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Mason Tenders District Council of Greater New York and Long Island v. Everest Contracting Corp.

United States District Court, Second Circuit

December 10, 2013

THE MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK AND LONG ISLAND, on behalf of General Building Laborers Local 66, Plaintiff,
v.
EVEREST CONTRACTING CORP., Defendant.

OPINION & ORDER

PAUL A. ENGELMAYER, District Judge.

On November 1, 2013, plaintiff Mason Tenders District Council of Greater New York and Long Island moved for summary judgment against defendant Everest Contracting Corporation ("Everest Contracting"), seeking confirmation of the August 10, 2012 default award of arbitrator Robert Herzog. Dkt. 4-5.

On November 4, 2013, the Court directed defendant to file its opposition by November 25, 2013. Dkt. 11. Defendant has not filed an opposition. For the following reasons, plaintiff's motion for summary judgment is granted.

I. Background[1]

On July 1, 2008, Everest Contracting, a construction contracting company, executed a Trade Agreement with Mason Tenders District Council of Greater New York and Long Island and its constituent union, Local 66 (collectively, "Mason Tenders" or "Union"). See Savci Decl. Ex. 1 ("Agreement"). The Agreement automatically renews "from year to year thereafter unless either party hereto shall give written notice to the other of its desire to modify, amend, or terminate this Agreement." Agreement, Article XI, § 1. Neither party elected to terminate the Agreement, which therefore remains in effect. Savci Decl. ¶ 7.

Under the Agreement, if Everest Contracting performs any work covered by the Agreement, it must do so under the terms and conditions of employment specified in the Agreement. Savci Decl. ¶ 10 (citing Agreement, Art. IV). The Agreement requires that Everest Contracting notify the Union if it performs any covered work, so that Union laborers may be assigned to such work. See Agreement, Art. III, § 6. The Agreement provides that, absent such notice, Everest Contracting is liable for wages and benefit contributions that would otherwise have been paid to Union workers who were not hired due to this failure to notice the job. See id. § 6(e); see generally Savci Decl. ¶ 10.

The Agreement also allows Mason Tenders to submit disputes to arbitration by written notice to Everest Contracting. See Agreement, Art. IX. Robert Herzog and Joseph Harris are both listed as eligible arbitrators. Id. The decision of an arbitrator "shall be binding upon the parties and shall be complied with by the Employer within five days of the issuance of the award." Id.

On March 22, 2012, Mason Tenders sent a Notice of Arbitration to Everest Contracting, copying arbitrator Robert Herzog. Savci Decl. Ex. 5. The Notice demanded arbitration against Everest Contracting as to the following claim:

Whether beginning on or about October 4, 2011 and continuing thereafter, Everest Contracting Corp. failed to apply the terms of the Collective Bargaining Agreement, including but not limited to, by failing to employ Local 66 laborers at the jobsite located at Auto Zone on Sunrise Highway in Copiague? If so, what should be the remedy?

Id. On May 3, 2012, arbitrator Herzog sent the parties a notice of a hearing on this matter, to be held on June 6, 2012 at 11 a.m., at the Mason Tenders District Council office. Savci Decl. Ex. 6. Everest Contracting did not appear at the hearing. Savci Decl. ¶ 15. The Union did appear and presented evidence in support of its claim, including live testimony from Local 66's business agent, Robert English. Id.

On August 10, 2012, arbitrator Herzog sustained Mason Tenders' grievance and issued a default award. Savci Decl. Ex. 4 ("Award"). The arbitrator found, based "upon the substantial evidence of the case as a whole, " that Everest Contracting had "violated [] the CBA by failing to employ Local 66 laborers at the Auto Zone jobsite in Copiague, New York during October 2011." Id. at 11. The arbitrator ordered Everest Contracting to pay 11 named individuals $1, 308.73 in wages each (for a total of $14, 396.03), and to pay "$9, 605.20 in benefit contributions to the Mason Tenders District Council Benefit Funds" on behalf of the same 11 individuals. Id. at 11-12. The Award totaled $24, 001.23.

To date, Everest Contracting has not paid the Award. Savci Decl. ¶ 17. As a result, on August 9, 2013, Mason Tenders brought this complaint, seeking confirmation of the Award. Dkt. 1. On November 1, 2013, Mason Tenders moved for summary judgment. Dkt. 4. That motion remains unopposed.

II. Discussion

The Federal Arbitration Act, 9 U.S.C. § 1 et seq., provides a "streamlined" process for a party seeking a "judicial decree confirming an award, an order vacating it, or an order modifying or correcting it." Hall St. Assocs. L.L.C. v. Mattell, Inc., 552 U.S. 576, 582 (2008). "Normally, confirmation of an arbitration award is a summary proceeding that merely makes what is already a final arbitration award a judgment of the court, and the court must grant the award unless the award is vacated, modified, or corrected." D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 110 (2d Cir. 2006). But "[a]rbitration awards are not self-enforcing." Hoeft v. MVL Grp., Inc., 343 F.3d 57, 63 (2d Cir. 2003), ...


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