United States District Court, S.D. New York
Trustees for The Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund and Training Program Fund et al., Plaintiffs,
F.J.W., Inc., Defendant.
MEMORANDUM & ORDER
J. NATHAN, District Judge
an action to confirm an arbitral award. Plaintiffs are the
Trustees for the Mason Tenders District Council Welfare Fund,
Pension Fund, Annuity Fund, and Training Program Fund (the
"Funds") and Robert Bonanza ("Bonanza"
and, together with the Funds, "Plaintiffs"), in his
capacity as Business Manager of the Mason Tenders District
Council of Greater New York (the "Union").
Defendant is F.J.W. Inc. ("Defendant"), an employer
that, Plaintiffs maintain, failed to make certain
collectively bargained contributions and dues payments to the
Funds and the Union. Plaintiffs move for confirmation of a
default award of $55, 097.35 entered against Defendant by
impartial arbitrator Joseph A. Harris, PH.D., on May 25,
2014. Defendant does not oppose and, indeed, has not appeared
in this litigation. For the reasons set forth below,
Plaintiffs' motion is GRANTED.
and the Union are parties to the Mason Tenders District
Council of Greater New York Master Independent Collective
Bargaining Agreement, dated July 1, 201 l'(the
"CBA"). See Dkt. No. 11, Declaration of
Haluk Savci, Esq. ("Savci Dec"), Exs. 1-2. Among
other things, the CBA obligates Defendant, a building
contractor that employs Union members, to make certain
regular contributions to the Funds, which are employee
benefit plans and multiemployer plans established and
maintained pursuant to the Employee Retirement Income
Security Act of 1974 ("ERISA") and the Labor
Management Relations Act of 1947, as well as dues and
contribution payments to the Union. See Id. Art. VI;
Savci Dec. ¶¶ 3, 9. The CBA also expressly binds
Defendant to "all terms and conditions" of the
individual trust agreements under which the Funds are
established (the "Trust Agreements") and to
"any rules, regulations or Bylaws adopted by the
Trustees of the Funds to regulate said Funds, as they may be
amended from time to time, including but not limited to the .
. . arbitration procedures for allegedly delinquent
contributions." Savci Dec. Ex 1. Art VI; see
also Savci Dec. ¶ 3. The Trust Agreements, in turn,
set forth monthly deadlines for employers, including
Defendant, to make contribution payments. Savci Dec. ¶
11; Savci Dec. Ex. 3. As contemplated by the CBA, they also
accord the Funds trustees the option of enforcing payment
obligations as against delinquent employers pursuant to
arbitration proceedings, rules and procedures for which are
delineated in amendments to the Trust Agreements. Savci Dec.
¶¶ 11-12; Savci Dec. Exs. 3-4.
2013, a dispute arose regarding Defendant's failure to
timely make certain fringe benefit and other contribution and
dues payments to the Funds and the Union. Savci Dec. ¶
14; Savci Dec. Exs. 5-6. By letters dated November 1, 2013
and December 4, 2013, the Funds and Bonanza demanded that
Defendant cure the delinquencies. Savci Dec. ¶ 14; Savci
Dec. Ex. 6. After these demands evidently failed to resolve
the dispute, Plaintiffs served Defendant with a Notice of
Intention to Arbitrate, dated April 2, 2014. Savci Dec.
¶ 5; Savci Dec. Exs. 2, 5. On April 11, 2014, Arbitrator
Harris sent the parties notice that a hearing would take
place on May 22, 2014. Savci Dec. Exs. 2, 5.
did not appear before Arbitrator Harris, who, accordingly,
conducted the May 22, 2014 hearing as a default proceeding.
Savci Dec. ¶ 16; Savci Dec. Ex. 2. At the hearing,
Plaintiffs introduced evidence in the form of a series of
weekly Union shop steward reports for the period December 1,
2012 through May 31, 2013, a deficiency report based the shop
steward reports and on records of Defendants'
contribution and dues payments, and a summary report of a
payroll audit conducted by independent auditor Schultheis
& Panettieri, LLP covering the period February 1, 2012 to
March 29, 2013. Savci Dec. ¶ 17; Savci Dec. Exs. 2, 6.
Based on this evidence, which he deemed "substantial and
credible, " Arbitrator Harris concluded that Defendant
was delinquent $33, 540.92 and $2, 695.99 in fringe benefit
contributions and Union dues and contributions, respectively,
for the period February 1, 2012 to March 29, 2013, as well as
$4, 762.56 and $364.32 in fringe benefit contributions and
Union dues and contributions, respectively, for the period
April 1, 2013 to May 30, 2013. Savci Dec. Ex. 2. After
assessing interest, audit costs, attorney's fees,
arbitrator fees, and ERISA liquidated damages in the amount
of 20% of the outstanding payment principal, Arbitrator
Harris entered a default award of $55, 097.35. Id.
