Trustees for The Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund and Training Program Fund et al v. Earth Construction Corp.
OPINION AND ORDER: For these reasons, the petition to confirm the arbitral award is granted. The award is confirmed, and the Clerk of Court is directed to enter judgment in favor of Petitioners and against Respondent in the amount of $26,755. 26. The Clerk of Court is also respectfully directed to close this case. (As further set forth in this Order.) Motions terminated: 10 MOTION to Confirm Arbitration . filed by Trustees for The Mason Tenders District Council Welfare Fund, Pension Fund, Annuity Fund and Training Program Fund. (Signed by Judge Ronnie Abrams on 3/15/2016) (cf)
ELECTRONI CALLY FILED
DATE FILED: 3/15/2016
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TRUSTEES FOR THE MASON TENDERS
DISTRICT COUNCIL WELFARE FUND,
PENSION FUND, ANNUITY FUND, and
TRAINING PROGRAM FUND
ROBERT BONANZA, as business manager
of the MASON TENDERS DISTRICT
COUNCIL OF OREA TER NEW YORK,
No. 15-CV-3967 (RA)
OPINION AND ORDER
EARTH CONSTRUCTION CORP.,
RONNIE ABRAMS, United States District Judge:
Petitioners Trustees for the Mason Tenders District Council Welfare Fund, Pension Fund,
Annuity Fund, and Training Program Fund (the "Funds") and Robert Bonanza in his capacity as
the business manager of the Mason Tenders District Council of Greater New York commenced
this action on May 22, 2015, petitioning the Court to confirm and enforce an arbitration award
entered against Respondent Earth Construction Corp. 1 Respondent has neither responded to
Petitioners' confirmation action nor otherwise sought relief.
For the reasons that follow, the
petition to confirm the award is granted.
Although Petitioners commenced this action by complaint, the Court construes their filing as a petition to
confirm arbitration because Petitioners "met the notice requirements and have requested the appropriate relief for a
petition ... to confirm an arbitral award." New York City Dist. Council of Carpenters Pension Fund v. Brookside
Contracting Co, No. 07-CV-2583 (WHP), 2007 WL 3407065, at *l n. l (S.D.N.Y. Nov. 14, 2007).
Respondent entered into two separate agreements with the Mason Tenders District Council
of Greater New York ("MTDC"). First, as a member of the Building Contractors Association of
New York, the Respondent entered into a Collective Bargaining Agreement (the "CBA") on July
1, 2010. Deel. of Haluk Savci
7 ("Deel.); Deel. Ex. 1 at 47 ("Ex. 1"). Second, Respondent
entered into the New York City Construction Authority Project Labor Agreement (the "NYC
iJ 7 (citing id. Ex. lB ("Ex. lB")). 2 Both the CBA and the NYC CAPLA bind
Respondent to the terms and conditions of the trust agreements establishing the Funds (the "Trust
Agreements"). Ex. 1 at 34; Ex. lB at 32; Deel. Ex. 2 ("Ex. 2").
Among other things, the CBA and NYC CAPLA oblige Respondent to make certain
contributions to the Funds, Deel.
iJ 9, furnish
its books and records to the Funds upon request for
iJ 14, and abide by any "regulations or By-Laws adopted by the Funds'
11; see also Ex. 1 at 30. Although at one time the CBA governed the arbitrability of the parties'
disputes, a binding "amendment to [the] Trust Fund Agreements," Deel.
11, established the
now applicable Arbitration Procedures and Rules Governing Audits and Delinquency Disputes
(the "Arbitration Rules"), id.
iii! 14-15; id.
Ex. 3 at 2 ("Ex. 3").
Pursuant to the CBA and NYC CAPLA, Petitioners conducted an audit of Respondent's
books and records for the period from July 1, 2010 to December 26, 2012. The audit revealed that
Respondent had failed to contribute the principal amount of $18,369.56 to the Funds in violation
of the CBA and NYC CAPLA. Deel. Ex. 6 at 2 ("Ex. 6"). When Respondent failed to remit this
delinquent sum to the Funds, Petitioners submitted the dispute to arbitration pursuant to the
Arbitration Rules. Deel.
