Empire State Carpenters Welfare, Annuity and Apprentice Training Funds et al v. Conway Construction of Ithaca, Inc.
ORDER re 34 : For the reasons set forth in the attached Memorandum & Order, plaintiffs' motion for summary judgment is granted and defendant's cross-motion is denied. It appears that the only issue remaining is the amount of damages and other relief due to plaintiffs. The parties are directed to confer and submit a briefing schedule on this issue within 45 days of the date of this Order. Ordered by Senior Judge Denis R. Hurley on 3/15/2012. (Monaco, Laura)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
EMPIRE 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, and
the EMPIRE STATE REGIONAL COUNCIL OF
CARPENTERS, by Patrick Morin, Business Manager,
MEMORANDUM AND ORDER
07-CV-2259 (DRH) (ETB)
CONWAY CONSTRUCTION OF ITHACA, INC.,
For the Plaintiffs:
LEVY RATNER, P.C.
80 Eighth Avenue, Floor 8
New York, New York 10011
Owen M. Rumelt, Esq.
For the Defendant:
COUGHLIN & GERHART, LLP
19 Chenango Street
P.O. Box 2039
Binghamton, New York 13902-2039
Joseph J. Steflik, Jr., Esq.
HURLEY, Senior District Judge:
Plaintiffs Empire 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 (collectively, the
“Funds”), and the Empire State Regional Council of Carpenters, by Patrick Morin, Business
Manager (the “Union”) filed the present action against defendant Conway Construction of Ithaca,
Inc. (“Conway”) to recover unpaid fringe benefit contributions pursuant to a collective
bargaining agreement. Both parties previously moved for summary judgment pursuant to Federal
Rule of Civil Procedure 56. By Memorandum & Order dated February 19, 2010 (the “February
2010 Decision”), the Court found that although Conway had never signed the collective
bargaining agreement at issue, it was nonetheless bound to that agreement by virtue of its
conduct, which manifested an intent to adopt the agreement. Because, however, it was unclear
from the record before the Court whether Conway effectively terminated its obligations under the
collective bargaining agreement, and because the parties had not briefed the issue, the Court
denied both motions for summary judgment and gave the parties an opportunity to re-file.
Presently before the Court are plaintiffs’ and defendant’s second motions for summary
judgment. For the reasons set forth below, plaintiffs’ motion is granted and defendant’s motion
The material facts, drawn from the Complaint, the parties’ Local 56.1 Statements and
evidentiary submissions, and the February 2010 Decision, are undisputed unless otherwise noted.
Conway was incorporated in 1996 and engages in the construction business. Conway
usually employs between three and six individuals. In November 1996, Conway signed a
collective bargaining agreement with the Union (the “1996 CBA”), which had an effective date
of June 1, 1995 and expired on April 30, 1998. John Conway, the Vice President of Conway,
had several meetings with Union representatives between 1998 (when the 1996 CBA expired)
and 2003. During those meetings, he agreed to pay his employees union wages and benefits but
refused to sign another written agreement.
In 2001, the Union entered into a collective bargaining agreement (the “2001 CBA”) with
the Construction Trades Employers of South Central New York, Inc. (“CTE”), a multi-employer
bargaining association. The 2001 CBA was effective from May 1, 2001 through April 30, 2006.
It is undisputed that Conway never became a signatory to the 2001 CBA. Nevertheless, between
May 1, 2001 and April 30, 2003, Conway paid its employees hourly wages and fringe benefit
contributions at the rates set forth in the 2001 CBA. John Conway testified at his deposition that
although he refused to sign the 2001 Agreement, he paid wages and benefits to his carpenter
employees in accordance with that agreement for “[a]s long as [he] could.” (Feb. 2010 Decision
at 3 (internal quotation marks omitted, alterations in the original).) In addition, when Conway
submitted fringe benefit contributions to the Funds on behalf of its carpenter employees, he also
submitted remittance forms that provided: “Any signatory to this form is hereby bound to any
and all applicable collective bargaining agreement with [the Union] concerning wages, hours and
working conditions for the applicable work . . . .” (Id. at 3-4.)