On May 25, 2014, Arbitrator Harris issued a written opinion
memorializing the award. Id.
made no payments against the award. Savci Dec. ¶ 18.
Plaintiffs initiated this action seeking confirmation of the
award on May 22, 2015. Id. ¶ 19; Savci Dec. Ex.
6; Dkt. No. 1.
"confirmation of an arbitration award is 'a summary
proceeding that merely makes what is already a final
arbitration award a judgment of the court.'"
D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d
95, 110 (2d Cir. 2006) (quoting Florasynth, Inc. v.
Pickholz, 750 F.2d 171, 176 (2d Cir. 1984)). The court
'"must grant' the award 'unless the award is
vacated, modified, or corrected."' Id.
(quoting 9 U.S.C. § 9). The Court of Appeals has
recognized that an "an extremely deferential standard of
review" is appropriate in the context of arbitral awards
in order "[t]o encourage and support the use of
arbitration by consenting parties." Porzig v.
Dresdner, Kleinwort, Benson, North Am. LLC, 497 F.3d
133, 138-39 (2d Cir. 2007); see also Willemijn
Houdstermaatschappij, BVv. Standard Microsystems Corp.,
103 F.3d 9, 12 (2d Cir. 1997) ("[Arbitration awards are
subject to very limited review in order to avoid undermining
the twin goals of arbitration, namely settling disputes
efficiently and avoiding long and expensive
litigation.") (internal quotation marks omitted).
Accordingly, "[o]nly 'a barely colorable
justification for the outcome reached' by the
arbitrator is necessary to confirm the award."
D.H. Blair, 462 F.3d at 110 (quoting Landy
Michaels Really Corp. v. Local 32B-32J, Serv. Emps. Int'l
Union, 954 F.2d 794, 797 (2d Cir. 1992)). Even when the
"arbitrator's rationale for an award [is] not. . .
explained, " the award "should be confirmed if a
ground for the arbitrator's decision can be inferred from
the facts of the case." D.H. Blair, 462 F.3d at
110 (citing Barbier v. Shear son Lehman Button,
Inc., 948 F.2d 117, 121 (2d Cir. 1991)) (internal
quotation marks omitted).
unopposed motion to confirm an arbitral award should be
treated as an unopposed motion for summary judgment, and, as
such, the court "may not grant the motion without first
examining the moving party's submission" to
determine if it has met its attendant burden. D.H.
Blair, 462 F.3d at 110 (citing Vt. Teddy Bear Co.
Inc. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.
2004)) (internal quotation marks omitted); see also
Trustees of the UNITE HERE Nat. Health Fund v. JYApparels,
Inc., 535 F.Supp.2d 426, 428 (S.D.N.Y. 2008) ("In
essence, the petition and the accompanying record become a
motion for summary judgment, " and "[t]he
court's ruling must be based on the record, which
includes the arbitration agreement and the arbitration
award.") (internal quotation marks omitted). Summary
judgment is appropriate, even in the absence of opposition,
only if "the movant shows that there is no genuine issue
as to any material fact and the movant is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(a);
Vt. Teddy Bear, 373 F.3d at 244. "If the
evidence submitted in support of the summary judgment motion
does not meet the movant's burden of production, then
summary judgment must be denied even if no opposing
evidentiary matter is presented." D.H. Blair,
462 F.3d at 110 (emphasis omitted).
Plaintiffs Have Demonstrated That They Are Entitled to
Confirmation of the Arbitration Award as a Matter of
have carried their burden, and confirmation of the award
entered by Arbitrator Harris is warranted.
have submitted uncontroverted evidence that the dispute at
issue was arbitrable. As discussed, the CBA - continuing in
effect by virtue of an automatic renewal clause, see
Savci Dec.¶ 7; Savci Dec. Ex. 1. Art. XII - binds
Defendant to the terms, including any arbitration provisions,
of the Trust Agreements, and those Agreements in turn grant
the Funds the right to arbitrate disputes regarding
contribution delinquencies at their discretion. Savci Dec.
Ex. 1. Art. VI; see also Savci Dec. Exs. 3-4. The
CBA also independently grants the Union the right to
arbitrate disagreements "involving questions of
interpretation or application of any clause" of the CBA.
Savci Dec. Ex. 1, Art. X. The record reflects that Plaintiffs
served demands to cure the payment delinquencies on Defendant
before duly initiating arbitration pursuant to written notice
in accordance with the CBA and the Trust Agreements. Savci
Dec. Exs. ...