United States District Court, Southern District of New York
November 19, 2002
GEORGE L. BUENO, AS TRUSTEE OF THE LOCAL 153-GHI PENSION PLAN; AND NEYSA GRIFFITH, AS TRUSTEE OF THE LOCAL 153-GHI PENSION PLAN, PLAINTIFFS,
JAMES F. GILL, AS TRUSTEE OF THE LOCAL 153-GHI PENSION PLAN; E. DONALD SHAPIRO, AS TRUSTEE OF THE LOCAL 153-GHI PENSION PLAN; DONNA LYNNE, AS TRUSTEE OF THE LOCAL 153-GHI PENSION PLAN; AND THOMAS A. NEMETH, AS TRUSTEE OF THE LOCAL 153-GHI PENSION PLAN, DEFENDANTS.
The opinion of the court was delivered by: Denise Cote, District Judge
MEMORANDUM OPINION AND ORDER
The Opinion and Order of September 19, 2002 ("September 19 Opinion")
relied extensively on a provision of the Trust Agreement for the Local
153-GHI Pension Fund that had been deleted from the Trust Agreement by
the Trustees: Article V, Section 2. Given that error, the defendants seek
reconsideration of their motion for summary judgment. Reconsideration is
granted, but the defendants' motion for summary judgment is again
denied. The grant of plaintiffs' motion for summary judgment and requests
for a declaratory judgment and permanent injunction is confirmed.
This action is brought by union-appointed trustees to block the efforts
of the employer-appointed trustees to arbitrate the latter's proposal to
spin-off that part of the trust fund that covers non-union employees. The
September 19 Opinion decided that the issue of arbitrability is for the
Court to decide, and that holding is not challenged by the motion for
Following a detailed discussion of provisions of the Trust Agreement, a
discussion that is not challenged on this motion for reconsideration, the
September 19 Opinion concluded that the spin-off proposal, which
required divestiture of Trust Fund assets, is in "fundamental conflict with
several provisions of the Trust Agreement", and as such, requires
amendment of the Trust Agreement. Relying on the standard set out in
Barrett v. Miller, 276 F.2d 429 (2d Cir. 1960), and Mahoney v. Fisher,
277 F.2d 5 (2d Cir. 1960), the September 19 Opinion concluded that the
spin-off proposal was not arbitrable, since it is "not even arguably
within the Trustees' power" absent amendment of the Trust Agreement. In
dicta, the September 19 Opinion relied additionally (and erroneously) on
the Article V, Section 2 language which denied arbitrators "the power or
authority to change or modify the basic provisions of this Trust
In litigating the underlying motions, the defendants had argued that
the spin-off proposal did not require amendment of the Trust Agreement
and had conceded that "the Trust Agreement cannot be amended through
arbitration."*fn1 Encouraged by the September 19 Opinion's conclusion
that Barrett and Mahoney do not "necessarily forbid arbitration of a
proposal to amend or modify" the Trust Agreement, and the Opinion's
citation to Singleton v. Abramson, 336 F. Supp. 754 (S.D.N.Y. 1971),
amended by No. 70 Civ. 2992 (MEL), 1971 WL 883 (S.D.N.Y. Nov. 11, 1971),
the defendants seek to change their position and request for the first
time that the arbitrator be instructed to either (1) frame the issue as
being whether the Trust Agreement shall be amended to implement the
spin-off, or (2) remand the issue to the Trustees for refinement. It is
too late to introduce entirely new issues into this litigation. A motion
for reconsideration is limited to bringing to the Court's attention
controlling authority or factual matters presented to the Court in the
underlying motion and overlooked. S.D.N.Y. R. 6.3. See also Nat'l Union,
2000 U.S. Dist. LEXIS 2581, at *17-*18.
In any event, the spin-off proposal that prompted this litigation was
not a proposal to amend any of the provisions of the Trust Agreement that
were discussed in the September 19 Opinion. The employer-appointed
trustees explicitly took the legal position that no amendment of the
Trust Agreement was necessary to implement the proposal. The defendants'
attempt to transform the spin-off proposal into a motion to amend the
Trust Agreement cannot be achieved in a motion for reconsideration.
Defendants' motion for reconsideration is granted, but defendants'
motion for summary judgment is again denied. The grant of plaintiffs'
motion for summary judgment and requests for a declaratory judgment and a
permanent injunction is confirmed.