United States District Court, S.D. New York
TRUSTEES OF THE NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS PENSION FUND, WELFARE FUND, ANNUITY FUND, AND APPRENTICESHIP, JOURNEYMAN RETRAINING, EDUCATIONAL AND INDUSTRY FUND, TRUSTEES OF THE NEW YORK CITY CARPENTERS RELIEF AND CHARITY FUND, THE NEW YORK CITY AND VICINITY CARPENTERS LABOR-MANAGEMENT CORPORATION, and NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS, Plaintiffs,
PULCO, INC., Defendant.
OPINION & ORDER
A. ENGELMAYER, DISTRICT JUDGE.
February 14, 2017, the Trustees of the New York City District
Council of Carpenters Pension Fund, Welfare Fund, Annuity
Fund, and Apprenticeship, Journeyman Retraining, Educational
and Industry Fund; the Trustees of the New York City
Carpenters Relief and Charity Fund; the New York City and
Vicinity Carpenters Labor-Management Corporation; and the New
York City District Council of Carpenters (collectively,
"petitioners") commenced this action to confirm an
arbitral award ("the Award") issued against
respondent Pulco, Inc., ("Pulco"). This action was
filed under Section 502(a)(3) of the Employee Retirement
Income Security Act of 1974 ("ERISA"), 29 U.S.C.
§ 1132(a)(3); Section 301 of the Labor Management
Relations Act of 1947 ("LMRA"), 29 U.S.C. §
185; and Section 9 of the Federal Arbitration Act
("FAA"), 9 U.S.C. § 9. Petitioners also seek
interest plus attorneys' fees and costs incurred during
this proceeding, This decision confirms the Award and grants
such other relief.
The Parties' Agreement and the Arbitral Award
at least May 28, 2013, Pulco has been a member of the
Building Contractors Association of New York
("BCA"). Dkt. 1 ("Petition"), Ex. B at 1,
16. As a member of the BCA, Pulco must comply with a
collective bargaining agreement (the "Agreement")
executed by various labor organizations and the BCA. Petition
Ex. A (the "Agreement"). Under the Agreement, Pulco
was required to contribute to certain fringe benefit funds
("the Funds") for every hour its covered employees
worked. See Agreement at 46-47. In June 2015, the
labor organizations and the BCA extended the CBA's terms
in a Memorandum of Agreement. Petition Ex. C.
ensure compliance, the Agreement authorized the Funds to
audit Pulco's books and records. Agreement at 46. If
Pulco failed to comply with an audit request, a policy
incorporated by reference in the Agreement authorized the
Funds to estimate Pulco's delinquent contributions based
on the company's past remittances. See Petition
Ex. D ("Collection Policy") at 6-7; Agreement at
51. A dispute arose when Pulco refused to submit to an audit.
Petition ¶ 17. Pursuant to a provision in the Funds'
Collection Policy, the Funds estimated Pulco's delinquent
remittances as $1, 278, 189.07. Petition ¶¶ 15, 17.
XVI, Section 7 of the Agreement contains an arbitration
clause stating that "either party may seek
arbitration" to resolve "any dispute or
disagreement." Agreement at 54-55. The clause provides
that the arbitrator "shall have full and complete
authority to decide any and all issues, " that the
arbitrator's award "shall be final and binding,
" and that the award "shall be wholly enforceable
in any court of competent jurisdiction." Id. at
the Agreement, if court proceedings are later instituted to
collect delinquent contributions to fringe benefit funds, the
employer must pay the unpaid contributions plus
"interest on the unpaid contributions determined at the
prime rate of Citibank plus 2%, " plus the greater of
either "the amount of the interest charges on the unpaid
contributions as determined above" or "liquidated
damages of 20% of the amount of the unpaid contribution,
" as well as "reasonable attorney's fees and
costs of the action." Id. at 53-54.
to the Agreement, petitioners submitted the dispute to
arbitration. Petition ¶ 18. On September 22, 2016,
arbitrator Roger Maher held a hearing. See Petition
Ex. F ("Award") at 1-2. Despite having received
notice of the arbitration, Pulco did not appear or request an
adjournment. Id. at 2. The arbitrator accordingly
found Pulco in defauh, and heard evidence submitted by
October 4, 2016, the arbitrator issued an Opinion and Default
Award. See Award at 1. Based on the
"substantial and credible evidence" petitioners had
presented, the arbitrator found that Pulco was bound by the
Agreement effective October 17, 2013, and had failed to
permit petitioners' auditors to examine the corporate
books and records for the period between October 17, 2013 and
an unspecified "Date." Id. at 2. The
arbitrator awarded a principal amount of $1, 278, 189.07-the
auditors' estimated amount of delinquent
contributions-plus interest at the rate of 5.5% to accrue
from the date of the Award, liquidated damages, court costs,
attorneys' fees, and arbitrator's fees, for a total
of $1, 646, 491.75, excluding post-award interest.
Id. at 3. To date, Pulco has not paid any portion of
the Award. Petition ¶ 22.
The Petition to Confirm the Award
February 14, 2017, petitioners filed the instant Petition to
confirm the Award. Dkt. 1. Petitioners seek a judgment
confirming the Award; a sum of $1, 646, 491.75; interest on
the $1, 278, 189.07 in delinquent contributions; liquidated
damages; and attorneys' fees and costs incurred in this
action. Petition ¶¶ (1)-(4).
February 22, 2017, Pulco was served. Dkt. 7. On May 4, 2017,
petitioners filed a letter asking the Court to treat the
petition as a motion to confirm the Award and be deemed
unopposed. Dkt. 8. On October 31, 2017, this Court granted
the request to construe the petition as a motion to confirm
the Award and directed Pulco to file a response. See
November 3, 2017, this Court issued an order seeking
supplemental submissions clarifying the record on a discrete
point. Dkt. 11. The Court noted that "the record before
the Court does not disclose the period during which
respondent failed to make fringe-benefit payments."
Id. at 1, The Court also noted that the Award
unhelpfully described the delinquency period as
"10/17/2013 through Date." Id.
Accordingly, the Court directed petitioners to file a
supplemental brief and supporting evidence, "which [was]
to set out and substantiate the time period and damage