United States District Court, E.D. New York
EMPIRE STATE CARPENTERS WELFARE, ANNUITY AND APPRENTICE TRAINING FUNDS, SOUTH CENTRAL DISTRICT COUNCIL OF CARPENTERS DEFINED BENEFIT FUND, AND THE EMPIRE STATE REGIONAL COUNCIL OF CARPENTERS, Plaintiffs,
CONWAY CONSTRUCTION OF ITHACA, INC., Defendant.
the Plaintiffs Virginia & Ambinder, LLP By: Martin C.
Fojas, Esq. Michele A. Moreno, Esq.
the Defendant Coughlin & Gerhart LLP By: Joseph J.
Steflik, Jr., Esq.
MEMORANDUM AND ORDER
R. HURLEY, U.S.D.J.
State Carpenters Welfare Annuity and Apprentice Training
Funds, by Patrick Morin and Joseph Olivieri as Trustees, and
South Central District Council of Carpenters Defined Benefit
Fund, by David F. Haines and Frank Jones, as trustees (the
"Funds"), and the Empire State Regional Council of
Carpenters, by Patrick Morin, Business Manager (the
"Union") (collectively the "Plaintiffs"
or "Empire") filed the present action against
defendant Conway Construction of Ithaca, Inc.
("Defendant" or "Conway Construction") to
recover unpaid fringe benefit contributions pursuant to a
collective bargaining agreement ("CBA"). Both
parties thereafter moved for summary judgment pursuant to
Federal Rule of Civil Procedure 56.
Orders dated March 15, 2012 and September 14, 2015, I denied
Conway Construction's motion for summary judgment,
granted Empire's application seeking the same relief, and
directed entry of judgment awarding Empire $202, 958.75 in
damages stemming from Conway Construction's unpaid
contributions to Empire's employee benefit funds.
Defendant appealed to the Second Circuit Court of Appeals
which, by summary order issued on September 28, 2016, vacated
that judgment and remanded the matter for further proceedings
consistent with its opinion. As explained by the Circuit:
The District Court mistakenly concluded that Conway
"points to no conduct on its behalf pre-April 2003
negating an intent to be bound by the 2001 Agreement, other
than the fact that Conway consistently refused to sign the
CBA." To the contrary, during discovery John Conway
testified that "[a]s long as the funds were available
from, let's say, the economy . . . I told Empire's
union representatives' I'd stay as long as I could.
And at that time when I could no longer support their people
and cost, I'd have to terminate before I lost my
company." A reasonable juror could construe this
testimony to mean that Conway never manifested an intent to
be bound by the 2001 CBA and, instead, informed the
plaintiffs that he sought merely to compensate union
employees at a certain rate until it was longer economically
feasible to do so.
Empire State Carpenters Welfare v. Conway Construction
of Ithaca, Inc., 661 Fed.Appx. 97, 98-99 (2d
Cir. 2016)(Summary Order).
remand, a non-jury trial took place before me on August 21,
22, and November 20, 2017. Empire presented two witnesses,
viz. John Conway ("Conway"), the vice-president of
Conway Construction, and Scott Colton ("Colton"), a
business representative for the Northeast Counsel of
Carpenters. Plaintiff also introduced, pursuant to a
stipulation, the deposition of Mick Pavlick
("Pavlick") a business agent of the Union. Conway
Construction presented Conway as its witness, together with
an affidavit of G. David Weaver
purpose of this decision is to provide my Findings of Fact
and Conclusions of Law as required by Federal Rule of Civil
Procedure 52, with the core issue being "whether
Conway's conduct manifested an intent to be bound to the
terms of the 2001 [to 2006] CBA." Id. at 99.
of format, a brief, largely undisputed overview of the early
interaction between the Plaintiffs and Defendant will be
provided, followed by the contentions of the parties and the
applicable law. Against that backdrop, detailed findings of
fact on contested issues will be provided along with
concomitant conclusions of law.
I - Undisputed Facts
Conway Construction, which does "[m]ostly carpentry work
[, ] . . . demolition [and] renovation[s], " commenced
operations in 1996. (Tr. at 21:23-25; id. at
November 1996, Conway Construction signed a collective
bargaining agreement with the Union, which had an effective
date of June 1, 1995 and expired on April 30, 1998 (the
"1995 CBA"). (Joint Pre-Trial Order
("PTO"), Art. VII, Stip. of Law and Fact, ¶
reasons nondecipherable from the trial record, the parties
continued to abide by the terms of the 1995 CBA until
mid-2001, i.e. beyond its April 30, 1998 scheduled expiration
Conway Construction was not a member of either the
Construction Trade Employers of South Central New York Inc.
("CTE") or the Construction Industry Employees
Association of South Central New York ("CIE") and
did not designate its ...