On January 31, 2003, John Conway wrote a letter to CTE (the “January 31, 2003 Letter”)
providing as follows:
Due to the increasing costs of staying in business in New York
State, we will be making a decision at the end of the 1st quarter
whether or not we can maintain union rates.
We have been trying to keep up with the rising wages and workers’
compensation rates, but we’ve been losing customers over the past
few years. Currently there are only a few remaining in the Ithaca
area willing to pay these union rates.
This decision will be based on the amount of union work in the
spring. At that time I will make a final decision as to whether or
not we remain a union shop.
(Aff. of John Conway, dated July 21, 2011 (“Conway Aff.”), Ex. B.) A copy of this letter was
sent to the Union.
Thereafter, on April 8, 2003, John Conway notified the CTE via letter (the “April 8, 2003
Letter”) that: “Per our letter of January 31, 2003, we have reviewed the first quarter. We will no
longer be a union shop effective May 1, 2003.” (Id., Ex. C.) A copy of this letter was also sent
to the Union. After April 1, 2003, Conway ceased making fringe benefit contributions to the
Funds on behalf of its carpenter employees. (Feb. 2010 Decision at 4.)
At his deposition, John Conway testified that although he never signed the 2001 CBA, he
sent the January and April 2003 letters pursuant to the termination procedure set forth in Article
XV(2) of the 2001 CBA, (id.), which provides as follows:
This Agreement shall remain in full force and effect through April
30, 2006 unless written notice of intent to seek change or to amend
the provisions of this Agreement shall be given in either case by
the parties desiring such change or amendment at least 90 days
prior to the expiration date.
(Decl. of David F. Haines, dated June 21, 2011, (“Haines June 2011 Decl.”) Ex. A at 19.)
Conway testified that he followed this procedure by sending a letter in January 2003 and then
confirming his termination with the Union 90 days later in April 2003. (Feb. 2010 Decision at
5.) When asked why he sent these notices, Conway responded that he had been told at a meeting
by Union representatives that he “was grandfathered in forever and that they would tell [him]
when [he] could stop being a contractor – [he] would be out of the union.” (Id. (internal
quotation marks omitted, alterations in the original).)
In February 2004, the Funds audited Conway’s books and records for the period between
January 1, 2000 and December 31, 2003. As part of the audit, Conway was required to make
available certain requested financial books and records. Conway complied with all requests for
the production of documents. (Pls.’ 56.1 ¶ 16.) According to Conway, he only agreed to the
audit “because of the legal costs [it would take] to oppose the audit.” (Conway Aff. ¶ 17.) The
audit uncovered no contribution deficiencies for the period between January 1, 2000 and
December 31, 2003. (Decl. of Joseph W. McCarthy, dated June 20, 2011 (“McCarthy Decl.”),
Ex. A at 1.) In May 2007, however, Conway refused to cooperate with the Funds’ second audit
for the period between January 1, 2004 and December 31, 2006. (Pls.’ 56.1 ¶ 17.) Specifically,
Conway refused to allow the Funds’ auditor to examine any of Conway’s books and records for
the period after April 30, 2003.
As a result, plaintiffs commenced the instant action seeking to recover damages against
Conway for unpaid fringe benefit contributions pursuant to the 2001 CBA from May 1, 2003
through April 30, 2006. Plaintiffs also seek an Order compelling Conway to allow the Funds to
conduct an audit of Conway’s books and records to determine its compliance with the 2001 CBA
through April 30, 2006. Following the commencement of this action, in February 2008, Conway
agreed to comply with the auditor’s request for access to the financial books and records for the
period between January 1, 2004 and December 31, 2006. (Id.) According to the audit, defendant
owes $128,931.66 in contributions for the period between January 1, 2004 and December 31,
2006. (McCarthy Decl., Ex. B at 1.)
