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Empire State Carpenters Welfare Annuity and Apprentice Training Funds v. Conway Construction of Ithaca

February 19, 2010

EMPIRE STATE CARPENTERS WELFARE ANNUITY AND APPRENTICE TRAINING FUNDS, BY PATRICK MORIN AND JOSEPH OLIVIERI AS TRUSTEES, AND SOUTH CENTRAL DISTRICT COUNCIL OF CARPENTERS DEFINED BENEFIT FUND, BY DAVID F. HAINES AND FRANK JONES, AS TRUSTEES, AND THE EMPIRE STATE REGIONAL COUNCIL OF CARPENTERS, BY PATRICK MORIN, BUSINESS MANAGER, PLAINTIFFS,
v.
CONWAY CONSTRUCTION OF ITHACA, INC., DEFENDANT.



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

MEMORANDUM AND ORDER

Plaintiffs Empire State Carpenters Welfare Annuity and Apprentice Training Funds, by Patrick Morin and Joseph Olivieri as Trustees, and South Central District Council of Carpenters Defined Benefit Fund, by David F. Haines and Frank Jones, as Trustees (collectively, the "Funds"), and the Empire State Regional Council of Carpenters, by Patrick Morin, Business Manager (the "Union")*fn1 (collectively with the Funds, "Plaintiffs") filed the present action against defendant Conway Construction of Ithaca, Inc. ("Conway" or "Defendant") to recover unpaid fringe benefit contributions pursuant to a collective bargaining agreement ("CBA"). Although it is undisputed that Conway is not a signatory to the CBA, Plaintiffs maintain that Conway is nevertheless bound to the CBA as a result of its conduct manifesting an intent to adopt the agreement. Both Plaintiffs and Defendant have moved for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons that follow, the Court finds that Conway is bound to the CBA. However, because it is unclear from the present record whether Conway effectively terminated its obligations under the CBA, both motions for summary judgment are denied.

BACKGROUND

The material facts, drawn from the Complaint and the parties' Local 56.1 Statements, are undisputed unless otherwise noted.

Conway was incorporated in 1996 and engages in the construction business. Conway usually employs between five and ten individuals.

In November 1996, Conway signed a CBA with the Union (the "1996 Agreement") and made fringe benefit contributions to the Funds on behalf of Conway's employees who were members of the Union. The CBA provided that it expired on April 30, 1998. According to Plaintiffs, the CBA was extended through April 30, 2001, though there is no evidence that Conway ever signed an agreement extending the term of the CBA.

John Conway, the Vice President of Conway, had several meetings with Union representatives from 1998 through 2003. During those meetings, he agreed to pay union wages and benefits but refused to sign any written agreement.

In 2001, the Union entered into a new CBA with the Construction Trades Employers of South Central New York, Inc. ("CTE"), a multi-employer bargaining association (the "2001 Agreement"). The 2001 Agreement was effective from May 1, 2001 through April 30, 2006. Pursuant to the terms of the 2001 Agreement, the fringe benefit contribution rates payable to the Funds by employers on behalf of carpenter employees increased from the rates in the predecessor CBA between the Union and the Construction Industry Employers Association of South Central New York. It is undisputed that Conway never became a signatory to the 2001 Agreement.

Between May 1, 2001 and April 30, 2003, Conway paid the hourly wages and the hourly fringe benefit contributions to its carpenter employees as set forth in the 2001 Agreement. In fact, at his deposition, John Conway testified that although he refused to sign the 2001 Agreement, he paid wages and benefits to his carpenter employees in accordance with that agreement "[a]s long as [he] could." (Aff. of James Versocki, dated Feb. 27, 2009 ("Versocki Aff.") Ex. 5 at 15.) In addition, Conway submitted remittance forms to the Funds on behalf of its carpenter employees along with its fringe benefit contributions. Each form provided that:

Any signatory to this form is hereby bound to any and all applicable collective bargaining agreement with [the Union] concerning wages, hours and working conditions for the applicable work and is hereby bound to any Fund's documents, trust agreements or other similar documents.

(Versocki Aff., Ex. 3.) The remittance forms were signed by Gail Conway, President of Conway, or Sheryl Scott, the bookkeeper of Conway.

On January 31, 2003, John Conway wrote a letter to CTE providing as follows: Due to the increasing costs of staying in business in New York State, we will be making a decision at the end of the 1st quarter whether or not we can maintain union rates.

We have been trying to keep up with the rising wages and workers' compensation rates, but we've been losing customers over the past few years. Currently there are only a few remaining in the Ithaca area willing to pay these union rates.

This decision will be based on the amount of union work in the spring. At that time I will make a final decision as to whether or not we remain a union shop. . . . .

A copy of the letter was sent to the Union.

Thereafter, on April 8, 2003, John Conway notified both the Union and the CTE via letter that Conway had "reviewed the first quarter" and would "no longer be a union shop effective May 1, 2003." (Id. Ex. C.) After April 1, 2003, Conway ceased making fringe ...


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