Trustees For The Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund and Training Program et al v. United Construction Field Inc.

Filing 12

OPINION & ORDER: For the reasons stated above, the Court confirms the Award in favor of plaintiffs in the amounts of: (1) $29,720.85 against UCF, pursuant to the Award; and (2) Post-judgment interest in accordance with 28 U.S.C. $ 1961(a). The Clerk of Court is respectfully directed to terminate the motion pending at docket number 6, and to close this case. (As further set forth in this Order) (Signed by Judge Paul A. Engelmayer on 6/25/2015) (kl)

USDC SDNY

DOCUMENT

PLECTRONICALLY FILED

LTNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

oirc
.X

TRUSTEES FOR THE MASON TENDERS DISTRICT
COUNCIL V/ELFARE FLIND, PENSION FLIND,
ANNUITY FLTND, ANd TRAINING PROGRAM FUND;
and ROBERT BONANZA, as Business Manager of the
MASON TENDERS DISTRICT COLTNCIL OF
GREATER NEW YORK,

DATE FILED 261 29/ t3

14 Civ. 9996 (PAE)

OPINION & ORDER

Plaintiffs,

UNITED CONSTRUCTION FIELD, INC.,
Defendant.

----x
PAUL A. ENGELMAYER, District Judge:
On December 18, 2014, the Trustees for the Mason Tenders District Council V/elfare
Fund, Pension Fund, Annuity Fund, and Training Program Fund, and Robert Bonanza as
Business Manager of the Mason Tenders District Council of Greater New York (collectively,

"plaintiffs"), commenced this action to confirm an arbitration award (the "Award") issued
against defendant United Construction Field, Inc.

("UCF"). Dkt. 1 ("Compl."). This action

was

filed under Section 501(dxl) of the Employee Retirement Income Security Act of 1974
("ERISA"), 29 U.S.C. $ 1132(dX1); Section 301(c) of the Labor Management Relations Act

("LMRA"¡, 29 U.S.C. $ 185; and Section 9 of the Federal Arbitration Act ("FAA"), 9 U.S.C.
$

9. Plaintiffs also seek statutory interest to accrue from the date judgment is entered in this case

until UCF has paid the Award in full.
On January 74,2015, the Complaint was served on UCF, and on January 2I,2015, proof

of service was filed with the Court. Dkt. 3. The deadline for UCF to answer the Complaint was

February 4,2015, seeDkt.3, andthe deadline for UCF to oppose plaintiffs' motion for summary

judgment was March 20,2015, seeDkt.4. To date, UCF has not appeared in this action.
For the following reasons, the Award is confirmed, and plaintiffs' request for post-

judgment interest is granted.

I.

Backgroundl

A.

The Parties

The Mason Tenders District Council Welfare, Annuity, Pension, and Training Program
Funds (collectively, theooFunds") are employee benefit plans as defined in Section 3(3)

of

ERISA,29 U.S.C. $ 1002(3), and multiemployer plans within the meaning of Section 3(37X4)
of ERISA, 29 U.S,C. $ 1002(37)(A). Compl. T 1. The Funds' main purpose is to provide fringe
benefits to eligible employees pursuant to collective bargaining agreements between employers
and the Mason Tenders District Council of Greater New York and Long Island (the "Union").

Id.

Each of the Funds is established and maintained pursuant to an Amended and Restated

Agreement and Declaration of Trust, the "Benefit Plan Trust Agreement" and theooPension Fund
Trust Agreement" (collectively, the "Trust Agreements").

principal place of business in New York, New York.

Id.

The Funds maintain their

Id. Bonanza,the Business

Manager of the

Union, brings this action for dues and contributions in his representative capacity pursuant to
Section 12 of the General Associations Law of the State of New York. Savci Decl. J[6.
UCF is an "employet" as defined by the Trust Agreements; it is a signatory to the 20082011 Independent Collective Bargaining Agreement ("CBA") and the 2009-2014 NYC Agency

I The following undisputed facts are derived from the Complaint, Dkt. 1 ("Compl.); the
declaration of Haluk Savci in support of the motion for summary judgment, Dkt. 7 ("Savci
Decl."); and plaintiffs' memorandum of law in support of the motion for summary judgment,
Dkt. 10 ("P1. Br.").
2

Renovation Project Labor Agreement

("PLA"). Compl. fl 6. UCF's place of business is in

Brooklyn, New York, Id. n3.