These rules provide:
In his Declaration, Petitioners' counsel refers to the NYC CAPLA as "Ex. I A." However, the relevant
exhibit was labeled "Exhibit I B" in Petitioners' filings, and, for clarity's sake, is referred to as "Ex. I B" by the Court.
Disputes may be referred to arbitration by the [Funds] by sending a
written request for arbitration to the Neutral Arbitrator, with a copy
to the employer. . . . The [arbitration] hearing shall begin promptly
at the appointed time and shall proceed in the absence of any party
or representative who, after due notice, fails to be present or fails to
obtain a postponement. ... The remedies that shall be awarded shall
be those available pursuant to the Trust Agreement, relevant
collective bargaining agreement and/or Section 502 of ERISA
including interest, liquidated damages and attorneys' fees and costs.
The award shall be final. ... If the Neutral Arbitrator finds for the
[Funds] with respect to any portion of the claim, the [Respondent]
shall be liable for the Neutral Arbitrator's fees.
Ex. 3 at 2-5.
On April 2, 2014, the Funds sent Arbitrator Joseph A. Harris and Respondent a "Notice
and Demand for Arbitration.'' Deel.
18; Ex. 6 at 1. On April 4, 2014, Arbitrator Harris "sent
[Respondent] notice that the arbitration would take place on May 8, 2014" by "First Class mail."
Ex. 6 at 2. At the hearing on May 8, 2014, Respondent did not appear and "the arbitration
proceeded as a default hearing." Id. On May 24, 2014, the arbitrator issued his decision. Id.
"Based on the substantial and credible evidence that was presented," Arbitrator Harris
concluded that (i) Respondent was bound by both the CBA and the NYC CAPLA, (ii) Petitioners
adequately made a "demand for payment [by] USPS Certified Mail Receipts indicating delivery
to [Respondent]," and (iii) Respondent owed to the Funds fringe benefits, dues, political action
committee fees, current interest, and "[r]ate [d]ifferential." Id. at 1-2. The arbitrator thus awarded
these delinquent contributions plus "ERISA Damages [of] 20% of [the] outstanding principal,"
interest for the period of August 1, 2009 to December 31, 2012, attorney's fees, and prorated
arbitrator fees. Id. at 2. Relying on the uncontroverted evidence provided by the Petitioners, the
arbitrator concluded that Respondent was liable to Petitioners in the aggregate amount of
When Respondent failed to comply with the arbitrator's decision, Petitioners brought this
action to confirm the arbitral award on May 22, 2015. On June 1, 2015, the Court informed the
parties that, pursuant to D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95 (2d Cir. 2006), it would
adjudicate this action as a petition for confirmation and directed Petitioners to submit additional
supporting materials. On August 14, 2015, Petitioners filed a formal motion seeking "confirmation
in all respects of the May 24, 2014 Default Opinion and Award of Arbitrator Joseph Harris and
monetary judgment ... in the liquidated amount of $26,755.26." Dkt. 10 at 1-2. To date,
Respondent has not appeared in this case or otherwise responded to the petition.
The Federal Arbitration Act ("FAA") provides a "streamlined" procedure for a party
seeking to confirm an arbitral award. Hall Street Assocs. L.L.C. v. Mattel!, Inc., 552 U.S. 576, 582
(2008). Typically, confirmation by a district court is a "summary proceeding that merely makes
what is already a final arbitration award a judgment of the court." D.H. Blair, 462 F.3d at 110
(citing Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984)). Yet "[a]rbitration awards
are not self-enforcing." Hoeft v. MVL Grp., Inc., 343 F.3d 57, 63 (2d Cir. 2003), overruled on
other grounds by Hall Street, 552 U.S. 576. "Rather, 'they must be given force and effect by being
converted to judicial orders by courts."' Primex Plastics Corp. v. TriEnda LLC, No. 13-CV-321
(PAE), 2013 WL 1335633, at *2 (S.D.N.Y. April 3, 2013) (quoting D.H. Blair, 462 F.3d at 104).
