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April 21, 2004.


The opinion of the court was delivered by: WILLIAM CONNER, Senior District Judge


Plaintiff Local Union Number 38, Sheet Metal Workers' International Association, AFL-CIO (the "Union") brings this action against defendant A & M Heating, Air Conditioning, Ventilation & Sheet Metal, Inc. ("A & M Heating"). The Union alleges inter alia that A & M Heating is the alter ego of Hudson Heating, Inc. ("Hudson Heating" or the "company") and is therefore liable for breach of Hudson Heating's Collective Bargaining Agreement (the "CDA"). (Complt. ¶ 11.) The Union moves to compel arbitration and stay this action pursuant to an arbitration clause that appears in Hudson Heating's CBA. In its Supplemental Memorandum of Law filed with the Court in response to a request for further briefing, A & M Heating contended that this action must be dismissed pursuant to FED. R. CIV. PROC. 12(b)(1) for lack of subject matter jurisdiction because A & M Heating is not the alter ego of Hudson Heating. In its Supplemental Reply Memorandum of Law, the Union responded, albeit incompletely and unpersuasively, to A & M Heating's jurisdictional objection.*fn1 For the reasons stated herein, plaintiff's motion is denied, its Complaint is dismissed in its entirety with prejudice and judgment is entered in favor of defendant.


  Unless otherwise noted, the following facts are undisputed. Alex Mancone became a member of the Union in November 1983 when he secured his first union job in the sheet metal trade. (Alex Mancone Decl. ¶ 4.) During his years of employment in the industry, Alex Mancone observed other Union members participate in family businesses in the following manner: someone in the family other than the Union member formed a company, entered into a collective bargaining agreement with the Union and hired the Union member. If that business experienced a slow period, the Union member could obtain employment with other employers through the Union's hiring hall. (Id. ¶ 5.) Sometime prior to January 1996, Alex Mancone began to get only sporadic work referrals from the Union's hiring hall. As a result, Alex and his wife, Lois Mancone, encountered financial difficulties. Although Lois Mancone wanted to obtain employment, she did not have particularly marketable work experience because she had devoted her time to raising the couple's two children who were in high school at the time. (Lois Mancone Decl. ¶ 5.) The Mancones decided that the best solution to their dilemma was to have Lois Mancone form a sheet metal business and devote her time to running it while her husband worked for the company or for other employers that were affiliated with the Union. (Id. ¶¶ 6-7.)

  Hudson Heating was incorporated under the laws of New York on January 25, 1996. (Alex Mancone Decl., Ex. 2.) Lois Mancone owned 100% of the shares of Hudson Heating and was listed with the Department of State as the corporation's agent for service of process. (Id.) Lois Mancone entered into a lease for a shop located at 577 North Main Street in Brewster, New York, and Hudson Heating operated out of the premises. (Lois Mancone Decl. ¶ 8.) She also negotiated with the Union and executed on behalf of Hudson Heating a CBA that became effective July 31, 1998 and expired April 30, 2002. (Id. ¶ 9.) Lois Mancone was the only party authorized to sign checks and approve expenditures for the company. (Alex Mancone Decl. ¶ 24.)*fn2 In his role as the company's working foreman, Alex had no control over Hudson Heating's labor relations and did not participate in any negotiations with the Union; Lois Mancone controlled this area of the business. (Id. ¶ 9; Lois Mancone Decl. ¶ 9.) Similarly, Lois Mancone claims that she generally called the Union to request employees for Hudson Heating. (Id. ¶¶ 9, 13; Alex Mancone Decl. ¶ 9.) Union president Gino Columbo claims that "Lois Mancone never called Local 38 to request workers. Alex Mancone was always the person that requested workers." (Columbo Aff. ¶ 9.) Lois Mancone states that if Columbo is truly under the impression that she never requested workers it is because she always called the Union's business agent Steven Bender to do so. (Lois Mancone Decl. ¶ 13.) Although the Union had the opportunity to address this point in its reply, it did not dispute Lois's statement. The evidence also demonstrates that Lois Mancone hired a worker that was allowed to join the Union after thirty days of employment with Hudson Heating. (Alex Mancone Decl. ¶ 18.)