B.

The Collective Bargaining Agreements

On July 1, 2008, Shamas Mian, then President of UCF, signed the CBA on behalf

of

UCF, and Bonanza signed on behalf of the Union. Savci Decl., Ex. 1A ("CBA"), at39. By its
terms, the CBA was to remain effective through June 30, 2011, and thereafter renew

automatically for one-year terms unless either party sought to modify or amend

it. Id. at37.

Neither party has given'owritten notice of termination pursuant to the terms of the [CBA]."
Savci Decl.

.!l

9.

Under the CBA, UCF was required to

oopay

weekly all fringe benefit contributions, dues,

and MTDC PAC [Union Political Action Committee] deductions to the applicable

entity." CBA

at 41. As an enforcement mechanism, the CBA provides for audits by the Union to
independently verify that proper contributions have been made

, Id. at 23 ,

The CBA further

provides for dispute resolution through arbitration. Id. at 32. It details the arbitration procedures

to be followed, stating, in relevant part, that where UCF is found to have failed to pay the fringe
benefits, dues, or MTDC PAC contributions, the Union may seek an award that includes

"interest at the prime rate on the day of the award plus two percent, running from the date of the

violation," attorneys' fees and costs, and statutory relief. Id. af 33.
On November 14,2009, Mian, again acting on behalf of UCF, signed a Sub-Contractor

Affidavit of Project Labor Agreement. Savci Decl., Ex. 1B ("PLA"), at 1. On }l4:ay 4,201I,
Mian executed

a

Letter of Assent to the same effect. Id. at 2. These agreements bound UCF to

the terms of the PLA, effective from 2009 to 2014. Id.

af"

l-2.

The PLA, together with the CBA,

bound UCF to the terms by which it was to manage work on various projects. The PLA

J

incorporates the Trust Agreement. PLA at Art. 11 $ 2b. The Trust Agreement states, in relevant

part,that"fi]n addition to any other remedies which may exist under the applicable Collective
Bargaining Agreement . . . an Employer in default for ten (10) business days shall be obligated to
pay interest from the due date . , . in the amount determined by using the rate prescribed under

section 6621 of Title 26 of the United States Code." Savci Decl., Ex, 2 ("Trust Agreement") at

37. The PLA also provides procedures for arbitration, which include that if, after due notice,

a

party "fails to be present or fails to obtain a postponement" the arbitration award "shall be based
solely on the evidence presented by the appearing party)' Id.F;x.3, at3.

C.

The Arbitration Award

On May 9,2013, plaintiffs sent a Notice and Demand for Arbitration to UCF, alleging
that UCF had failed to make sufficient benefit contributions for the period of February I,2012
through June 30, 2012. Savci Decl. fl 18. On 'lr/;ay 20,2013, Robert Hetzog, Esq., an approved

arbitrator listed in the CBA, scheduled a hearing for June 24,2013.

Id. A notice of the hearing

was delivered to UCF via regular and certified mail, as required by the CBA. See id.; CBA at

32. On June 24,2013, UCF failed to appear, and plaintiffs agreed to reschedule. Savci Decl.

fl 18. Herzog rescheduled the hearing for September 9, 2013.

Id.

Again, Herzog sent proper

notice to UCF, but no representative appeared on the company's behalf.

Id, OnNovember

19,

2013, after rescheduling and notifying UCF of the new hearing date, Herzog held the hearing.

Id. n 19. Although UCF "received notice of the November 19,2013 proceeding and the claim
against it, no appearance on its behalf was made." Compl., Ex, 1 ("Awatd") at 4.
The arbitration proceeded as a default hearing, and plaintiffs provided an audited review

of the relevant records, which showed that UCF "was deficient in its contributions to the Funds."