February 2010 Decision
As set forth above, both plaintiffs and defendant previously moved for summary
judgment. The Court found that, as a matter of law, Conway adopted the 2001 CBA by engaging
in the following conduct: (1) contributing benefits and paying wages in accordance with the rates
set forth in the 2001 CBA; (2) submitting numerous remittance forms to the Funds, each of
which contained a clause stating that Conway agreed to be bound by the terms of the theneffective collective bargaining agreement; (3) agreeing to let the Funds audit its books and
records in compliance with the 2001 CBA; and (4) utilizing the agreement’s termination
procedure in an attempt to terminate its obligations under the 2001 CBA. (Feb. 2010 Decision at
The Court’s finding that Conway’s conduct manifested an intent to adopt the 2001 CBA
did not end the inquiry, however, because neither party addressed the legal ramifications of
Conway’s attempt – via submission of the January 31, 2003 Letter and April 8, 2003 Letter – to
unilaterally terminate the 2001 CBA. The Court found that the relevant contractual provision,
Article XV(2) of the 2001 CBA, “seems to lend itself to more than one interpretation.” (Feb.
2010 Decision at 15.) The Court explained:
For instance, as Defendant suggests, it may be that either party has the
right to terminate its obligations under the agreement prior to the
CBA’s expiration date as long as that party provides written notice of
intent to do so “at least 90 days prior to [April 30, 2006].” (Id. Ex. 2
at 19.) Or perhaps the provision does not cover termination and only
applies to “change[s]” and “amend[ments]” to the CBA.
Alternatively, the provision conceivably could be construed to permit
either party to send written notice of its intent to terminate the CBA
but only as of the expiration date. Absent briefing by the parties,
which have not addressed this issue, the Court cannot determine if
Conway continued to be bound by the [2001 CBA] after April 30,
2003, the period for which Plaintiffs seek damages and an audit.
Accordingly, the parties’ motions for summary judgment are denied.
Should either party wish to file another motion for summary
judgment on this issue, they shall follow this Court’s procedure on
motion practice as set forth in the Court’s Individual Practice Rules.
(Id. at 15.) The parties have fully briefed the issue of whether Conway’s January 31, 2003 and
April 8, 2003 Letters effectively unilaterally terminated its obligations under the 2001 CBA. For
the reasons set forth infra, the Court finds the 2001 CBA did not authorize Conway to terminate
the agreement prior to its expiration, and that any interpretation to the contrary would render
Article XV(2) unenforceable as contrary to federal law.
Summary judgment pursuant to Federal Rule of Civil Procedure 56 is only appropriate
where admissible evidence in the form of affidavits, deposition transcripts, or other
documentation demonstrates the absence of a genuine issue of material fact, and one party’s
entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d
712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are
material; “only 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 (1986). No genuinely triable factual issue exists when the moving party
demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all
inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could
find in the non-movant’s favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir.
1996) (citing Fed. R. Civ. P. 56(c)).
To defeat a summary judgment motion properly supported by affidavits, depositions, or
other documentation, the non-movant must offer similar materials setting forth specific facts that
show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002,
1011 (2d Cir. 1996). The non-movant must present more than a “scintilla of evidence,”
Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting
Anderson, 477 U.S. at 252), or “some metaphysical doubt as to the material facts,” Aslanidis v.
U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586-87 (1986)), and cannot rely on the allegations in his or her
pleadings, conclusory statements, or on “mere assertions that affidavits supporting the motion are
not credible.” Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations
The district court, in considering a summary judgment motion, must also be “mindful of
the underlying standards and burdens of proof,” Pickett v. RTS Helicopter, 128 F.3d 925, 928
(5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the
respective parties will bear at trial guide district courts in their determination of summary
judgment motions. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the
non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party’s
burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an
essential element of the non-movant’s claim. Id. at 210-11. Where a movant without the
underlying burden of proof offers evidence that the non-movant has failed to establish her claim,
the burden shifts to the non-movant to offer “persuasive evidence that [her] claim is not
‘implausible.’ ” Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587).
