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, and ROBERT BONANZA, Petitioners,
BRISCOE SUNRISE CORPORATION, Respondent.
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge
Trustees for the Mason Tenders District Council Welfare Fund,
Pension Fund, Annuity Fund, and Training Program Fund (the
“Funds”) and Robert Bonanza (together,
“Petitioners”) have filed a motion for summary
judgment to confirm an arbitration award (the
“Award”) under Section 301 of the Taft-Hartley
Labor Management Relations Act (the “LMRA”), 29
U.S.C. § 185. Respondent Briscoe Sunrise Corporation did
not appear in the underlying arbitration (the
“Arbitration”). Nor has it appeared in the
instant action. And because the undisputed facts of this case
establish that the Award must be confirmed, the Court grants
case arises out of a labor dispute over a
collective-bargaining agreement: the Project Labor Agreement
Covering Specified Construction Work Under the Capital
Improvement Program for Fiscal Years 2014-2019 (the
“SCA PLA”). The Mason Tenders District Council of
Greater New York and Long Island is a labor union under the
LMRA and “a member of the Building and Construction
Trades Council of Greater New York and Vicinity” (the
“BCTC”). (Pet'r 56.1 ¶ 2). Bonanza is
the union's Business Manager. (Id. at ¶ 3).
The “Funds are ‘employee benefit plan[s]' as
defined in Section 3(3) of [the Employee Retirement Income
Security Act of 1974 (‘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).” (Id. at ¶ 1).
PLA is an agreement between the BCTC and the New York City
School Construction Authority. (Pet'r 56.1 ¶ 4; SCA
PLA art. 1, § 1). It sets terms “for
rehabilitation and renovation work performed on New York City
Public Schools.” (SCA PLA, art. 3, § 1). As
relevant here, the SCA PLA requires contractors performing
work pursuant to it “to pay wages and benefit
contributions … to [ ] applicable jointly trusted
employee benefit fund[s]” (like the Funds here).
(Pet'r 56.1 ¶ 8). And to this end, the SCA PLA also
requires such contractors to make benefit contributions
pursuant to the terms of the benefit funds' “Trust
Agreements.” (SCA PLA, art. 11, § 2(C)).
provisions in the Funds' Trust Agreements bear mention
here.First, Section 9.7 empowers the Funds to
“audit payroll, employment, and any other pertinent
records of any” contractor-employer bound by the Trust
Agreements. (Trust Agreements, § 9.7). Second, Section
9.8 provides that the Funds may initiate arbitration
proceedings against contractor-employers who “fail[ ]
to make required contributions to the” Funds.
(Id., § 9.8).
a subcontractor, entered into the SCA PLA in February 2013,
in order to perform work at Staten Island Technical High
School. (Savci Decl., Ex. 2 at 1-2). In October 2014, the
Funds authorized an accounting firm to audit Respondent's
“books and records” for the period between
“February 15, 2013[, ] through August 31, 2014 (the
‘Audit Period').” (Id. at ¶ 19;
4/13/15 Letter). In a letter the Funds received on April 13,
2015, the accounting firm reported to the Funds that
Respondent had failed to make required contributions during
the Audit Period. (4/13/15 Letter). Consequently, the Funds
sent Respondent two certified letters demanding repayment for
its outstanding balance. (4/22/15 Letter; 5/26/15 Letter).
did not pay that balance. (Savci Decl., ¶ 20). On August
20, 2015, the Funds sent to Respondent and Joseph Harris, an
arbitrator, a Notice of Intention to Arbitrate. (Arbitration
Notice 1-2). In that Notice, the Funds wrote that they
intended to seek repayment from Respondent for its delinquent
payments during the Audit Period, as well as other delinquent
payments from a separate, later period in time. (Id.
at 1). On August 25, 2015, Arbitrator Harris mailed his own
letter to the Funds and Respondent, writing that he intended
to hold an arbitration hearing on September 21, 2015. (Savci
Decl., ¶ 21; Award 1). Arbitrator Harris sent that
letter to both parties by USPS First-Class Mail. (Award 1).
He received no response from Respondent; nor was his letter
to Respondent returned by the USPS. (Id.).
Arbitration proceeded as scheduled on September 21, 2015.
(Award 1). Respondent did not appear. (Id.). The
Funds did, although they “amended their [arbitration]
claim to cover only the issue of payment covering the Audit
Period.” (Savci Decl., ¶ 23). And in support of
that claim, the Funds introduced into evidence the results of
their 2015 payroll audit. (Award 2). On the basis of that
audit, the Funds argued that Respondent had failed to pay
$15, 504.08 in required benefit contributions, and also owed
thousands of dollars in other dues, costs, interest, and
liquidated damages. (Id.; see also Trust
Agreements, § 9.9 (permitting Petitioners to recover,
inter alia, liquidated damages and attorney's
fees “[i]n any legal action for [u]npaid
[c]ontributions”)). In total, the Funds sought $26,
309.37. (Award 2). On the basis of “the substantial and
credible evidence” the Funds presented at the
Arbitration, Arbitrator Harris issued an Opinion and Default
Award for the full amount that the Funds sought on October 1,
filed a Complaint against Respondent on September 30, 2016.
(Dkt. #1). In response to an Order of this Court
dated October 5, 2016 (Dkt. #6), Petitioners filed a motion
for summary judgment and supporting papers on October 19,
2016 (Dkt. #9-12). Respondent has not appeared in this