas have 60 years of experience between them. Third parties have dealt with any family member when conducting business with any of the three companies. In March 1998, plaintiffs performed a payroll audit of Trucking for the period from March 1, 1991 to September 28, 1997.

B. Analysis:

Volante is liable for the delinquent trust fund contributions for the period of October 1, 1993 to June 30, 1997. Defendant Vital raises three arguments in support of its claim that Volante is not liable for the delinquent contributions, all of which have been addressed already in Brown. 1997 WL 441799 *2, affirmed 194 F.3d at 353-54. They argue that this court lacks subject matter jurisdiction because the National Labor Relations Board ("NLRB") has exclusive jurisdiction and that Volante is not liable because it did not sign the CBAs and because plaintiffs failed to comply with the CBAs. For the reasons stated in Brown, all three arguments lack merit. Further, as in the period addressed in Brown, Volante indicated its intent to be bound by the CBAs between October 1, 1993 and June 30, 1997. Volante continued to submit monthly fund contributions and dues checkoffs, to provide remittance reports, to maintain a surety bond, to permit audits, and to used only drivers who are members of the Union or have sought to become Union members. See Brown, 1997 WL 441799 *3, affirmed 194 F.3d at 353-56.

Trucking and Vital are also liable for the delinquent trust funds because they assumed Volante's liability. As noted above, Trucking is already the subject of a default judgment in this case. Trucking is liable for Volante's obligations under a single employer theory. A company that is not a party to a CBA is liable for the obligations of a company that is a party to the CBA if the two companies are a single employer. Further, the non-party company is bound by the terms of the CBA if the non-party and party companies are a single employer and represent an appropriate bargaining unit. See Lihli Fashions Corp., Inc. v. NLRB, 80 F.3d 743, 747-48 (2d Cir. 1996).

Two companies are a single employer if there is an "absence of an arm's length relationship found among unintegrated companies." Id. The Supreme Court has identified four factors to determine whether two companies are a single employer: interrelation of operations, common management, centralized control of labor relations and common ownership. See Radio & Television Broadcast Technicians Local Union 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256, 85 S.Ct. 876, 13 L.Ed.2d 789 (1965) (per curiam). The Court of Appeals for the Second Circuit has indicated that the use of common ...


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