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,
DV I, LLC, Respondents.
OPINION & ORDER
A. ENGELMAYER UNITED STATES DISTRICT JUDGE.
September 27, 2017, petitioners commenced this action
pursuant to § 301 of the Labor Management Relations Act
of 1947 ("LMRA"), 29 U.S.C. § 185, to confirm
an arbitration award (the "Award") issued against
respondent DV I, LLC ("DV I"), Dkt. 1
("Pet."). Petitioners are 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, Trustees of the
New York City Carpenters Relief and Charity Fund, and the New
York City and Vicinity Carpenters Labor-Management
Corporation (collectively, the "Funds"); and the
New York City District Council of Carpenters (the
"Union"). Pet. ¶¶ 4-7.
November 27, 2017, the Court granted petitioners' request
to construe their petition as a motion for summary judgment,
and directed DV I to file any opposition by December 1, 2017.
Dkt. 10. To date, DV I has neither appeared nor responded,
despite being properly served. For the reasons that follow,
the Court grants petitioners' motion for summary
the four groups of petitioners: First, the Trustees of the
New York City District Council of Carpenters Pension Fund,
Welfare Fund, Annuity Fund, Apprenticeship, Journeyman
Retraining, Educational and Industry Fund 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")]." Pet. ¶ 4. These trustees are
"fiduciaries of the  funds within the meaning of
section 3(21) of ERISA, 29 U.S.C. § 1002(21)."
Id. Second, the Trustees of the New York City
District Council of Carpenters Relief and Charity Fund are
trustees of a charitable organization established under
§ 501(c)(3) of the Internal Revenue Code, 26 U.S.C.
§ 501(c)(3). Id. ¶ 5. Third, the New York
City and Vicinity Carpenters Labor-Management Corporation is
a non-profit corporation. Id. ¶ 6. Fourth and
finally, the Union is a "labor organization that
represents employees in an industry affecting commerce within
the meaning of section 501 of the LMRA, 29 U.S.C. § 142,
and is the certified bargaining representative for certain
employees of [DV I]." Id. ¶ 7. All
petitioners are based in New York, New York. Id.
the respondent: DV I is a Michigan limited liability company.
Id. ¶ 8. At all relevant times, it was an
employer within the meaning of § 3(5) of ERISA, 29
U.S.C. § 1002(5), and was an employer in an industry
affecting commerce within the meaning of § 501 of the
LMRA, 29 U.S.C. § 142. Id
Collective Bargaining Agreements
13, 2014, DV I executed a Letter of Assent agreeing to be
bound by a project labor agreement (the "PLA")
covering construction work on a project in the Bronx.
Id. ¶ 9. The PLA bound DV I to the collective
bargaining agreement between the Union and the Building
Contractors Association, Inc. (the "Association
CBA"). Id. ¶ 10; see Id. Ex. A,
art. 2 § 4 & Schedule A. The PLA and Association CBA
required DV I to remit contributions to the Funds for every
hour worked by its employees on the construction project.
Id. ¶ 13.
21, 2015, DV I entered into an Independent Building
Construction Agreement (the "CBA") with the Union.
Id. ¶ 11; see Id. Ex C; id.
Ex. D. The same day, DV I also executed an Extension &
Compliance Agreement (the "CBA Extension"),
effective July 1, 2015, which extended the terms of the CBA
to the present. Id. ¶ 12; see Id. Ex.
E. The CBA requires DV I to remit contributions to the Funds
for every hour worked by its employees within the trade and
geographical jurisdiction of the Union. Id. ¶
ensure compliance with these contribution requirements, the
CBAs require DV I to furnish its books and payroll records
when requested by the Funds for the purpose of conducting an
audit. Id. ¶ 15. To that end, the Association
CBA, the CBA, and the PLA bind DV I to the Funds'
Collection Policy, which states that "[i]n the event
that an employer refuses to permit a payroll review and/or
audit upon request... the Fund Office shall determine the
estimated amount of the employer's delinquent
contributions based on the assumption that the employer's
weekly hours subject to contributions for each week of the
requested audit period are the highest number of average
hours reported per week for any period of four consecutive
weeks during the audit period." Id.
¶¶ 16-17; id. Ex. F, § IV(12).
CBAs provide further that in the event of a "dispute or
disagreement" between the parties "concerning any
claim arising from payments to the Fund of principal and/or
interest which is allegedly due, either party may seek
arbitration of the dispute before the impartial
arbitrator." Id. ¶ 18; id. Ex. B,
art. XVI § 7; Ex. C, art. XV § 7. The
arbitrator's award "shall be final and binding upon
the parties ... and shall be wholly enforceable in any court
of competent jurisdiction." Id. Ex. B, art. XVI
§ 7; Ex. C, art. XII § 2. The CBAs further provide
that, in the event a court renders judgment in favor of the
Funds, the employer "shall pay to [the Funds], in
accordance with the judgment of the court, " the amount
of the unpaid contributions plus interest, plus an amount
equal to the greater of the interest charges or liquidated
damages of 20% of the amount of the unpaid contributions,
reasonable attorney's fees and costs, and other relief
the court deems appropriate. Id. ¶ 20.
Underlying Dispute and Arbitration Award
to the CBAs, petitioners requested an audit of the period
covering June 16, 2014 through the present. Id.
¶ 20. DV I failed to permit the audit. Id.
April 20, 2017, petitioners initiated arbitration before the
designated arbitrator, Roger E. Maher. Id. ¶
21; see Id. Ex. H at 1 (the "Award"). On
April 27, 2017, the arbitrator sent DV I notice of a July 14,
2017 hearing date by regular and certified mail. Id.
¶ 21; see Id. Ex. G, On July 14, 2017, Maher
presided over a hearing. Id. ¶ 22; Award at
1-2. Petitioners' counsel appeared, but DV I's
counsel failed to appear. Award at 2. DV I also did not
request an adjournment or extension ...