  Lois Mancone attended all contract negotiations relating to Hudson Heating's jobs, attended job meetings and collected all accounts receivable. (Lois Mancone Decl. ¶¶ 10-11.) When Alex was not present at a particular job, Lois visited the job site to ensure that the helpers had arrived to work and were performing their duties in a satisfactory manner. (Id.) She also delivered materials to job sites from time to time. (Id.) Columbo contends that "Lois Mancone was never present on any of Hudson's job sites." (Columbo Aff. ¶ 10.) However, the Union president could not possibly have such information without constant monitoring of Hudson Heating's job sites. Therefore, we decline to give Columbo's statement any weight. See Prudential Sec. Inc. v. Arain, 930 F. Supp. 151, 155 (S.D.N.Y. 1996) (declining to credit an affidavit on a motion to compel arbitration where the declarant had no competent basis for testifying as to the inner workings of the petitioner's company).*fn3

  The Union contends, and defendant does not deny, that Hudson Heating utilized in its operations the same vans — a blue Ford and a blue Chevrolet — that A & M Heating now employs. (Columbo Aff. ¶ 15.) However, there is no indication as to the ownership of these vehicles or whether they were the only vehicles that were used by the two companies. Columbo also claims that Hudson Heating utilized certain shop equipment leased from Tempaire, Inc. (Columbo Aff. ¶ 20.) Lois Mancone indicates that the metal forming equipment in question was not leased but was acquired by Alex Mancone personally in 1996 and later used by him while working for Hudson Heating. (Lois Mancone Decl. ¶ 18.)

  Sometime in 1998, near one of Hudson Heating's job sites, Alex Mancone and Union business agent Steven Quanto had a heated verbal exchange in which Quanto referred to Alex Mancone as a "piece of shit." (Alex Mancone Decl. ¶ 11.) Subsequent to this altercation, Alex Mancone alleges that the Union deliberately failed to credit benefit payments from Hudson Heating and then ordered a Union member to leave the company's job site, for the stated reason that Hudson Heating was in default. Alex Mancone reported the Union to the Federal Bureau of Investigation ("FBI"), complaining that this conduct amounted to racketeering. (Id. ¶ 14.) After this, defendant contends, and the Union offers no evidence to the contrary, that the Union ruined Hudson Heating by continually refusing to refer workers to it. Because Hudson Heating was bound by the CBA, it could not hire non-union laborers and without workers Hudson Heating could not take on any new jobs. (Id. ¶ 19.) Defendant also claims, and again the Union has offered no evidence to the contrary, that in late 1999 when Alex Mancone contacted Columbo to request work with other Union employers, Columbo informed him that he would see to it that Alex Mancone never again worked for a Union employer. (Id. ¶ 20.) Accordingly, Alex resigned from the Union. (Id. ¶ 21, Exs. 5, 6.)

  In the Union's Reply Memorandum of Law, counsel for the Union declines to address directly the allegations of wrongdoing made by Alex Mancone in his sworn declaration opposing the Union's motion. (Pl. Reply Mem. Supp. Mot. Compel at 1.) Counsel states that the Union does not need to refute this evidence because the statements are untrue and irrelevant and asks the Court to take judicial notice of the alleged fact that no Union official was ever indicted for the behavior Alex Mancone reported. (Id.) Counsel next states, "We invite the Employer to make these allegations in an unprotected public forum." (Id.) Apparently, counsel is under the impression that he can remedy his failure to provide any evidence to refute Alex Mancone's sworn statement merely by implying that they are slanderous. He cannot. See Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, AFL-CIO, 982 F.2d 884, 891 (3d Cir. 1992) (holding that statements in a brief are insufficient to rebut affidavits offered to oppose a motion to compel arbitration). Furthermore, even if it is true that no Union official has been indicted for the Union's alleged wrongdoing in this case, it does not tend to rebut the evidence offered by A & M Heating that Alex Mancone was essentially blacklisted from Union employment because there is no evidence that Alex Mancone ever reported that action to the FBI.

  The Union brought an arbitration proceeding against Hudson Heating alleging that Hudson Heating owed benefits under the CBA and obtained a judgment for $30,496.39 plus $8,262.50 in attorney's fees on July 17, 2000. (Def. Letter Br. 2/23/04, Ex. 1.) On August 11, 2000, Hudson Heating filed a voluntary Chapter 7 bankruptcy petition. (Lois Mancone Decl, Ex. 2.) To date, the Union's judgment appears unsatisfied. (Def. Letter Br. 2/23/04.) Hudson Heating also incurred other substantial debts that were not discharged in the bankruptcy proceeding. (Id.)