Summary Judgment May be Appropriate Even When a Contractual Provision is
The Court notes, as an initial matter, that its prior holding regarding the ambiguity of
Article XV does not automatically preclude it from awarding summary judgment here. Summary
judgment is appropriate when there are no genuine issues of material fact, “a situation that
obtains not only when [contractual] language is unambiguous, but also when the language is
ambiguous and there is relevant extrinsic evidence, but the extrinsic evidence creates no genuine
issue of material fact and permits interpretation of the agreement as a matter of law.” Shepley v.
New Coleman Holdings Inc., 174 F.3d 65, 72 n.5 (2d Cir. 1999) (internal quotation marks
omitted); see also Lawrence v. Cohn, 197 F. Supp. 2d 16, 20 (S.D.N.Y. 2002) (same); Plumbers,
Pipefitters & Apprentices Local Union No. 112 Pension, Health & Educ. & Apprenticeship Plans
v. Mauro’s Plumbing, Heating & Fire Suppression Inc., 84 F. Supp. 2d 344, 355 (N.D.N.Y.
2000) (“Ambiguity itself is insufficient to create a genuine issue of material fact and summary
judgment is appropriate if the ambiguity coupled with the extrinsic evidence does not create a
genuine issue of material fact.”).
On the other hand, if, however, the extrinsic evidence proffered by the parties does not
resolve the contractual ambiguity, summary judgment is inappropriate. See Stern v. Cigna Grp.
Ins., 2008 WL 4950067, at *1 (2d Cir. Nov. 20, 2008) (finding summary judgment
“inappropriate” when there was a “genuine issue of material fact as to whether extrinsic evidence
could yield a conclusive answer as to the parties’ intent”); Mauro’s Plumbing, 84 F. Supp. 2d at
352 (“[I]f the contract language is ambiguous and extrinsic evidence creates a genuine issue of
material fact, summary judgment is inappropriate.”).
Principles Underlying the Court’s Interpretation of the 2001 CBA
When interpreting a collective bargaining agreement, “traditional rules of contract
interpretation apply as long as they are consistent with federal labor policies.” Aeronautical
Indus. Dist. Lodge 91 of the Int’l Ass’n of Machinists & Aerospace Workers v. United Techs.
Corp., 230 F.3d 569, 576 (2d Cir. 2000). The Court must read the 2001 CBA “to give effect to
all of its provisions and to render the provisions consistent with each other.” Local 205, Cmty. &
Soc. Agency Employees’ Union, Dist. Council 1707 AFSCME v. Day Care Council of N.Y., Inc.,
992 F. Supp. 388, 392 (S.D.N.Y. 1998) (citing Mastrobuono v. Shearson Lehman Hutton, Inc.,
514 U.S. 52, 63 (1995)). When a provision in a collective bargaining agreement is ambiguous,
the court may “look to extrinsic factors – such as bargaining history, past practices, and other
provisions in the CBA – to interpret the language in question.” United Techs. Corp., 230 F.3d at
Defendant asserts that plaintiffs drafted the 2001 CBA and, as such, any ambiguity
therein must be construed against them. (See Def.’s Mem. at 9.) Defendant proffers no
evidence, however, that Article XV(2) of the 2001 CBA was drafted by the Union. By contrast,
plaintiffs have set forth undisputed evidence that CTE provided the language of Article XV(2) of
the 2001 CBA. (See Decl. of David F. Haines, dated Aug. 10, 2011 (“Haines Aug. 2011 Decl.”)
The 2001 CBA Cannot be Interpreted to Permit Conway to Unilaterally Terminate the
Agreement Prior to the Agreement’s Expiration
The Language of the 2001 CBA
Article XV(2) of the 2001 CBA provides:
This Agreement shall remain in full force and effect through April 30,
2006 unless written notice of intent to seek change or to amend the
provisions of this Agreement shall be given in either case by the
parties desiring such change or amendment at least 90 days prior to
the expiration date.
