The opinion of the court was delivered by: Kiyo A. Matsumoto, United States District Judge
Petitioner, The Tile Setters and Tile Finishers Union of New York and New Jersey, Local Union No. 7 of the International Union of Bricklayers and Allied Craftworkers ("Local 7" or the "Union"), commenced this action against respondent Speedwell Design/BFK Enterprise, LLC ("Speedwell") to compel Speedwell to appear and participate in arbitration before the Tile Industry Joint Arbitration Board regarding Speedwell's alleged violations of a collective bargaining agreement ("CBA") between the parties. The parties filed cross-motions for summary judgment on March 14, 2008. As discussed in detail below, the court finds that Speedwell is not bound by the CBA under which Local 7 seeks to compel arbitration, entitled "Agreement between The Greater New York and New Jersey Tile Contractors Association, Inc. and The Building Contractors Association of Atlantic County, Inc. and The Tile Setters and Tile Finishers Union of New York and New Jersey, Local Union No. 7 of the International Union of Bricklayers and Allied Craftworkers," dated June 2, 2003 ("2003 Association CBA").*fn1 The court therefore denies Local 7's motion for summary judgment to compel arbitration under the 2003 Association CBA, grants Speedwell's motion for summary judgment, and dismisses the petition.*fn2
The following facts are undisputed. Petitioner Local 7 is a labor organization as defined under Section 301 of the Labor Management Relations Act of 1947, as amended, 29 U.S.C. § 185. (Doc. No. 17, Petitioner's Rule 56.1 Statement in Support of Local 7's Motion for Summary Judgment to Compel Arbitration ("Local 7 56.1 Stmt.") ¶ 1.) Local 7 came into existence in November 1993 through the merger of the following unions: the Tile Setters - Local 52; the Tile Finishers in southern New Jersey - Local 77; the Tile Finishers in the Metropolitan New York area - Local 88; the Marble Finishers - Local 20; the Marble Setters - Local 4; and the Terrazzo Workers - Local 3 and Local 65. (Local 7 56.1 Stmt. ¶ 5.) Respondent Speedwell is a subcontractor that performs, inter alia, tiling work on larger construction projects and has its principal offices in Morristown, New Jersey. (See Local 7 52.1 Stmt. ¶¶ 2,*fn3 14, 18; Speedwell Design 56.1 Counter Statement ("Speedwell 56.1 Reply") ¶ 2.)
B. Related Litigation between the Parties
Local 7 and Speedwell are parties in a separate but related lawsuit also pending before this court, Del Turco v. Speedwell Designs, 02-CV-5369 (KAM).*fn4 The claims in the Del Turco matter involve claims and cross-claims between Local 7, various union benefit funds, and Speedwell that are not relevant to the present matter. However, the Del Turco matter has obligated this court to examine the validity of certain CBAs between Local 7 and Speedwell, one of which is relevant here.
In Del Turco, Local 7 sought summary judgment on a claim that Speedwell failed to pay union dues under a 1997 agreement entitled "AGREEMENT Between Tile Layers Subordinate Union of New York & New Jersey of the International Union of Bricklayers and Allied Crafts and Employer."*fn5 See Del Turco, 02-CV-5369, Memorandum and Order of March 31, 2009, § IV.A. On February 20, 2001, while Speedwell was performing work on a job known as the "Waterview Project" in Parsippany, New Jersey, Speedwell's President, Barry Kolsky, on behalf of Speedwell, signed a copy of a preprinted CBA entitled "AGREEMENT Between Tile Layers Subordinate Union of New York & New Jersey of the International Union of Bricklayers and Allied Crafts and Employer" with the dates "From May 5, 1997 to May 4, 2000" preprinted on its cover. (Local 7 56.1 Stmt. §§ 10-12.) The preprinted 1997 Local 52 CBA was modified by hand as follows: the name "Speedwell Design" was handwritten at the top of the front cover of the booklet; the number "1" was handwritten over the last digit in the phrase "from May 5, 1997 to May 4, 2000," modifying the final date to May 4, 2001; and the words "May 2000 to May 2003" were handwritten at the top of the last page of the booklet and initialed by Kolsky with the letters "BK." These modifications resulted in the "2001 Local 52 CBA." (Local 7 Mot., Ex. 2; Local 7 56.1 Stmt. § 12; Doc. No. 28, Speedwell 56.1 Reply ¶ 12.)
Speedwell contends, in both the Del Turco matter and this case, that Kolsky believed that he was signing a project labor agreement for the Waterview Project only, and not a CBA. However, in Del Turco, this court rejects Speedwell's position, and finds that the 2001 Local 52 CBA was a valid CBA binding Local 52 and Speedwell to a contract between May 2000 and May 2003. See Del Turco, 02-CV-5369, Memorandum and Order of March 31, 2009, § III.A.
Local 7 moved for summary judgment in the Del Turco matter pursuant to the 2001 Local 52 CBA (and a separate CBA not relevant here), seeking unpaid dues for the period from February 20, 2001 to May 31, 2003, corresponding to the effective dates of the 2001 Local 52 CBA. In opposition, Speedwell argued, inter alia, that Local 7 had failed to exhaust arbitration under the 2001 Local 52 CBA. (See Dkt. 02-CV-5369, Docs. No. 119 (Speedwell's summary judgment motion), 133 (Local 7's summary judgment motion), 134 (Speedwell's opposition), 135 (Local 7's opposition and reply), and 138 (Speedwell's reply).) In Del Turco, the court denies Local 7's motion for summary judgment on the issue of unpaid dues under the 2001 Local 52 CBA because the court finds that Local 7 had not claimed unpaid dues in its complaint. See Del Turco, 02-CV-5369, Memorandum and Order of March 31, 2009, § IV.A. On the issue of exhaustion of arbitration, the court finds that Speedwell, through the manner in which it had pursued the Del Turco litigation, waived its exhaustion defense. See Del Turco, 02-CV-5369, Memorandum and Order of March 31, 2009, § III.D.