  On September 7, 2000, Alex Mancone formed A & M Heating for the purpose of obtaining non-union work; he is the sole shareholder of the corporation. (Alex Mancone Decl. ¶ 23.) Shortly after formation of the company, Alex hired his daughter to perform administrative tasks and entered into a lease for a shop located at 6 Adams Court, in Carmel, New York. (Id.) Lois Mancone is not involved in the management of A & M Heating. (Id.) A & M Heating operates in the same general geographic area that Hudson Heating did business in and, like Hudson Heating, is involved in the heating, air conditioning and ventilation industry. (Columbo Aff. ¶¶ 17-18.) A&M Heating has never worked on any project commenced by Hudson Heating and there is no evidence that A&M Heating serves any of Hudson Heating's customers. (Alex Mancone Decl. ¶ 23.) As discussed supra, in working for A & M Heating, Alex Mancone utilizes some of the metal forming equipment that he acquired in 1996 and used while working for Hudson Heating. A & M Heating also apparently makes use of two vans that were used by Hudson Heating.*fn4 Finally, although A & M Heating's attorney did some work for Hudson Heating, A & M Heating uses different accountants and insurers and has a business banking account with a different bank. (Id. ¶¶ 28-34.)


 I. Subject Matter Jurisdiction

  This case was originally brought before the National Labor Relations Board ("NLRB"), which has primary jurisdiction over questions of substantive federal labor law. See Laborers Tr. Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539, 543 n. 4 (1988). The Union contends that we have jurisdiction because the Union seeks money damages for breach of contract pursuant to § 301 of the Labor Management Relations Act ("LMRA"). See Truck Drivers Local Union No. 807, 1. B. T. v. Reg'l Imp. & Exp. Trucking Co., 944 F.2d 1037, 1044 (2d Cir. 1991) (remanding to the district court for a determination of whether the employer was obligated to arbitrate on an alter ego theory)."For a district court to entertain jurisdiction under section 301, there must be a claim of a violation of a contract between an employer and a labor organization, and the labor dispute must concern an `industry affecting commerce' . . ." 470 Stratford Holding Co. v. Local 32B-32J, Serv. Employees Int'l Union, AFL-CIO, 805 F. Supp. 118, 121 (S.D.N.Y. 1992). The NLRB proceeding was dismissed because A & M Heating had only one employee when the administrative action was commenced. (Carey Decl. ¶ 3, Ex. 2.)*fn5 The Union's administrative appeal was denied. (Id., Ex. 5.) As a preliminary matter, we conclude that the Court has jurisdiction to make the successorship determination required to resolve the present controversy. However, our jurisdiction over this dispute is not as broad as the Union seems to suggest. (Complt. ¶¶ 8-9.) The Supreme Court delineated the contours of this Court's jurisdiction under § 301 of the LMRA in Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 206-07 (1991). There the Court held that an employer could not be compelled to arbitrate a grievance that was filed in response to layoffs occurring after its collective bargaining agreement had expired. Id. at 209. The Court stated that federal courts do not have jurisdiction under § 301 of the LMRA to enforce contractual terms against an employer after the expiration of a collective bargaining agreement if the dispute in question did not arise "under the contract." Id.