(Haines June 2011 Decl., Ex. A at 19.) This provision on its face refers only to the parties’ rights
to “change or to amend” the agreement – there is no explicit reference to either party’s right to
“terminate” the agreement.
As pointed out by plaintiffs, other portions of the 2001 CBA indicate – both explicitly
and implicitly – that the negotiating parties intended the agreement to be effective for a term of
not less than five years. Several provisions refer to the “expiration date” of April 30, 2006 (id. at
Cover Page, 19) or the “term” or “life” of the agreement (id. at 19). The agreement also contains
a five-year schedule of wages and benefits contributions. (Id. at 10-12.) Other provisions appear
to specifically foreclose either party from unilaterally terminating the agreement. For example,
Article XV(3) states that the agreement “may be opened at any time by mutual agreement of the
signatory parties.” (Id. at 19 (emphases added); see also id. (Article XV(4), which provides that
an employer with an “duly designated bargaining agency” will be bound by the agreement
“during the life” of the agreement, even if the employer terminates designation of the bargaining
agency “during the life of this Agreement”).)
Conway has submitted an affidavit stating that he understood, based upon conversations
with G. David Weaver, the lead negotiator for CTE, as well as unnamed Union representatives
“that Article XV(2) allowed me to withdraw from the collective bargaining agreement at any
time during the term of the agreement upon proper notice.” (Conway Aff. ¶ 7.) Aside from
failing to provide any specifics as to when such conversations occurred and which Union
representatives provided him with such information, Conway’s present affidavit appears to
conflict with his prior affidavits submitted to this Court. Specifically, Conway previously
attested that he refused to sign the 2001 CBA in the first instance because the agreement “would
have run from May 1, 2001 through April 30, 2006,” and he would have “never agreed to a
collective bargaining agreement which would last until April 30, 2006.” (Pls.’ 56.1 ¶ 3 (internal
quotation marks omitted).) Given this conflict, and given the vague nature of the statements set
forth in the most recent Conway Affidavit, the Court finds that it is insufficient to raise a genuine
issue of fact for the jury.
Affidavits of the Negotiators of the 2001 CBA
Plaintiffs have provided an affidavit of David F. Haines, a Regional Director of the Union
who was involved in the negotiations of both the 2001 CBA and the subsequent collective
bargaining agreement between the Union and CTE. In his affidavit, Haines states that the
Union’s negotiators “did not intend Article XV.2 . . . to permit a party bound by the Agreement,
under any circumstance, to unilaterally effect any termination, modification or amendment of the
2001 Agreement.” (Haines June 21, 2011 Decl. ¶ 6.) Haines further attests that CTE negotiators
never indicated that they understood Article XV(2) to permit such unilateral termination of the
agreement. (Id. ¶ 7.) According to Haines, when the Union and CTE negotiated a new collective
bargaining agreement in 2006, they agreed upon revised wording for Article XV(2),1 which
The revised Article XV(2) in the collective bargaining agreement between CTE
and the Union, which was effective May 1, 2006 through April 30, 2011, reads as follows:
“accurately reflect[ed] [their] joint understanding” that the version of Article XV(2) in the 2001
CBA “was intended as a mechanism to request negotiations of a new agreement prior to the thencurrent agreement’s expiration date.” (Id. ¶ 13.) Haines further states that no other employer
bound by the 2001 CBA ever attempted to unilaterally terminate the agreement pursuant to
Article XV(2). (Id. ¶ 10.)
These assertions, however, are directly contradicted by an affidavit submitted by G.
David Weaver, the lead negotiator for CTE in connection with both the 2001 CBA and the
subsequent collective bargaining agreement. According to Weaver, “Article XV(2) of the [2001
CBA] continued the prior practice of allowing signatory contractors (including contractors who
had designated their bargaining rights to the CTE) to withdraw at any time upon providing notice
as long as such notice was given at least ninety (90) days prior to the expiration date.” (Aff. of
G. David Weaver, dated July 22, 2011 (“Weaver Aff.”) ¶ 4.) Weaver attests that during
negotiations for the subsequent collective bargaining agreement, the Union “demanded
modification of Article XV(2) to provide an ‘evergreen clause’ with notice within a sixty (60) to
ninety (90) day window period.” (Id. ¶ 7.) According to Weaver, this represented “a major
change” from the 2001 CBA. (Id.)
