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 the NEW YORK CITY DISTRICT COUNCIL OF CARPENTERS, Petitioners,
STOP & WORK CONSTRUCTION, INC., Respondent.
MEMORANDUM OPINION AND ORDER
G. KOELTL, DISTRICT JUDGE
petitioners seek to confirm an arbitration award pursuant to
section 301 of the Labor Management Relations Act of 1947
("LMRA"), as amended, 29 U.S.C. § 185. The
petitioners are employer and employee trustees of
multiemployer labor-management trust funds organized and
operated in accordance with the Employee Retirement Income
Security Act of 1974 ("ERISA"), as amended, 29
U.S.C. §§ 1001 et seq. (the "ERISA
Funds"); the trustees of a charitable organization
established under section 501(c)(3) of the Internal Revenue
Code, 26 U.S.C. § 501(c)(3) (the "Charity
Fund"); a New York not-for-profit corporation; and a
labor union (the "Union"), which is the certified
bargaining representative for certain employees of the
respondent. The respondent, Stop & Work Construction,
Inc., is a New York business corporation.
underlying dispute arose out of the petitioners' effort
to collect contributions owed to the petitioners by the
respondent under an Independent Building Construction
Agreement (the "Agreement").
about March 14, 2014, the respondent executed the Agreement.
On or about June 5, 2015, the respondent executed an
Extension & Compliance Agreement (the "Agreement
Extension"), extending the terms of the Agreement. The
Agreement requires the respondent to remit contributions to
the ERISA Funds for work done by the respondent's
employees within the trade and geographical jurisdiction of
the Agreement. Pursuant to the Agreement, the parties agreed
to submit any dispute concerning the Agreement to arbitration
before an impartial arbitrator.
auditing the respondent's books and records, the
petitioners determined that the respondent had not remitted
all contributions owed to the petitioners under the
Agreement, and the petitioners initiated an arbitration
pursuant to the procedures set forth in the Agreement.
arbitrator, Roger E. Maher, held a hearing on June 8, 2017,
where the petitioners were represented by counsel and the
respondent's principal, Johnston Joseph, appeared on
behalf of the respondent. On June 10, 2017, Arbitrator Maher
issued a written Opinion and Award, finding that the
respondent had violated the Agreement. The arbitrator awarded
the petitioners a total of $54, 129.81, consisting of
principal contributions of $35, 765.62; interest of $5,
368.05; liquidated damages of $7, 153.12; pre-award interest
of $5, 368.05; promotional funds of $70.70; court costs of
$400; attorney's fees of $1, 500; arbitrator's fee of
$500; and audit costs of $3, 251.25; plus interest from the
date of the award at the annual rate of 5.75%. The
respondents have not paid any portion of the award.
petitioners seek (i) confirmation of the arbitration award;
(ii) judgment in favor of the petitioners against the
respondent for $54, 129.81; and (iii) judgment in favor of
the petitioners for $795 in attorney's fees and $75 in
costs incurred during this action, the entire amount of
judgment accruing post-judgment interest at the rate provided
under 28 U.S.C. § 1961(a).
district court's role in reviewing an arbitration award
is extremely limited. United Paperworkers Int'1
Union, AFL-CIO v. Misco, Inc., 484 U.S. 29 (1987);
United Steelworkers v. Enterprise Wheel & Car
Corp., 363 U.S. 593 (1960). The Supreme Court has
explained that district courts "are not authorized to
reconsider the merits of an award even though the parties may
allege that the award rests on errors of fact or on
misinterpretation of the contract." Misco, 484
U.S. at 36. The Court instructed that "[a]s long as the
arbitrator's award Mraws its essence from the collective
bargaining agreement, ' and is not merely 'his own
brand of industrial justice, ' the award is
legitimate." Id. (quoting United
Steelworkers, 363 U.S. at 596). Accordingly, an
arbitration award is to be confirmed if there is even a
"barely colorable justification" for the decision.
United States Steel and Carnegie Pension Fund v.
Dickinson, 753 F.2d 250, 252 (2d Cir. 1985); see
also Bevona v. EBM Dev. Co., No. 98-cv-6207 (JGK), 1999
WL 494116, at *2 (S.D.N.Y. July 13, 1999).
being served with the petitioners' petition, the
respondent has not responded. After the respondent's
original time to oppose the petition had lapsed, the Court
extended the respondent's time to respond until November
3, 2017. Dkt. No. 11. The Court stated that if the respondent
did not respond by that date, that the Court would decide the
petition based on the papers that had been submitted by the
petitioner. Id. The responded did not respond.
the Second Circuit Court of Appeals has explained that a
default judgment is generally inappropriate in a proceeding
to confirm or vacate an arbitration award because "[a]
motion to confirm or vacate an [arbitration] award is
generally accompanied by a record, such as an agreement to
arbitrate and the arbitration award decision itself. . . .
[T]he petition and accompanying record should [be] treated as
akin to a motion for summary judgment based on the
movant's submissions." D.H. Blair & Co. v.
Gottdiener, 462 F.3d 95, 109 (2d Cir. 2006).
standard for granting summary judgment is well established.
"The [C]ourt shall grant summary judgment if the movant
shows that there is no genuine dispute .as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Darnell v.
Pineiro, 849 F.3d 17, 22 (2d Cir. 2017) . The
substantive law governing the case will identify those facts
that are material and "[o]nly disputes over facts that
might affect the outcome of the suit under the governing law
will properly preclude the entry of summary judgment."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
action, Arbitrator Maher's award was not "his own
brand of industrial justice." Misco, 484 U.S. at 36
(quoting United Steelworkers, 363 U.S. at 596).
Rather, Arbitrator Maher found that the uncontroverted
testimony established that the respondent was bound by the
Agreement, and that the evidence showed that the respondent
had violated the Agreement and owed the petitioner $54,
129.81 plus post-award interest at a rate of 5.75%. Pet., Ex.
E. Arbitrator Maher found the respondent's claim,
"made without any credible evidence, that he
'Doesn't know how his Company owes all this
delinquent fringe benefits, given he had only three small
jobs' to be ...