Trustees of the Northeast Carpenters Health, Pension, Annuity, Apprenticeship, and Labor Management Cooperation Funds v. All State Furniture Technicians Corp.
OPINION & ORDER: SO ORDERED that the Arbitration Award is confirmed, and Petitioners are awarded a judgment against Respondent in the amount of eight thousand, two hundred and fifty-one dollars and eighty-five cents ($8,251.85). The Clerk of the Court shall enter judgment in favor of Petitioners consistent with this Opinion and Order and close this case. Ordered by Judge Sandra J. Feuerstein on 5/31/2017. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
TRUSTEES OF THE NORTHEAST
CARPENTERS HEALTH, PENSION,
ANNUITY, APPRENTICESHIP, AND
LABOR MANAGEMENT COOPERATION
OPINION AND ORDER
5/31/2017 3:02 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
-againstALL STATE FURNITURE TECHNICIANS
FEUERSTEIN, District Judge:
By way of a February 8, 2017 Petition, Petitioners Trustees of the Northeast Carpenters
Health, Pension, Annuity, Apprenticeship, and Labor Management Cooperation Funds
(“Petitioners”) commenced this action pursuant to Section 502 of the Employee Retirement Income
Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132; Section 301 of the Labor Management Relations
Act of 1947 (“LMRA”), 29 U.S.C. § 185; and Section 9 of the Federal Arbitration Act, 9 U.S.C. §
9, seeking to confirm a November 25, 2016 Findings of Audit, Collection Award and Order (the
“Arbitration Award”) rendered pursuant to a collective bargaining agreement between the Northeast
Regional Council of Carpenters (the “Union”) and Respondent All State Furniture Technicians Corp.
(“Respondent” or “All State Furniture”). See Docket Entry (“DE”) . For the reasons set forth
herein, the Arbitration Award is confirmed.
A. The Parties and Relevant Agreements
Petitioners, as successors to the Empire State Carpenters Annuity, Apprenticeship, Pension,
Welfare, and Labor Management Cooperation Funds, are the trustees of multiemployer labor1
management trust funds and a labor-management cooperation committee organized and operated in
accordance with Section 3(21) of ERISA and Section 302(c)(9) of the LMRA. See Petition to
Confirm an Arbitration Award (“Pet.”), DE , ¶¶ 4-5. Respondent is a New Jersey corporation
with a principal place of business located at 744 Lehigh Avenue, Union, New Jersey 07083. Id. at
¶ 6. At all relevant times, Respondent was an employer within the meaning of Section 3(5) of
ERISA, and was an employer in an industry affecting commerce within the meaning of Section 501
of the LMRA. Id.
All State Furniture is a member of the Association of Wall-Ceiling & Carpentry Industries
of New York, Inc. (the “Association”). Id. at ¶ 7. As a member of the Association, Respondent
agreed to be bound by a collective bargaining agreement between the Association and the Union,
effective from July 1, 2011 through May 31, 2016 (the “CBA”). Id. at ¶ 8. Pursuant to the CBA,
Respondent was required to “make contributions to the Funds for all work within the trade and
geographical jurisdiction of the Union.” Id. at ¶ 9. The CBA further provides that Respondent “shall
be bound by and shall comply with the agreements, declarations of trust, plans and/or regulations of
the fringe benefit funds, and the labor management cooperation committees, so designated.” Id. at
¶ 10. One such agreement by which Respondent was bound is a Joint Policy for the Collection of
Delinquent Contributions (the “Collection Policy”), established to facilitate collection of “all
employer contributions as they are due . . . .” Id. at ¶ 11; see also Joint Policy for Collection of
Delinquent Contributions (“Collection Policy”), DE [1-3] § 1.1(A). Employers bound by the
Collection Policy are required to submit to a payroll audit upon Petitioners’ request in order to ensure
that the employer has made all required contributions. See Collection Policy § 4.1. If the auditor
determines that the employer has failed to make all required contributions, the employer must remit
all unpaid contributions within thirty (30) days, as well as interest on the delinquent contributions at
a rate seventy-five one hundredths of a percent (.75%) per month. Id. at § 2.1. If the employer fails
to remit unpaid contributions identified in the audit, the matter shall be sent to arbitration before
Petitioners’ designated arbitrator. Id. at § 2.2. Pursuant to the Collection Policy, the employer “shall
be liable for all costs incurred in collecting delinquent contributions, including without limitation,
audit costs and arbitration fees.” Pet. ¶ 18; see also Collection Policy §§ 1.1(C)(4), 6.1-6.3.