A postexpiration grievance can be said to arise under the contract only where it involves facts and occurrences that arose before expiration, where an action taken after expiration infringes a right that accrued or vested under the agreement, or where under normal principles of contract interpretation, the disputed contractual right survives expiration of the remainder of the agreement.
Id. 205-06. Therefore, while an employer may be compelled to arbitrate a grievance that involved a layoff that occurred while the collective bargaining agreement was in effect, the employer cannot be compelled to arbitrate a grievance that was filed in response to a layoff that occurred after the collective bargaining agreement expired. The Court explained,
[A]n expired contract has by its own terms released all its parties from their respective contractual obligations, except obligations already fixed under the contract but as yet unsatisfied. Although after expiration most terms and conditions are not subject to unilateral change, in order to protect the statutory right to bargain, those terms and conditions no longer have force by virtue of the contract.
Id. at 206 (emphasis added). The Court then cited the Second Circuit's decision in Derrico. v. Sheehan Emergency Hosp., 844 F.2d 22, 25-27 (2d Cir. 1988) for the proposition that § 301 "of the LMRA . . . does not provide for federal court jurisdiction where a bargaining agreement has expired, although rights and duties under the expired agreement `retain legal significance because they define the status quo' for purposes of the prohibition on unilateral changes." Litton, 501 U.S. at 206. The only authority for imposing terms upon an employer for disputes that did not arise under the contract is under the National Labor Relations Act ("NLRA"); the NLRB has exclusive jurisdiction to impose terms upon an employer after the collective bargaining agreement has expired under the NLRA. See id. at 207; Laborers Tr. Fund, 484 U.S. at 543 n. 4, 545 (holding that ERISA did not provide jurisdiction for a district court to rule on whether an employer was obligated to pay benefits after the collective bargaining agreement expired and that only the NLRB had such jurisdiction).

  The present action was brought under § 301 of the LMRA. The Complaint includes a claim for money damages for breach of Hudson Heating's CBA which, the Union asserts, applies to A & M Heating because A & M Heating is the alter ego of Hudson Heating. The most troubling allegations in the Complaint concern the Union's claim that the CBA at issue is still in effect and that A & M Heating continues to breach the agreement with each passing day despite the fact that the CBA has expired. (Complt. ¶¶ 8-9.) By including these allegations, the Union appears to be attempting to resuscitate an expired collective bargaining agreement without proceeding through the NLRB. Section 301 does not allow this Court to impose postexpiration obligations upon employers. We can decide only whether a breach occurred prior to the expiration of Hudson Heating's CBA and whether A & M Heating should be held liable for that breach on an alter ego theory. Furthermore, if this Court were to conclude that the matter should be remitted to arbitration, we could compel arbitration only of disputes that arose "under the contract." If A & M Heating's postexpiration conduct establishes that it is the alter ego of Hudson Heating, it can be compelled to arbitrate the damages which should be assessed against it for breach of the CBA by Hudson Heating. It cannot be compelled to arbitrate whether A & M Heating was obligated to abide by the terms of the CBA after it expired or whether it should be required to bargain with the Union.

  The Union intimates that if a company is found to be the alter ego of a company that signed a collective bargaining agreement and then filed under Chapter 7, a district court may enter an order obligating the alter ego entity to abide by the bankrupt company's collective bargaining agreement and award damages for failure to assume the agreement. (Pl. Letter Br. 2/12/04 citing In re Goodman, 873 F.2d 598 (2d Cir. 1988) ("Goodman II") overruled on other grounds by Germain v. Conn. Nat. Bank, 926 F.2d 191, 194 (2d Cir. 1991) and RCR Sportswear, Inc., 312 N. L. R. B. 513 (1993) enforced without opinion by 37 F.3d 1488 (3d Cir. 1994); Complt. ¶¶ 8-9.) The authority the Union cites on this point is inapposite.

  In the NLRB proceeding that spawned Goodman II, the only Second Circuit decision cited by the Union on this point, the NLRB found that an employer was the alter ego of a signatory to a collective bargaining agreement and had violated § 8(a)(5) and § 8(a)(1) of the NLRA by failing to assume the obligations of the collective bargaining agreement. E. G. Sprinkler Corp., 268 N. L. R. B. 1241, 1244 (1984) enforced by Goodman Piping Products, Inc. v. NLRB, 741 F.2d 10 (2d Cir. 1984) ("Goodman I"). The NLRB ordered that the alter ego employer recognize and bargain with the union and "honor and implement all the terms" of the collective bargaining agreement the previous employer had with the union. Goodman II, 873 F.2d at 600. The NLRB also ordered the employer to remit benefit payments to the union and ordered back pay. Id.

  Subsequently, the alter ego employer and Goodman, its sole shareholder, filed Chapter 7 petitions. Id. Goodman then formed a new company named Goodman Automatic Sprinkler Corp. ("GASC"). The NLRB instituted proceedings against Goodman and GASC seeking an order binding them to the 1984 NLRB order and requiring them to honor and implement the terms of the collective bargaining agreement. Id. at 600-01. Goodman and GASC filed a complaint in ...

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