Plaintiffs assert that defendant’s interpretation of the 2001 CBA, i.e., that an employer
This Agreement shall remain in full force and effect through April 30,
2011 and continue from year to year thereafter, unless written notice
of intent to seek change or to amend the provisions of this Agreement
shall be given in either case by the parties desiring such change or
amendment 60-90 days prior to expiration date, or any subsequent
(Haines June 2011 Decl., Ex. B at 17.)
could unilaterally withdraw from the 2001 CBA at any time prior to the expiration of the
agreement, conflicts with well-established federal labor law. Specifically, plaintiffs cite to the
decision of the National Labor Relations Board (“N.L.R.B.”) in John Deklewa & Sons, Inc., 282
N.L.R.B. 1375 (1987), enforced sub. nom. Int’l Ass’n of Bridge, Structural & Ornamental Iron
Workers, Local 3 v. N.L.R.B., 843 F.2d 770 (3d Cir. 1988), cert. denied, 488 U.S. 889 (1988). At
issue in Deklewa were “pre-hire” agreements, which are collective bargaining agreements entered
into by an employer before it hires any employees. See Building & Constr. Trades Council of
Metro. Dist. v. Associated Builders & Contractors of Mass./Rhode Island, Inc., 507 U.S. 218,
230 (1993). Pre-hire agreements, like the 2001 CBA, are authorized pursuant to Section 8(f) of
the National Labor Relations Act (“NLRA”). See id. Prior to the N.L.R.B.’s decision in
Deklewa, a Section 8(f) pre-hire agreement “could be repudiated by either party at any time for
any reason.” See Sheet Metal Workers’ Int’l Ass’n v. McElroy’s Inc., 500 F.3d 1093, 1097 (10th
Cir. 2007). In Deklewa, however, the “NLRB overruled longstanding precedent and held that an
employer may not repudiate a pre-hire agreement during the term of the contract.” Benson v.
Brower’s Moving & Storage, Inc., 907 F.2d 310, 315 n.3 (2d Cir. 1990).2
The Court finds that defendant’s asserted interpretation of Article XV(2) of the 2001
CBA, which would permit the unilateral termination of the agreement by an employer at any time
prior to the agreement’s expiration, runs afoul of the rule set forth in Deklewa. As plaintiffs
While the Second Circuit has never explicitly adopted Deklewa, its citations to
that decision have been favorable and have not evidenced any disagreement with its holding. See
Mulvaney Mech., Inc. v. Sheet Metal Workers Int’l Ass’n, Local 38, 288 F.3d 491, 496 (2d Cir.
2002) (“At the conclusion of the term of the agreement, both the employer and the union can
unilaterally repudiate the § 8(f) bargaining relationship.”), vacated on other grounds, 538 U.S.
918 (2003); Benson, 907 F.2d at 315 n.3. Thus, the Court declines defendant’s invitation to
disavow the holding of Deklewa. (See Def.’s Mem. at 7.)
correctly point out, it is well-settled that “ambiguously worded contracts should not be
interpreted to render them illegal and unenforceable . . . .” N.L.R.B. v. Local 32B-32J Serv.
Employees Int’l Union, 353 F.3d 197, 202 (2d Cir. 2003) (internal quotation marks omitted).
Here, however, defendant has submitted extrinsic evidence – in the form of Weaver’s affidavit –
that the CTE and the Unions, in negotiating Article XV(2) of the 2001 CBA, intended that
provision to have the illegal effect of “continu[ing ] the prior practice of allowing signatory
contractors . . . to withdraw at any time upon providing notice . . . at least ninety (90) days prior
to the expiration date.” (Weaver Aff. ¶ 4.) The Second Circuit has recognized that where there
is extrinsic evidence suggesting that the parties intended the contractual provision at issue to be
“administered in [an] unlawful manner,” it “would be appropriate to consider that evidence when
construing the clause.” See id. “Contracts for an illegal purpose . . . are not enforceable.” Beth
Israel Med. Ctr. v. Horizon Blue Cross & Blue Shield of N.J., Inc., 448 F.3d 573, 580 (2d Cir.