B. Respondent’s Contribution Delinquency
Petitioners conducted an audit of Respondent’s payroll records and contributions for the
period of October 23, 2013 through December 29, 2015 in order to determine whether All State
Furniture had complied with its contribution obligations arising under the CBA. Pet. ¶ 15. The
auditor determined that Respondent failed to make one thousand, eight hundred and forty-eight
dollars and sixty cents ($1,848.60) in required contributions. Id. at ¶ 16. All State Furniture failed
remit its delinquent contributions, and Petitioners commenced arbitration proceedings before their
designated arbitrator, J.J. Pierson, Esq. (the “Arbitrator”). Id. at ¶ 19. Although Petitioners sent
Respondent a Notice of Intent to Arbitrate Delinquency, Respondent failed to appear at the
November 17, 2016 arbitration hearing. Id.; see also Arbitration Award at 1.
In the November 25, 2016 Arbitration Award, the Arbitrator concluded that All State
Furniture was delinquent in its contributions required pursuant to the CBA, and ordered Respondent
to pay a total of six thousand, seven hundred and twenty-four dollars and thirty-five cents
($6,724.35), including: (i) one thousand, eight hundred and forty-eight dollars and sixty cents
($1,848.60) in unpaid contributions; (ii) four hundred and forty-nine dollars and twenty-eight cents
($449.28) in interest on unpaid contributions; (iii) three hundred and sixty-nine dollars and seventytwo cents ($369.72) in liquidated damages; (iv) nine hundred dollars ($900.00) in attorneys’ fees;
(v) two thousand, four hundred and six dollars and seventy-five cents ($2,406.75) in audit costs; and
(vi) seven hundred and fifty dollars ($750.00) for the Arbitrator’s fee. Pet. ¶ 21; see also Arbitration
Award ¶ 12.
Respondent failed to abide by the terms of the Arbitration Award, and Petitioners
commenced this action on February 8, 2017. See DE . On May 19, 2017, Petitioners requested
that their unanswered Petition be reviewed as an unopposed motion for summary judgment to
confirm the Arbitration Award. DE .
An unanswered petition to confirm an arbitration award is to be treated “as an unopposed
motion for summary judgment.” D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 110 (2d Cir.
2006); see also Trs. for The Mason Tenders Dist. Council Welfare Fund, Pension Fund, Annuity
Fund & Training Program Fund v. Earth Constr. Corp., No. 15 Civ. 3967, 2016 WL 1064625, at
*3 (S.D.N.Y. Mar. 15, 2016) (“A district court should treat an unanswered petition to confirm or
vacate as an unopposed motion for summary judgment and base its judgment on the record.”)
(internal quotation and alterations omitted). A motion for summary judgment, whether opposed or
unopposed, “may not be granted unless all submissions taken together ‘show that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’”
Trs. of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Cooperation, Pension &
Welfare Funds v. Phicon Constr., No. 13-CV-3089, 2014 WL 824324, at *5 (E.D.N.Y. Mar. 3, 2014)
(quoting Fed. R. Civ. P. 56(c)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.
Ct. 2505, 2510 (1986) (holding that a motion for summary judgment should be denied if “the
evidence is such that a reasonable jury could return a verdict for the nonmoving party”). The moving
party bears the burden of establishing that there is no genuine issue of material fact. Gallo v.
Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994). Where a motion for summary
judgment is unopposed, the court must examine “the moving party’s submission to determine if it
has met its burden of demonstrating that no material issue of fact remains for trial and that the movant
is entitled to judgment as a matter of law.” Trs. of Empire State Carpenters Annuity, Apprenticeship,
Labor-Mgmt. Cooperation, Pension & Welfare Funds v. J.H. Reid Gen. Constr. Co., No. 14-CV6407, 2015 WL 8111121, at *2 (E.D.N.Y. Oct. 19, 2015) (Report and Recommendation), adopted
by, 2015 WL 8207494 (E.D.N.Y. Dec. 7, 2015) (internal quotation omitted); see also D.H. Blair &
Co., Inc., 462 F.3d at 110 (“Even unopposed motions for summary judgment must fail where the
undisputed facts fail to show that the moving party is entitled to judgment as a matter of law.”)
(internal quotation omitted).
It is well established that “a court’s review of an arbitration award is severely limited so as
not to frustrate the goals of arbitration—namely, to settle disputes efficiently and avoid long and
expensive litigation.” Trs. of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt.
Cooperation, Pension & Welfare Funds v. Lazzaro Assocs., Inc., No. 12-CV-5651, 2014 WL
4175859, at *5 (E.D.N.Y. July 15, 2014) (internal quotation omitted); see also Trs. of Nat’l Org. of
Indus. Trade Unions Ins. Tr. Fund v. Davis Grande Co., No. 03-CV-6229, 2006 WL 1652642, at *2
(E.D.N.Y. June 9, 2006) (“The scope of judicial review of an arbitration award is extremely
narrow.”). Therefore, “the award should be confirmed if a ground for the arbitrator’s decision can
be inferred from the facts of the case.” D.H. Blair & Co., Inc., 462 F.3d at 110 (internal quotation
omitted). Given the limited scope of review, a court must confirm an arbitration award that “draws
its essence from the collective bargaining agreement and is not the arbitrator’s own brand of
industrial justice.” First Nat’l Supermarkets, Inc. v. Retail, Wholesale & Chain Store Food Emps.
