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Trustees for Mason Tenders District Council Welfare Fund v. Yes Restoration

United States District Court, S.D. New York

June 19, 2015

TRUSTEES FOR THE MASON TENDERS DISTRICT COUNCIL WELFARE FUND, PENSION FUND, ANNUITY FUND, and TRAINING PROGRAM FUND and ROBERT BONANZA, as Business Manager of the MASON TENDERS DISTRICT COUNCIL OF GREATER NEW YORK, Petitioners,
v.
YES RESTORATION, Respondent.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge.

Petitioners Trustees for the Mason Tenders District Council Welfare Fund, Annuity Fund, Pension Fund and Training Program Fund (collectively, the "Funds") and Robert Bonanza, the Business Manager of the Mason Tenders District Council of Greater New York and Long Island (the "MTDC"; together with the Funds, "Petitioners"), have filed this motion for summary judgment on their petition to confirm an October 26, 2013 Opinion and Default Award (the "Award"), issued by arbitrator Joseph Harris in favor of Petitioners. Respondent YES Restoration ("YES") has not opposed the petition or the summary judgment motion, nor has it otherwise appeared in this action. For the following reasons, Petitioners' motion is granted.

BACKGROUND[1]

The Funds are "employee benefit plan[s]" as defined in Section 3(3) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1002(3), and "multiemployer plan[s]" within the meaning of Section 3(37)(A) of ERISA, 29 U.S.C. § 1002(37)(A). (56.1 Stmt. ¶ 4). Each Fund is administered by a Board of Trustees (the "Trustees") pursuant to one or more Trust Agreements. ( Id. at ¶ 4). The Funds have also adopted a set of arbitration procedures governing audit and delinquency disputes with employers (the "Arbitration Procedures"). ( Id. at ¶ 13).

Respondent YES entered into a Collective Bargaining Agreement (the "CBA") with the MTDC that was effective from December 1, 2007, to November 30, 2012. (Savci Decl. Ex. 1). The CBA sets forth the terms and conditions of employment for all bargaining unit employees, and requires YES to pay contributions to the Funds for all employees covered by the CBA at the rates specified therein. (56.1 Stmt. ¶ 8). The CBA also requires that YES make available its books and records for inspection in order to confirm compliance with the terms and conditions of the CBA. ( Id. at ¶ 12). The CBA further provides that YES agrees to and shall be bound by the terms and conditions of the Trust Agreements and any amendments to the Trust Agreements. ( Id. at ¶ 10). The CBA designates the Funds as the authorized collection agent of the MTDC for union dues and Political Action Committee ("PAC") contributions voluntarily authorized by employees. ( Id. at ¶ 8).

Under amendments to the Trust Agreements, the Trustees have the option of commencing arbitration proceedings if an employer becomes delinquent in the payment of contributions to the Funds or fails to provide its books and records for examination. (56.1 Stmt. ¶ 12). In any legal action for unpaid contributions, the Trust Agreements, Arbitration Procedures, and terms of the CBA provide that YES shall pay to the Funds all unpaid contributions due and payable, interest on such unpaid contributions, liquidated damages, [2] and all attorneys' fees and costs of the action. ( Id. at ¶ 13).

YES failed to pay fringe benefit contributions and other monies on behalf of its employees to the Funds for the period from October 1 through November 30, 2012. (56.1 Stmt. ¶ 1). YES also refused to make available its books and records for examination by Funds auditors. ( Id. ). On August 29, 2013, the MTDC forwarded a Notice of Intention to Arbitrate to YES demanding arbitration and seeking remedy on the issues of (i) whether YES had failed to make the requisite benefit fund contributions, union dues, PAC contributions, and other monies for the period from October 1 through November 30, 2012, as based on a shop steward report obtained by Petitioners; and (ii) whether YES failed to make available for examination by Funds auditors its books and records for the period from November 25, 2008, through January 16, 2012. ( Id. at ¶ 14). The MTDC also provided YES with a copy of the Arbitration Procedures. ( Id. ). Copies of the Notice were simultaneously forwarded to Arbitrator Harris, who by letter dated September 6, 2013, notified the parties that a hearing to adjudicate the matter would be held on October 9, 2013. ( Id. ).