Id. at 5, Herzog directed UCF to pay the "delinquency amount including interest, liquidated

4

damages, and legal and arbitration costs and fees" totaling to "the aggregate amount of twenty-

nine thousand, seven hundred twenty dollars and eighty-five cents ($29,720.85) with interest to
accrue at the prime rate from the date of this

D.

Award." Id. at 5-6.

This Action

On January 14,2015, plaintifß filed the Complaint seeking to confirm the Award "in the
amount of 529,720.85 with statutory interest to accrue from the date of the entry of Judgment."

Compl. fl 20. On January 2l,2015,plaintifß filed an affrdavit of service confirming that service
had been accepted on behalf of

UCF. Dkt. 3. Despite this, UCF has failed to appear or answer

the Complaint. On March 6,2075, plaintiffs moved for summary judgment. Dkt. 6. UCF has
not opposed this motion.

II.

Discussion

A.

Legal Standard

"Arbitration awards are not selÊenforcing"; "they must be given force and effect by
being converted to judicial orders by courts." Power Partners MasTec, LLC v. Premier Power
Renewable Energy,lzc., No. 14 Civ. 8420 (V/HP),2015 WL774714,

ú*I

(S.D.N.Y. Feb. 20,

2015) (quoting D.H. Blair & Co. v. Gottdiener,462 F.3d 95, 104 (2d Cir. 2006)). The FAA
provides a'oostreamlined' process for aparty seeking 'a judicial decree confirming an award."'
Salzman v. KCD Fin., Inc., No. I 1 Civ. 5865 (DLC),2011 WL 6778499, at *2 (S.D.N.Y. Dec.

21,2011) (quoting Hall

St.

Assocs. L.L,C. v, Mattel, Lnc.,552 U.S. 576, 582 (2008)). "Normally,

confirmation of an arbitration award is a summary proceeding that merely makes what is already
a

final arbitration award a judgment of the court, and the court must grant the award unless the

award is vacated, modified, or corrected." D.H. Blair,462F,3d at 110 (citations omitted), In

this Circuit, "[t]he showing required to avoid summary conhrmation of an arbitration award is

5

high." Witlemijn Houdstermaatschappij, BV v. Standard Miøosystems Corp., 103 F.3d 9, 12 (2d
Cir, 1997) (quoting Otttey v. Schwartzberg, 819 F .2d 373,

37

6 (2d

Cir. 1987));

see also Duferco

Int'l Steel Trading v. T. Klaveness Shipping A/5,333 F.3d 383, 388 (2d Cir.2003) ("It is well
established that courts must grant an larbitrator's] decision great deference.").
oseverely limited' so as not unduly to
Review of an arbitral award by a district court "is

frustrate the goals of arbitration, namely to settle disputes efficiently and avoid long and
expensive litigation." Salzman,20l
Indeed,

ooan

I WL 6778499

at *2 (quoting Willemiin, 103 F.3d at 12).

arbitration award should be enforced, despite a court's disagreement with it on the

merits, if there is 'a barely colorable justification for the outcome reached."' Landy Michaels
Realty Corp. v. Local 328-32J, Serv. Emps.

Int'l

(Jnion, AFL-C|O,954

1992) (quoting Andros Compania Maritima, S.A. v, Marc Rich

& Co.,

F

.2d794,797 (2d Cir.

579 F.2d 691,704 (2d

Cir.

1e78)).

To prevail on a motion for summary judgment, the movant must "show[] that there is no

of

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

law."

Fed. R. Civ. P. 56(a). In making this determination, the Court must view all factsooin the

light most favorable" to the non-movingparty. Tolan v. Cotton,134 S. Ct, 1861, 1866 (2014)
(citations omitted). To survive a summary judgment motion, the opposing party must establish a
genuine issue of fact by "citing to particular parts of materials in the record." Fed. R. Civ. P.

56(cX1); see also Wright v. Goord,554 F.3d 255,266 (2dCir.2009). "Only disputes over facts
that might affect the outcome of the suit under the governing law will preclude the entry
summary judgment." Andersonv. Liberty Lobby, únc.,477

of

U.5.242,248 (1986} In determining

whether there are genuine issues of material fact, the Court is 'oorequired to resolve all

ambiguities and draw all permissible factual inferences in favor of the party against whom

6

surnmary judgment is sought."' Johnsonv.

