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LOCAL 46 METALLIC LATHERS UNION v. V.V.W. REBAR CORP.

September 29, 2005.

LOCAL 46 METALLIC LATHERS UNION AND REINFORCEMENT IRONWORKERS OF NEW YORK CITY AND VICINITY, Plaintiff,
v.
V.V.W. REBAR CORP., Defendant.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT AND RECOMMENDATION

TO THE HONORABLE ROBERT L. CARTER, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Plaintiff, Local 46 Metallic Lathers Union and Reinforcing Ironworkers of New York City and Vicinity ("Local 46") brought this action against V.V.W. Rebar Corporation ("VVW") pursuant to section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, to compel compliance with the parties' collective bargaining agreement ("Agreement") and the decision of an arbitration panel convened, pursuant to dispute resolution provisions in the Agreement, to hear and determine disputes arising out of the Agreement.

  Upon VVW's failure to file an answer or otherwise respond to the Complaint, Local 46 requested that a default judgment be entered against VVW and that the plaintiff have judgment against the defendant in the amount of $273,328.12, together with interest, attorney's fees and costs. Thereafter, your Honor referred the matter to the undersigned to conduct an inquest and to report and recommend the amount of damages, if any to be awarded against VVW. The Court directed Local 46 to serve and file proposed findings of fact and conclusions of law, and an inquest memorandum setting forth its proof of damages, costs of this action, and its attorney's fees. The Court also directed VVW to serve and file any opposing memoranda, affidavits and exhibits, as well as any alternative findings of fact and conclusions of law it deemed appropriate. VVW did not file any papers in opposition to Local 46's submissions.

  Local 46's submissions aver that it is entitled to $273,328.12, together with interest, attorney's fees in the amount of $2,400.00, and costs in the amount of $225.00. For the reasons that follow, I recommend that Local 46 be awarded $273,328.12, post-judgment interest, and costs in the amount of $225.00.

  II. BACKGROUND

  When a defendant defaults in an action, by failing to plead or otherwise defend against a complaint, the defendant is deemed to have admitted every well-pleaded allegation of the complaint except those relating to damages. See Cotton v. Slone, 4 F.3d 176, 181 (2d Cir. 1993); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). In addition, the plaintiff is entitled to all reasonable inferences from the evidence presented. See Au Bon Pain Corp. v. Artect, Inc., et al., 653 F.2d 61, 65 (2d Cir. 1981). Based upon the submissions made by the plaintiff, the complaint filed in the instant action, and the Court's review of the entire court file in this action, the following findings of fact are made:

  Local 46 is a labor organization within the meaning of section 2(5) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 152(5). See Complaint, ¶ 4. VVW is a corporation and an employer within the meaning of the NRLA, 29 U.S.C. § 152(2). Id., ¶ 5. Local 46 represents certain employees of VVW for collective bargaining purposes. Id., ¶ 4. Local 46 and VVW executed and placed into effect a collective bargaining agreement covering the period July 1, 2002, through June 30, 2005. The Agreement governed wages, hours, and working conditions of the VVW employees. See Affidavit of Richard Markowitz In Support Default Judgment ("Markowitz Aff."), Exhibit A. The Agreement contains provisions for resolving all disputes between the parties arising out of the employment and collective bargaining relationship. Id. Pursuant to Article X of the Agreement, a Trade Board of the Cement League is charged with hearing all complaints involving the general enforcement of the Agreement between the Local 46 and VVW. Id.

  On June 19, 2003, the Local 46's Business Manager/Financial Secretary, Robert A. Ledwith ("Ledwith"), notified the Cement League of Local 46's desire to convene a Trade Board hearing based on allegations of multiple violations of the Agreement that were occurring at VVW's Track 9A job site, which is located at JFK Airport. See Plaintiff's Memorandum of Law in Support of Inquest ("Pl.'s Mem."), at 4. As a result of Local 46's allegations, a Trade Board hearing was held on June 30, 2003. Id.

  During the Trade Board hearing, Ledwith presented the following evidence: (a) Local 46's letter notifying VVW of eight contract violations; (b) a list of architects, engineers and various contractors working at the job site; (c) documentation of the hourly and daily wages of Local 46's members, during the relevant time period; (d) VVW's weekly contributions to Local 46; (e) a list of persons employed at the job site who were not Local 46 members; and (f) various drawings of the pertinent construction project. See Complaint, Exhibit A, Minutes of Trade Board Meeting. Based on the drawings, two contractors estimated that the amount of steel used at the job site would require that work be performed between 646 and 693 "man-days." Id. As a result of VVW's contract violations, Local 46 estimated that its members suffered a minimum of $273,328.12 in lost wages and fringe benefits, based on an estimated 646 man-days of work. However, VVW reported only three man-days of work to Local 46. Id. At the conclusion of the hearing, the Trade Board found by a unanimous vote, that VVW owed Local 46 $273,328.12. Id. Under the terms of the Agreement, the decision of the Trade Board was final and binding on the parties. See Pl.'s Mem. at 5. VVW did not attend the Trade Board hearing or seek to vacate or otherwise challenge judicially the decision of the Trade Board. See id. VVW has failed to comply with the Trade Board decision. See id. Local 46 filed this action to compel compliance with the Agreement and the decision of the Trade Board.

  III. CONCLUSIONS OF LAW

  Review of Arbitration Awards

  The Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq., permits federal courts to confirm arbitration awards. In pertinent part FAA provides the following:
If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected. . . . If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made. ...

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