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Tishman Construction Corp. of New York v. Muccioli

February 15, 2008

TISHMAN CONSTRUCTION CORPORATION OF NEW YORK, PLAINTIFF,
v.
ANTHONY MUCCIOLI IN HIS OFFICIAL CAPACITY AS PRESIDENT OF PLUMBERS, STEAMFITTERS & APPRENTICES LOCAL UNION 21 AND PLUMBERS, STEAMFITTERS & APPRENTICES LOCAL UNION 21, DEFENDANTS.



The opinion of the court was delivered by: John G. Koeltl, District Judge

OPINION AND ORDER

The plaintiff, Tishman Construction Corporation of New York ("Tishman") brings this action against the defendants, Plumbers, Steamfitters & Apprentices Local Union 21 ("Local 21"), and its President, Anthony Muccioli, to enjoin the defendants' effort to proceed to arbitration against Tishman. The action was originally filed in the New York State Supreme Court, New York County. The defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1331 and 1441 because the dispute arises under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185. Local 21 seeks to compel arbitration to settle a dispute involving whether it or the International Union of Operating Engineers, Local 137 ("Local 137") is entitled to perform the standby operation of permanent heating and cooling equipment at Yonkers Raceway. Tishman, the construction manager for work on the Yonkers Raceway, claims that the dispute is jurisdictional and is not subject to arbitration under the terms of the Project Labor Agreement (the "PLA"). Tishman seeks (1) a declaration that the alleged jurisdictional dispute is not arbitrable before the American Arbitration Association ("AAA"); (2) a permanent injunction restraining such arbitration; and (3) the dismissal of Local 21's counterclaim that sought to compel arbitration of the dispute before the AAA. The arbitration has commenced but is voluntarily stayed pending the outcome of this action. Tishman has moved for summary judgment and Local 21 has cross moved for summary judgment on its counterclaim.

I.

A.

The following facts are not in dispute. Tishman and the Building and Construction Trades Council of Westchester and Putnam Counties (the "BCTC") and its Local Union affiliates are parties to a PLA dated August 24, 2005 covering construction work performed at Yonkers Raceway located in Yonkers, New York. (See Declaration of Aaron C. Schlesinger, dated July 26, 2007 ("Schlesinger Decl."), Ex. E.) As a union affiliate of the BCTC, Local 21 is party to the PLA. Paragraph 16 of the PLA specifies that the parties will attempt to submit general disputes under the agreement to an agreed upon neutral arbitrator, and in the event that parties cannot agree, to an arbitrator on a list provided by the American Arbitration Association ("AAA"). (Schlesinger Decl., Ex. E at ¶16.) Paragraph 17 of the PLA specifically excludes jurisdictional disputes from the specified Dispute Resolution Procedure, including the arbitration procedures, and provides that jurisdictional disputes shall instead be governed by the Plan for the Settlement of Jurisdictional Disputes, referred by the union asserting a jurisdictional claim to the Building and Construction Trades Department, AFL-CIO, in Washington D.C. (the "BCTD"). (Schlesinger Decl., Ex E at ¶17.)

Local 21 filed a Notice of Intention to Arbitrate with the AAA pursuant to a letter dated January 11, 2007, citing Tishman's "failure to assign standby operation of permanent heating and cooling equipment at Yonkers Raceway to members of Local 21, in violation of the Project Labor Agreement. (Schlesinger Decl., Ex. F; Notice of Intention to Arbitrate attached to Petition as Ex. B.) Local 21 has identified ¶24 of the PLA as the pertinent section of the agreement that was allegedly violated by Tishman's action. (Schlesinger Decl., Ex E at ¶24.)*fn1 The parties subsequently agreed to stay the arbitration before the AAA pending the outcome of the current action. (See Schlesinger Decl. ¶21.) All of the work performed on the Project at issue was completed by the end of February, 2007. (Schlesinger Decl. ¶26.)

The central dispute between the parties concerns whether this is a jurisdictional or a contractual dispute. Tishman argues that the underlying dispute is indisputably a jurisdictional issue and thus, pursuant to the clear terms of the PLA, Tishman is not obligated to arbitrate before the AAA. Local 21 argues that the dispute is not a jurisdictional dispute covered by the dispute resolution procedure specified in ¶17 of the PLA, but involves violation of specific contractual language in ¶24 of the PLA which assigns the specific work of standby operation of permanent heating and cooling equipment at Yonkers Raceway to Local 21. As a contractual dispute, Local 21 argues that it is covered by the arbitration clause contained in ¶16 of the PLA, which applies to "any dispute or disagreement relating to the application or interpretation of any provisions of this Agreement." Local 21 asserts that, in any event, the meaning of jurisdictional dispute under the contract is itself contested, and that the arbitrator is the proper body to determine whether the dispute is a jurisdictional dispute, not the Court.

B.

The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). "The trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). With respect to the issues on which summary judgment is sought, if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir.1994).

II.

A.

Arbitration is a subject of agreement among the parties and the issue of whether the parties agreed to submit a dispute to arbitration is a matter for the Court to decide, unless the parties clearly and unmistakably demonstrate otherwise. See AT&T Technologies, Inc. v. Communication Workers of America, 475 U.S. 643, 649 (1986). Courts have also found that if the parties agreed that jurisdictional disputes are not to be submitted to arbitration, the courts will honor that agreement. See Bechtel Corp. v. Local 215, Laborers' Int'l Union of North America, AFLCIO, 544 F.2d 1207, 1214 (3d Cir. 1976) ("Just as it is the duty of the courts to enforce an agreement of labor and management to arbitrate certain disputes, the same policy considerations require that courts also respect an agreement between management and unions to submit jurisdictional disputes to the specific settlement agency designated by them for that purpose.") A jurisdictional dispute is commonly defined as a dispute "between two or more groups of employees over ...


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