On October 9, 2013, Arbitrator Harris convened the hearing. (56.1 Stmt. ¶ 15). No representative appeared on behalf of YES. ( Id. ). The Funds submitted evidence in support of their claims against YES, including testimony from the Funds' Collection Manager and shop steward reports obtained by the Funds indicating that for the relevant period the Funds had recorded a minimum of 798 hours of work by YES employees for which no corresponding benefit payments had been made to the Funds. ( Id. ). The Funds further provided evidence that YES continually failed to make available its books and records for examination for the period commencing November 25, 2008, through the present. ( Id. ).

On October 26, 2013, Arbitrator Harris issued the Award, finding in favor of Petitioners and ordering Respondent to pay $14, 826 for principal contributions due for fringe benefits; $2, 125.04 for delinquent dues and PAC contributions; $405.90 for current interest; $2, 965.36 for liquidated damages (20% of the principal contributions due for fringe benefits); $500 for attorneys' fees; and $800 for arbitration costs. (56.1 Stmt. ¶ 16). The arbitrator also ordered YES to schedule an examination of its books and records "for the period November 25, 2008 through January 16, 2012 or through the most current period." ( Id.; Award 3). After the issuance of the Award, Petitioners made several demands for payment and for an examination of YES's books and records. (56.1 Stmt. ¶ 17). To date, YES has neither made payments towards the Award nor allowed an examination of its books and records. ( Id. ). YES submitted no motion to vacate, modify, or correct the Award. ( Id. ).

On October 24, 2014, Petitioners filed the instant action under the Federal Arbitration Act (the "FAA"), 9 U.S.C. §§ 1-16, seeking confirmation of the Award and for YES to make available for examination its books and records for the period November 25, 2008, to the present. (Dkt. #1).[3] On October 31, 2014, two copies of the summons and complaint were served on YES at its place of business. (56.1 Stmt. ¶ 3). YES made no response to the Petition and did not file a notice of appearance at that time. ( Id. ). Petitioners filed the instant motion for summary judgment on February 20, 2015. (Dkt. #11). YES has not filed any opposition and still has not appeared in this action.

DISCUSSION

A. Applicable Law

The Second Circuit has "repeatedly recognized the strong deference appropriately due arbitral awards and the arbitral process, and has limited its review of arbitration awards in obeisance to that process." Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497 F.3d 133, 138 (2d Cir. 2007). "To encourage and support the use of arbitration by consenting parties, " the Court "uses an extremely deferential standard of review for arbitral awards." Id . at 139. "Further, the federal policy in favor of enforcing arbitration awards is particularly strong with respect to arbitration of labor disputes.'" Supreme Oil Co., Inc. v. Abondolo, 568 F.Supp.2d 401, 406 (S.D.N.Y. 2008) (quoting New York Hotel & Motel Trades Council v. Hotel St. George, 988 F.Supp. 770, 774 (S.D.N.Y. 1997)). In such cases, "[i]t is only when the arbitrator strays from interpretation and application of the agreement and effectively dispenses his own brand of industrial justice that his decision may be unenforceable." Major League Baseball Players Ass'n v. Garvey, 532 U.S. 504, 509 (2001) (internal quotations marks omitted); see also id . (holding that courts cannot review the merits of arbitration awards entered into pursuant to an agreement between an employer and a labor organization).

Confirmation of an arbitration award is generally "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) (internal quotation marks and citation omitted); Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 582 (2008) ("[A] court must' confirm an arbitration award unless' it is vacated, modified, or corrected [under § 10 or § 11]." (quoting 9 U.S.C. § 9)). Generally speaking, courts in this Circuit will vacate an arbitration award "only upon finding a violation of one ...


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