The opinion of the court was delivered by: Sifton, Senior Judge.
Plaintiffs the New York Employees Pension Fund and the New York Welfare Fund of Division 1181 Amalgamated Transit Union (the "Funds") and their Trustees: Tommy Mullins, Stanley Brettschneider, Neil Strahl, Domenic Gatto, and Andrew Brettschneider commenced this action against defendants Minibus Service, Inc. ("Minibus") and Gotham Transportation, Inc. ("Gotham"). Plaintiffs allege that defendants violated Section 515 of ERISA, 29 U.S.C. § 1145 by failing to contribute to the Funds. The Funds seek an injunction pursuant to ERISA § 502(a), 29 U.S.C. § 1132(a), requiring defendants to make timely contributions, pay all amounts owed to the Funds as determined by the 2002-2004 and 2004-2007 audits, pay contributions owed to the Funds for the months of May and June of 2008, and pay interest on all contributions owed or liquidated damages of twenty percent of the delinquent contributions in the event that figure exceeds interest owed, together with any additional amounts that may become due to the Funds during the pendency of this action, and reasonable attorneys' fees and costs and disbursements. Now before the Court is defendants' motion to dismiss the complaint and compel arbitration.*fn1 For the reasons set forth below, the motion is denied.
The following facts are taken from the complaint and the parties' submissions in connection with this motion. Disputes are noted.
Plaintiffs are multi-employer employee benefit plans within the meaning of Sections 3(3) and 3(37) of ERISA, 29 U.S.C. §§ 1002(3) and 1002(37). The Funds are separate and distinct entities from Local 1181 and from the Trustees of the Funds. The Trustees are fiduciaries of the Funds within the meaning of Secion 3(21) of ERISA, 29 U.S.C. §§ 1002(21). The Funds are administered at 101-49 Woodhaven Boulevard, Ozone Park, New York 11416.
Defendants Minibus and Gotham are employers within the meaning of 29 U.S.C. § 152(2) of ERISA and Section 3(5) of ERISA, 29 U.S.C. § 1002(5), and are engaged in commerce in an industry affecting commerce, within the meaning of Sections 3(11) and (12) of ERISA, 20 U.S.C. §§ 1002(11) and (12). Both Minibus and Gotham employ employees represented for the purposes of collective bargaining by the Amalgamated Transit Union Local 1181-1061, AFLCIO (the "Union"), a labor organization representing employees in an industry affecting interstate commerce.
The defendants are related entities, both incorporated under the laws of New York State, and have their principal place of business at 2847 West 21st St., Brooklyn, New York 11224. Both are contractors with the New York City Department of Education (the "Department of Education").
Since 2002, the defendants have been parties to a collective bargaining agreement ("CBA") with Local 1181, Sabatelli Aff. at 3, to which the Funds are not parties. D'Ulisse Dec. ¶ 5, Ex. A, p. 1. The CBA contains a grievance and arbitration provision entitled "Grievances and Impartial Arbitrator." This provision refers only to "the Employer" and "the Union," and does not mention the Funds. D'Ulisse Dec. ¶ 6, Ex. A, Section 4, p. 6.
In the CBA, the parties to the CBA agreed to be bound by the terms of the Funds' Agreements of Trust. D'Ulisse Dec. ¶ 7, Ex. A, Section 11(h), p. 20 and Section 14(j), p. 29. There are two Agreements of Trust: the Restated Agreement and Declaration of Trust of the pension fund of the Division 1181 A.T.U. and the Restated Agreement and Declaration of Trust of the welfare fund of the Division 1181 A.T.U. (collectively, the "Trust Agreements"). D'Ulisse Decl. Ex. B, C. The CBA incorporates a Policy for Collection of Delinquent Contributions, which governs contributions pertaining to both Funds (the "Joint Policy"). D'Ulisse Decl. Ex. D. The Joint Policy is signed by all parties.
Under the terms of both Trust Agreements, the Trustees are empowered to choose the appropriate means to enforce the employers' contribution obligations. Both Trust Agreements contain the following language:*fn2
Section 3: In operating and administering the Fund, the powers and/or duties of the Board of Trustees, or its designee shall include, but not be limited to, the following:
(f) To receive and collect all Contributions and other amounts due to and payable to the Fund. In doing so, the Board of Trustees, in its sole discretion, shall have the right to maintain any and all actions and legal proceedings necessary for the collection of the Contributions or payments provided for and required and the right to prosecute, defend, compromise, settle, abandon, or adjust, by ...