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Mason Tenders Dist. Council of Greater New York v. CAC of New York, Inc.

United States District Court, S.D. New York

September 16, 2014

MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK AND LONG ISLAND, Plaintiff,
v.
CAC OF NEW YORK, INC. and ATLAS RESTORATION CORP., Defendants

For Mason Tenders District Council of Greater New York and Long Island, Plaintiff: Haluk Savci, Tamir W Rosenblum, Mason Tenders District Council of Greater NY, New York, NY.

For Atlas Restoration, Corp., Defendant: John Thomas Bauer, LEAD ATTORNEY, Lisa Marie Griffith, Littler Mendelson, P.C.( Melville), Melville, NY.

Page 433

OPINION AND ORDER

Edgardo Ramos, United States District Judge.

Plaintiff Mason Tenders District Council of Greater New York and Long Island (" Plaintiff" ) brings suit against Defendants CAC of New York, Inc. (" CAC" ) and Atlas Restoration Corp. (" Atlas" ) (collectively, " Defendants" ) pursuant to section 301 of the Labor Management Relations Act (the " LMRA" ). Doc. 1 (" Compl." ). Plaintiff seeks to confirm an arbitration award issued pursuant to the procedures set forth in a collective bargaining agreement (" CBA" ) between itself and CAC. Id. Additionally, Plaintiff seeks to compel both CAC and Atlas, a non-signatory to the CBA, to participate in the second phase of the arbitration proceedings on the grounds that the two were acting as joint employers. Id.

Atlas moves to dismiss Plaintiff's claim against it pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Doc. 10. For the reasons set forth below, Atlas's motion is GRANTED in part and DENIED in part, and Atlas will be dismissed from the case.

I. Factual Background

The following facts are based on the allegations in the Complaint, which the Court accepts as true for purposes of the instant motion. See Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012) (evaluating a Rule 12(b)(6) motion); J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004) (citing Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129, 131 (2d Cir. 1998)) (evaluating a Rule 12(b)(1) motion).[1]

Plaintiff and CAC executed the current CBA in December 2009. Compl. ¶ 5.

Page 434

That agreement extended through November 30, 2014 the collective bargaining agreement that was already in place, with some modifications. Id. As relevant to the instant motion, the CBA required CAC to notify the appropriate union hiring hall whenever it needed employees for work covered by the CBA, to pay union employees specified wages, and to make fringe benefit contributions on their behalf. Id. ¶ ¶ 8, 9, 11. The CBA also contained a grievance and arbitration provision, which required the parties to submit to arbitration any dispute arising under its terms. Id. ¶ 12. This provision designated Joseph A. Harris (" Harris" ) as arbitrator and specified that any decision he made was binding on the parties and to be complied with by CAC within five days. Id.

In September 2012, a dispute arose between Plaintiff and CAC with regard to an asbestos abatement project in Co-op City.[2] See id. ¶ ¶ 13, 16. Plaintiff claimed that CAC had, inter alia, failed to notify Plaintiff about the commencement of work or to compensate workers appropriately. Id. ¶ ¶ 13-14. Harris held a hearing on January 25, 2013. Id. ¶ 15. CAC's primary defense was that, on October 3, 2012, it ceased performing work at Co-op City and turned over the project to Atlas. Compl. ¶ 20.[3]

Harris issued an award on March 23, 2013. Compl. ¶ 16; see Decl. of John T. Bauer Ex. A (the " Award" ). The award addressed the following stipulated issue: " Whether since on or after October 3, 2012 asbestos abatement work at Co-op City was done by or with the consent of CAC of New York, in violation of the Collective Bargaining Agreement (CBA)?" Award at 2. Harris found in favor of Plaintiff, concluding that " [a]fter October 3, 2012, the asbestos abatement work at Co-op City was done by or with the consent of CAC of New York, in violation of the Collective Bargaining Agreement (CBA)." Id. at 8. Harris's opinion indicated that " [t]he Parties stipulated that a second hearing will be held to determine damages and will also address the issue, among others, of at what point, if at all, any party for which CAC is not responsible assumed the Co-op city [sic] abatement work." Id.

On September 25, 2013, Plaintiff sent Defendants a letter to confirm their participation in the damages phase of the proceedings. Compl. ¶ 19. Neither Defendant responded. Id. Plaintiff therefore commenced this action on October 11, 2013. Plaintiff alleges that, by failing to participate in the damages phase of the arbitration, CAC breached the CBA and consequently violated the LMRA. Id. ¶ 24. Plaintiff also alleges that Atlas implicitly adopted the obligations imposed by the CBA when it became a joint employer with CAC. Id. ¶ 26. Thus, Plaintiff alleges that, by failing to participate in the damages portion of the arbitration, Atlas also violated the LMRA. Id.

Atlas now moves pursuant to Rules 12(b)(1) and 12(b)(6), asking the Court to dismiss the Complaint in its entirety as against Atlas.[4] Doc. 10. Atlas argues that the Complaint should be dismissed for lack of subject matter jurisdiction because the arbitration ...


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