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Thomas Gesualdi, Louis Bisignano v. Laws Construction Corp

December 5, 2012

THOMAS GESUALDI, LOUIS BISIGNANO, ANTHONY PIROZZI, DOMINICK MARROCCO, ANTHONY D'AQUILA, FRANK FINKEL, JOSEPH FERRARA, MARC HERBST, THOMAS PIALI, AND
DENISE RICHARDSON, AS TRUSTEES AND FIDUCIARIES OF LOCAL 282 WELFARE, PENSION ANNUITY, JOB TRAINING AND VACATION AND SICK LEAVE TRUST FUNDS, PLAINTIFFS, :
v.
LAWS CONSTRUCTION CORP., DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION & ORDER

This is an action under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §§ 1001 et seq., in which certain union benefit funds (the "Funds"), through their trustees, seek to recover unpaid contributions allegedly owed by defendant Laws Construction Corp. ("Laws"), a general contractor. The Funds' claim is predicated on a collective bargaining agreement ("CBA") between Laws and Local 282 of the International Brotherhood of the Teamsters. As relevant here, the Funds allege that Laws employed a non-union subcontractor, Jo-Di Trucking, Inc. ("Jo-Di"), whose employees were not appropriately compensated under the CBA.

In an Opinion and Order of December 22, 2010, summary judgment was entered against the defendant on all of the plaintiffs' claims (the "December 22 Order"). On June 4, 2012, the Second Circuit issued a summary order vacating in part the December 22 Order and remanding the case to this Court for further proceedings. See Gesualdi v. Laws Const. Corp., ---Fed. Appx. ---, 2012 WL 1970454 (2d Cir. June 4, 2012). Once jurisdiction was restored to this Court, the defendant was afforded the opportunity to take additional discovery and show cause why summary judgment should not again be entered for the plaintiffs. Having considered the defendant's submission and a responsive filing by the plaintiffs, the Court concludes, for the reasons that follow, that the plaintiffs are entitled to summary judgment.

BACKGROUND

This Court has already issued two Opinions in this litigation. See 759 F. Supp. 2d 432 (S.D.N.Y. 2010); 759 F. Supp. 2d 447 (S.D.N.Y. 2011). Familiarity with those Opinions is assumed; only those facts necessary to explain the present decision are recited below.

As noted, the plaintiffs assert that Laws failed to make required benefit plan contributions in connection with its employment of a trucking subcontractor, Jo-Di. Two provisions of the CBA are relevant to this claim.

First, Section 6(D) of the CBA prohibits "the Employer," here Laws, from hiring outside trucks or equipment "unless all [its] available suitable trucks and equipment are in use." If that is the case, the Employer must "hire only from truck or equipment suppliers whose drivers receive wages, working conditions, benefits and standards of employment no less favorable than those" applicable to union labor (the "No Less Favorable Clause").

Second, Section 7 of the CBA specifically addresses subcontracting and provides:

In the event that any subcontractor, or subcontractor of a subcontractor, fails to pay the wages required by this Agreement, or to make contributions to the Local 282 Welfare, Pension, Annuity & Job Training Funds . . . , as required by this Agreement, and if the Union, by an Officer, by written notice with report of delivery, notifies the Employer that a truck or equipment supplier is not complying, the Employer shall be responsible for such non-compliance for the period only beginning two (2) working days after the day of receipt of such notice.

In order to enforce the No Less Favorable Clause and Section 7's imposition on the Employer of vicarious liability for non-compliance, the CBA requires that, if an employer hires outside trucks or equipment, it must notify the Union on a weekly basis of the "identity and address of the truck or equipment supplier, the number of trucks supplied and the hours of work involved for each truck." In addition, for any subcontract work, the Employer must submit to the Union "monthly reports of all hours worked for each Employee, in all classifications covered by [the CBA], whether that work is performed by an Employee of the Employer or an Employee of a subcontractor, or any subcontractor of a subcontractor."

The CBA specifies procedures for handling "any dispute as to the existence or amount of any delinquency resulting from a truck or equipment supplier's non-compliance" and provides that "the Employer and/or Contractor, and truck or equipment supplier may be held jointly and severally liable and may have to pay to the person or funds entitled thereto the amount of any delinquency arising after" the Employer has been given notice of non-compliance.

Laws has never disputed that it failed to make the reporting required by the CBA regarding its use of Jo-Di. Nor has it disputed the plaintiffs' contention that Jo-Di did not make contributions to the Funds for its employees. In light of these concessions and reading Section 6(D)'s reference to "benefits . . . no less favorable" to require plan contributions on behalf of Jo-Di employees, this Court entered summary judgment for the plaintiffs on December 22, 2010. The same Opinion and Order granted the plaintiffs summary judgment on their claim that Laws failed to contribute to the Funds for certain hours worked by its own employees.

In its June 4 Order, the Court of Appeals disagreed with this Court's reading of Section 6(D):

It is not clear from Section 6(D) . . . that the only way for Laws to fulfill that commitment is to contribute to the Funds. . . . It appears that Laws would be in compliance with Section 6(D) if the company it retained: directly provided its employees conforming wages, conditions and benefits; contributed to other funds similar to the Fund on its employees' behalf; paid its employees a lump-sum at least equal to the value of the ...


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