Union Local 338, 118 F.3d 892, 896 (2d Cir. 1997) (internal quotation omitted).
Petitioners have satisfied their burden in establishing that the Arbitration Award should be
confirmed. Relying upon the audit of All State Furniture’s payroll records and contributions, as well
as evidence presented at the arbitration hearing, the Arbitrator concluded that All State Furniture
failed to remit one thousand, eight hundred and forty-eight dollars and sixty cents ($1,848.60) in
required contributions from October 23, 2013 through December 29, 2015. See Arbitration Award
¶¶ 11-12. In addition to unpaid contributions, the Collection Policy entitles Petitioners to recover
additional amounts for interest, liquidated damages, attorneys’ fees, audit costs, and the arbitrator’s
fee. See Collection Policy §§ 1.1(C)(4), 6.1-6.3; see also Earth Constr. Corp., 2016 WL 1064625,
at *3 (confirming arbitration award based upon the parties’ agreements, the audit, and live testimony
at the arbitration hearing); Trs. of New York City Dist. Council of Carpenters Pension Fund v. Dejil
Sys., Inc., No. 12 Civ. 5, 2012 WL 3744802, at *3 (S.D.N.Y. Aug. 29, 2012) (“Where, as here, there
is no indication that the arbitration decision was made arbitrarily, exceeded the arbitrator’s
jurisdiction, or otherwise was contrary to law, a court must confirm the award upon the timely
application of any party.”). As the Arbitration Award “draws its essence from the collective
bargaining agreement[s], the court must affirm the award . . . .” Lazzaro Assocs., Inc., 2014 WL
4175859, at *5. Therefore, Petitioners are entitled to recover six thousand, seven hundred and
twenty-four dollars and thirty-five cents ($6,724.35) as provided for in the Arbitration Award.
Petitioners also seek to recover a total of one thousand, five hundred and twenty-seven
dollars and fifty cents ($1,527.50) in attorneys’ fees and costs incurred in connection with the instant
Petition. See Pet. ¶¶ 31-33. The Collection Policy provides that, “[a]ttorneys’ fees shall be due to
the Fund from a delinquent employer at the hourly rate charged to the Fund for such services . . . for
all time spent by Counsel in collection efforts,” see Collection Policy § 6.2, and courts in the Second
Circuit have held that a “[f]ailure to appear at arbitration or the confirmation hearing may result in
a grant of attorneys’ fees on equitable grounds.” New York City Dist. Council of Carpenters Pension
Fund v. Brookside Contracting Co., Inc., No. 07 Civ. 2583, 2007 WL 3407065, at *2 (S.D.N.Y.
Nov. 14, 2007); see also Int’l Chem. Workers Union (AFL–CIO), Local No. 227 v. BASF Wyandotte
Corp., 774 F.2d 43, 47 (2d Cir. 1985) (“[W]hen a challenger refuses to abide by an arbitrator’s
decision without justification, attorney’s fees and costs may properly be awarded.”). Based upon
the Court’s review of, inter alia, the contemporaneous time records from the law firm of Virginia &
Ambinder, LLP, submitted with the instant Petition, the Court concludes that Petitioners have
satisfied their burden in demonstrating that the attorneys’ fees and costs they seek to recover are
reasonable. See Pet. Ex. F; see also Trs. of Empire State Carpenters Annuity, Apprenticeship,
Labor-Mgmt. Cooperation, Pension & Welfare Funds v. Fourmen Constr., Inc., No. 15-CV-3252,
2016 WL 146245, at *5 (E.D.N.Y. Jan. 13, 2016) (holding that four and seven tenths (4.7) hours
billed on an unopposed petition to confirm an arbitration award was reasonable, and awarding an
hourly rate of two hundred and twenty-five dollars ($225.00) to a Virginia & Ambinder associate).
Therefore, Petitioners are also entitled to recover one thousand, five hundred and twenty-seven
dollars and fifty cents ($1,527.50) in attorneys’ fees and costs incurred in in connection with the
For the reasons set forth herein, the Arbitration Award is confirmed, and Petitioners are
awarded a judgment against Respondent in the amount of eight thousand, two hundred and fifty-one
dollars and eighty-five cents ($8,251.85). The Clerk of the Court shall enter judgment in favor of
Petitioners consistent with this Opinion and Order and close this case.
Dated: Central Islip, New York
May 31, 2017
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
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