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Trustees of The New York City District Council of Carpenters Pension Fund v. DV I, LLC

United States District Court, S.D. New York

January 18, 2018

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,
v.
DV I, LLC, Respondents.

          OPINION & ORDER

          PAUL A. ENGELMAYER UNITED STATES DISTRICT JUDGE.

         On 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.

         On 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 judgment.

         I. Background[1]

         A. The Parties

         As for 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. ¶¶ 4-7.

         As for 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

         B. The Collective Bargaining Agreements

         On June 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.

         On July 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. ¶ 14.

         To 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).

         The 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.

         C. The Underlying Dispute and Arbitration Award

         Pursuant 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.

         On 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. ΒΆ 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 ...


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