C. The 2001 Local 52 CBA and the 2003 Association CBA
1. Relevant provisions of the 2001 Local 52 CBA
Despite the 1993 creation of Local 7 by the merger of the numerous tile and bricklaying locals, the local unions that had merged into Local 7 initially continued to use their own separate CBAs, including the preprinted 1997 Local 52 CBA which became the 2001 Local 52 CBA, as described above. (Local 7 56.1 Stmt. ¶ 6.)
The 2001 Local 52 CBA, signed by Speedwell's President, Barry Kolsky, states, on page 1, that it is a trade agreement "between THE GREATER NEW YORK TILE CONTRACTORS ASSOCIATION and TILE CONTRACTORS ASSOCIATION OF NEW JERSEY, INC., hereinafter referred to as the ('Association' or the 'Employer') on their behalf and on the behalf of their respective members, who are members at the time of the execution of this Trade Agreement or may become members during the life of this Trade Agreement and any extension or renewals thereof, and [Local 52]." (Local 7 Mot. Ex. 2.)
Article XV of the 2001 Local 52 CBA is entitled "Arbitration," and provides, in relevant part:
There shall be a Joint Arbitration Board consisting of four (4) members of the Union and four (4) members of the Association.
The Board shall be empowered to hear and determine all charges and complaints arising out of the violation of any terms, covenants or conditions contained in this Agreement except claims, disputes and demands arising out of the Employer's fringe benefit contribution and audit obligations[.] (Id., Art. XV § 1.) Article XXIV of the 2001 Local 52 CBA is entitled "Renewal," and provides, in relevant part:
Both parties to this Agreement shall be held subject to all provisions herein contained while the Agreement continues in force.
Notice of any contemplated changes by either side shall be given in writing by the party contemplating such change or changes at least three (3) months prior to the expiration of this Agreement, and unless such notice is received within the time herein specified, this Agreement shall be considered binding until a new Agreement is signed. (Id. Art. XXIV § 1.)*fn6 Article XXVIII of the 2001 Local 52 CBA, entitled "Complete Arrangement," states inter alia that the "Agreement supersedes all prior agreements and understandings between the parties and constitutes the entire agreement of the parties with respect to the subject matter hereof," and that "[n]o provision of this Agreement shall be modified, amended or terminated, except by a writing specifically referring to this Agreement and signed by all of the parties hereto." (Id. Art. XXVIII §§ 2-3.)
2. Adoption and relevant provisions of the 2003 Association CBA
In 2003, "[a]fter long and protracted negotiations," Local 7 "merged the Local 77 Tile Finishers, Local 88 Tile Finishers, and the Local 52 Tile Setters individual contracts effective June 2, 2003 into one Tile Industry Local 7 CBA" -- the 2003 Association CBA. (Local 7 56.1 Stmt. ¶ 9.) The 2003 Association CBA was negotiated and signed by Local 7 and the Associations and became effective on June 2, 2003. (Doc. No. 22, Speedwell's Statement of Material Facts Pursuant to Local Rule 56.1 ("Speedwell 56.1 Stmt.") ¶ 319; Local 7 Mot. Ex. 3; Local 7 Response to Speedwell Design's Statement of Material Facts Pursuant to Local Rule 56.1 ("Local 7 56.1 Reply") ¶ 319; Hill. Aff., ¶ 20.) Speedwell contends that it is not a signatory to the 2003 Association CBA and has never been a member of either of the Associations that negotiated the 2003 Association CBA with Local 7. (Speedwell 56.1 Stmt. ¶¶ 320-21.) Speedwell also asserts that it "did not take part in the negotiations [of the 2003 Association CBA], nor was Speedwell informed of them," and that "Speedwell did not receive a copy of the [2003 Association CBA] until this lawsuit began." (Id. ¶¶ 322-23.)
Local 7 does not claim that Speedwell was notified of or participated in the negotiations, nor does Local 7 claim that Speedwell signed the 2003 Association CBA or received a copy of it prior to this suit. Instead, Local 7 disputes Speedwell's assertion that it is not a signatory of the 2003 Association CBA as a "conclusion of law," and contends that "by virtue of its signed [2001 Local 52 CBA] with Speedwell, Speedwell's failure to give proper and timely notice of its intent to terminate that agreement in the manner specified in the evergreen clause renders Speedwell in a continuous collective bargaining relationship with Local 7." (Local 7 56.1 Reply ¶ 320.) Local 7 contends that Speedwell's assertion that it has never been a member of the Associations is "irrelevant and immaterial as Speedwell clearly signed the [2001 Local 52 CBA] as an Independent Employer," but does not dispute Speedwell's assertion. (Id. ¶ 321.) Local 7 challenges Speedwell's assertions that it was not notified of and did not take part in the 2003 negotiations, and that it did not receive the 2003 Association CBA until this lawsuit, as "not supported by a citation to the record" and "inappropriate in the context of a 56.1 statement." (Local 7 56.1 Reply ¶¶ 322-23.)
The 2003 Association CBA, like the 2001 Local 52 CBA, states on page 1 that it was entered into between the Associations "on their behalf and on behalf of their respective members, who are members at the time of the execution of this Trade Agreement or may become members during the life of this Trade Agreement and any extension or renewals thereof" and Local 7.
Article XX of the 2003 Association CBA, entitled "Grievance-Arbitration," establishes a Joint Arbitration Board similar to that in the 2001 Local 52 CBA. (Local 7 Mot., Ex. 3.) As to arbitration, Article XX ...