2006); see also Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 83-84 (1982) (“It is also well
established . . . that a federal court has a duty to determine whether a contract violates federal law
before enforcing it.”). Where, however, only a portion of the contract is illegal, and therefore
unenforceable, “a court may nevertheless enforce the remainder of the contract.” Beth Israel
Med. Ctr., 448 F.3d at 581.
If the assertions contained in the Weaver Affidavit – i.e., that the parties intended Article
XV(2) to operate contrary to federal labor law – were determined to be true by a trier of fact, the
net effect would be that Article XV(2) of the 2001 CBA is void and unenforceable as a matter of
law. Thus, even if the case went to a jury and the jury found in favor of Conway on this issue,
Conway could not rely on Article XV(2) as justification for its attempt to unilaterally withdraw
from the 2001 CBA prior to its expiration.
Plaintiffs have produced evidence – by citing other provisions of the 2001 CBA and
pointing to extrinsic evidence regarding negotiations of both the 2001 CBA and the subsequent
collective bargaining agreement, as well as past practice under the 2001 CBA – that support its
position that Article XV(2) did not authorize any employer to unilaterally withdraw from or
terminate the 2001 CBA prior to its expiration. To the extent defendant has proffered
contradictory evidence regarding the parties’ intentions during contract negotiations, such
evidence has demonstrated only that the Union and CTE may have intended Article XV(2) to
operate in disaccord with federal labor law. Thus, even if a jury were to credit defendant’s
evidence, defendant would not be entitled to judgment as a matter of law – the Court cannot
enforce a contractual provision that is contrary to the law. Defendant cites to Article XV(2) as
the sole source of its contractual authority for unilaterally withdrawing from the 2001 CBA prior
to its expiration; if that clause was stricken as illegal and unenforceable, it is undisputed that
Conway could point to no other provision of the 2001 CBA to justify its attempted termination of
the 2001 CBA.
Accordingly, the Court finds that Conway has failed to establish that it effectively
terminated the 2001 CBA by virtue of its submission of the January 31, 2003 or April 1, 2003
Letters, and that plaintiffs are entitled to judgment as a matter of law on this issue.3
The Court rejects defendant’s assertion that any of the Union’s post-April 2003
conduct ratified Conway’s attempt to withdraw from the 2001 CBA. Defendant points to an
April 6, 2004 letter, written by Union representative Michael Pavlick, which notified Union
member Christopher Roe that “Conway Construction has failed to sign our current working
agreement” and Roe was therefore subject to disciplinary action for being “employed by a non16
For the reasons set forth above, plaintiffs’ motion for summary judgment is granted and
defendant’s cross-motion for summary judgment is denied. Given the Court’s conclusions that
defendant was bound by the 2001 CBA for its entire term, i.e., through its expiration on April 30,
2006, and that Conway could not have terminated its obligations under the 2001 CBA, it appears
that the only issue remaining is the amount of damages and other relief due to plaintiffs. The
parties are directed to confer and submit a briefing schedule on this issue within 45 days of the
date of this Order.
Dated: Central Islip, New York
March 15, 2012
Denis R. Hurley
Unites States District Judge
union contractor.” (Conway Aff., Ex. D.) To the extent that Pavlick’s isolated reference to
Conway as a “non-union contractor” in a letter that was sent to someone other than Conway has
any relevant legal impact, Conway has failed to demonstrate that Pavlick had any authority to
bind the Union. The other incidents of Union conduct cited by defendant occurred after the April
30, 2006 expiration of the 2001 CBA and are, thus, irrelevant to the question of whether the
Union acquiesced to Conway’s attempted withdrawal from the 2001 CBA.
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