Killian,680 F.3d 234,236 (2dCir.2012) (quoting

Terry v. AshÜofL 336 F.3d 128,137 (2d cir. 2003)).
ooEven

when a motion for summary judgment is unopposed, the district court is not

relieved of its duty to decide whether the movant is entitled to judgment as a mattet of
Teddy Bear Co. v. I-800 Beargram

Co.,373F.3d241,242 (2dCir.2004);

law."

VL

see also Amaker v.

Foley,274 F.3d 677, 681 (2d Cir.2001). In reviewing an unopposed motion for confirmation of
an arbitration awatd, a court:

may not grant the motion without first examining the moving party's submission to
determine if it has met its burden of demonstrating that no material issue of fact
remains for trial. If the evidence submitted in support of the summary judgment
motion does not meet the movant's burden of production, then summary judgment
must be denied even if no opposing evidentiary matter is presented'

D.H. Btair,462F.3d at 1 10 (emphasis in original) (citations omitted), Where

oothere

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 )' Herrenknecht Corp. v. Best Rd. Boring, No. 06 Civ. 5106
(JFK), 2007 WL ll49l22,at *2 (S.D.N.Y. Apr. 16,2007) (citing 9 U.S.C. $ 9; Florasynth, Inc.
v. Pickholz, 7 50 F.2d 17 l,

B.

17

6 (2d Cir. I 984)).

Confirmation of the Arbitration Award

On the basis of the Award, and on the very limited review that is appropriate, the Court

finds that summary judgment is warranted, as plaintiffs have shown there is no material issue of
fact in dispute, The arbitrator acted within the scope of the authority granted him by the parties.
^9e¿

CBA Art. X

$

b. The arbitrator found, inter alia, that the CBA

and PLA: (1) obligated UCF

to contribute to fringe benefits and the MTDC PAC, and (2) authorized the Funds to verify that
all the required payments and contributions were made. Award at 4. Further, based on

7

testimony from a representative of the Funds, the arbitrator concluded that UCF was deficient in
its contributions, From this, this Court concludes that there is at least, and by all indications
more than, a"barely colorable justification for the outcome reached." Landy Michaels Realty

Corp., 954 F .2d at 797 . Accordingly, the Court confirms the Award in favor of plaintiffs , for

a

total amount of 529,720.85, plus interest.

C.

Post-Judgment Interest

Pursuant to 28 U.S.C. $ 1961(a), "fi]nterest shall be allowed on any money judgment in a

civil

case recovered in a district court, . . . at a rate equal to the

weekly averuge l-year constant

maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System,
for the calendar week preceding the date of the judgment." Awards of post-judgment interest
under $ 1 961 are mandat ory. See Cappiello v. ICD Publ'ns, Lnc.,720 F.3d 109, I 13 (2d Cir.
oodocketed
as if it was rendered in an action," and
2013) (collecting cases). Arbitration is to be

"have the same force and effect, in all respects, as, and be subject to all the provisions of law
relating to, a judgment in an action; and it may be enforced as if it had been rendered in an action

in the court in which it is entered." 9 U.S.C. $ 13. Accordingly, $ 1961 applies to actions to
confirm arbitration. See, e.g.,llestinghouse Credit Corp. v. D'Urso,371 F.3d 96, 100-01 (2d

Cir.2004) (awarding post-judgment interest in an arbitration case). The Court therefore awards
interest to accrue from the date judgment is entered until payment is made.

CONCLUSION
For the reasons stated above, the Court confirms the Award in favor of plaintiffs in the
amounts of:

(1) $29,720.85 against UCF, pursuant to the Award; and
(2) Post-judgment interest in accordance with 28 U.S.C. $ 1961(a).

8

The Clerk of Court is respectfully directed to terminate the motion pending at docket number 6,
and to close this case.

SO ORDERED.

'fuI

A,

Paul A. Engelmayer
United States District Judge

Dated: June 25, 2015
New York, New York

9