A district court's review of an arbitral award is "extremely limited." Rich v. Spartis, 516
F.3d 75, 81 (2d Cir. 2008). The Second Circuit has "repeatedly recognized the strong deference
appropriately due arbitral awards and the arbitral process, and has limited its review of arbitration
awards in obeisance to that process." Porzig v. Dresdner, Kleinwort, Benson, N. Am. LLC, 497
F.3d 133, 138 (2d Cir. 2007); see also Salzman v. KCD Fin., Inc., No. 11-CV-5865 (DLC), 2011
WL 6778499, at *2 (S.D.N.Y. Dec. 21, 2011); NYKOOLA.B. v. Pac. Fruit Inc., No. 10-CV-3867
(LAK) (AJP), 2010 WL 4812975, at *5 (S.D.N.Y. Nov. 24, 2010) (collecting cases). Moreover,
"the federal policy in favor of enforcing arbitration awards is particularly strong with respect to
arbitration of labor disputes." New York Hotel & Motel Trades Council, AFL-CIO v. Hotel St.
George, 988 F. Supp. 770, 774 (S.D.N.Y. 1997) (citing United Paperworkers Int'! Union v. Misco,
Inc., 484 U.S. 29, 37 (1987)). '"[A]n 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.'" Rich, 516 F.3d at 81 (quoting Landy Michaels Realty Corp. v. Local 32B-32J Serv.
Employees Int'!, 954 F.2d 794, 797 (2d Cir. 1992)) (internal quotation omitted). Ultimately,
Courts in this circuit will vacate an arbitration award only if one of the four statutory bases
enumerated in the FAA is violated. Kole! Beth Yechiel Mechil ofTartikov, Inc. v. YLL Irrevocable
Trust, 729 F.3d 99, 104 (2d Cir. 2013) (citing Hall Street, 552 U.S. at 582). 3
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. D. H Blair &
Co., 462 F.3d at 110. Accordingly, Petitioners must "show that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a).
To determine ifthere are any genuine issues of material fact, the Court must view the facts "in the
light most favorable" to the non-moving party, Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014 ), and
"resolve all ambiguities and draw all permissible factual inferences in favor of the party against
whom summary judgment is sought," Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012). "Only
disputes over facts that might affect the outcome of the suit under the governing law will properly
The FAA allows for vacatur in the following circumstances: "(!) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators ... ; (3) where the
arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing
to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any
party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that
a mutual, final, and definite award upon the subject matter submitted was not made." 9 U.S.C. § IO(a).
preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
( 1986). Even when the motion is unopposed, however, a court '"may not grant the motion without
first examining the moving party's submission to determine if it has met its burden."' D.H Blair,
462 F.3d at 110 (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.
2004)); see also Jackson v. Fed. Exp., 766 F.3d 189, 194 (2d Cir. 2014). If the moving party has
not met its burden, "'summary judgment must be denied even if no opposing evidentiary matter is
presented."' D.H Blair, 462 F.3d at 110 (quoting Vt. Teddy Bear Co., 373 F.3d at 244) (emphasis
On the record presented here, and applying the very limited review appropriate in this
context, the Court concludes that Petitioners have met their burden of showing that there is no
genuine issue of material fact and that they are entitled to judgment as a matter of law. Arbitrator
Harris' s decision reflects that he reached the judgment after reviewing the "substantial and credible
evidence" submitted by Petitioners, which included the parties' agreements, the audit, and the live
testimony of the Funds' representative. Ex. 6 at 1-2. Courts in this district have confirmed awards
in similar circumstances. Trustees ofNew York City Dist. Council o.f Carpenters Pension Fund v.
Dejil Sys., Inc., No. 12-CV-005 (JMF), 2012 WL 3744802, at *3 (S.D.N.Y. Aug. 29, 2012)
("Although the Union has not presented this Court with copies of all the materials on which the
arbitrator relied, there is no reason to doubt the arbitrator's interpretation of those materials.");
Trustees of the New York City Dist. Council of Carpenters Pension Fund v. Anthony Rivara
Contracting, LLC, No. 14-CV-1794 (PAE), 2014 WL 4369087 (S.D.N.Y. Sept. 3, 2014).
Accordingly, the record before the Court reveals more than the required "barely colorable
justification for the outcome reached." Landy Michaels Realty Corp., 954 F.2d at 797.
For these reasons, the petition to confirm the arbitral award is granted. The award is
confirmed, and the Clerk of Court is directed to enter judgment in favor of Petitioners and against
Respondent in the amount of $26,755.26. The Clerk of Court is also respectfully directed to close
March 15, 2016
New York, New York
Unite States District Judge
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