Drywall Tapers and Pointers of Greater New York Local Union 1974, IUPAT, AFL-CIO v. Xtreme Drywall and Acoustics

Filing 24

OPINION AND ORDER. For the reasons set forth above, Petitioner's motion for summary judgment to confirm the Award is GRANTED. The Clerk of Court shall enter judgment for Petitioner, terminate all pending motions, adjourn all remaining dates, and close this case. SO ORDERED. re: 11 MOTION for Summary Judgment filed by Drywall Tapers and Pointers of Greater New York Local Union 1974, IUPAT, AFL-CIO. (Signed by Judge Katherine Polk Failla on 5/8/2017) (rjm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DRYWALL TAPERS AND POINTERS OF
:
GREATER NEW YORK LOCAL UNION 1974, :
IUPAT, AFL-CIO,
:
:
Petitioner,
:
:
v.
:
:
XTREME DRYWALL AND ACOUSTICS,
:
:
Respondent. :
:
-------------------------------------------------------X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: May 8, 2017
______________

16 Civ. 5172 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
Petitioner Drywall Tapers and Pointers of Greater New York Local Union
1974, IUPAT, AFL-CIO (the “Union”) has filed a motion for summary judgment
to confirm an arbitration award (the “Award”) issued under Section 301 of the
Taft-Hartley Labor Management Relations Act (the “LMRA”), 29 U.S.C. § 185.
Respondent Xtreme Drywall and Acoustics did not appear in the underlying
arbitration (the “Arbitration”). Nor has it appeared in the instant action. And
because the undisputed facts of this case establish that the Award must be
confirmed, the Court grants Petitioner’s motion.
BACKGROUND 1
A.

Factual Background
Petitioner is a labor union under the LMRA that maintains its principal

office in New York City, New York. (Pet’r 56.1 ¶ 1; Compl. ¶¶ 5-6). The Union

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This Opinion draws on facts from the Declaration of John Drew (“Drew Decl.” (Dkt.
#19)), and from the Affirmation of Lauren M. Kugielska (“Kugielska Aff.” (Dkt. #18)), and

“represents employees in an industry affecting commerce as defined in Section
501 of the [LMRA],” 29 U.S.C. § 142, “and Section 3(4) of ERISA,” id. § 1002(4).
(Pet’r 56.1 ¶ 1; Compl. ¶ 5). Respondent is “a corporation duly organized and
existing under the laws of New York State with its principal office and place of
business” in Fishkill, New York. (Pet’r 56.1 ¶ 2; Compl. ¶ 7).
The case arises from Respondent’s alleged breach of two collectivebargaining agreements: the Trade Agreement between the Union, the Drywall
Taping Contractors’ Association of Greater New York, and the Association of
Wall-Ceiling & Carpentry Industry of New York, Inc. (the latter two, collectively,
the “Associations”) that was effective from September 6, 2006, to June 28,
2011, and the Trade Agreement between the Union and the Associations that is
effective from August 3, 2011, to June 27, 2017. (Dkt. #18-2). The CBAs
establish the terms and conditions upon which Union members “shall perform
tapers’, finishing, and pointers’ work” for Association-member employers. (Id.).
“Article XXI of the CBA[s] provides that [Respondent] shall pay benefit fund
contributions for all work performed by its employees covered by the [CBAs]
and to remit such benefits in accordance with the CBA[s].” (Compl. ¶ 10; see
also Dkt. #18-2). Contributions made in accordance with this provision are to
be paid into trust funds established by “trust agreements” into which the CBAs’

the exhibits attached thereto: the Complaint (the “Compl.”), to which is attached a copy
of the Decision of the Joint Trade Board (Dkt. #18-1; accord Dkt. #1), and the two
relevant collective-bargaining agreements (the “CBAs” (Dkt. #18-2)). This Opinion also
cites to Petitioner’s Local Civil Rule 56.1 Statement of Material Facts (“Pet’r 56.1” (Dkt.
#23)), which Statement is uncontested. For ease of reference, the Court refers to
Petitioner’s brief in support of its motion for summary judgment as “Pet’r Br.” (Dkt.
#20).

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signatories entered contemporaneously with the execution of the CBAs. (Dkt.
#18-2).
As relevant here, at Article XIII, Section 1, each CBA outlines a grievance
procedure requiring “all complaints other than [e]mployee grievances [to] be
presented to a Joint Committee and/or” to the Drywall Taping Industry Board
(the “Joint Board”). (Dkt. #18-2). The Joint Board is composed of three
members of the Associations, designated by the Associations, and three
members of the Union, designated by the Union. (Id.). Section 6 of Article XIV
further designates “[t]he decisions and findings of the Joint Board, including
any imposition of penalties,” as “final and binding upon the signatory
contractors and the Union, all members of each thereof and all interested
parties.” (Id.). And Section 2 of Article XIII dictates that no right of appeal
exists with respect to a final decision of the Joint Board. (Id.).
The dispute giving rise to the instant litigation
arose when [Respondent] failed to remit benefit fund
contributions in accordance with the CBA[s] for
members Jonathan Restreppo for the weeks of
September 1, 2010[;] September 15, 2010[;] September
8, 2010[;] September 22, 2010[;] September 29, 2010[;]
October 6, 2010[;] and October 13, 2010; and Allan
Sadicario for the weeks of February 17, 2015[;]
February 24, 2015[;] March 3, 2015[;] and March 10,
2015.
(Pet’r 56.1 ¶ 4). The Union filed a Demand for Arbitration with the Joint Board
and sent Respondent a Notice of Intention to Arbitrate. (Id. at ¶ 5 (citing
Compl. ¶¶ 12-13); see also Drew Decl. ¶ 4; Compl., Ex. A).

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On January 19, 2016, the Joint Board held a hearing, at which no one
appeared on behalf of Respondent. (Compl., Ex. A). The Joint Board
deliberated and
found that [Respondent] breached the [CBAs] by failing
to remit benefit contributions on behalf of Union
members Jonathan Restreppo for the period September
1, 2010[,] through October 13, 2010[,] in the amount of
$4,889.25 and Allen Sadicario for the period February
17, 2015[,] through March 10, 2015[,] in the amount of
$3,436.96.
(Drew Decl. ¶ 5; see also Pet’r 56.1 ¶¶ 6-7; Compl., Ex. A). Following the
hearing, a written award was rendered and delivered to Respondent. (Pet’r
56.1 ¶¶ 5, 8 (citing Drew Decl. ¶¶ 5-6)). “The Award directs [Respondent] to
submit payment for the delinquent contribution amounts that the [Joint Board]
determined were owed.” (Drew Decl. ¶ 6 (citing Compl. ¶¶ 15-17 & Ex. A); see
also Pet’r 56.1 ¶ 7). Payment was to be made within 72 hours. (Compl., Ex. A).
Respondent neither complied with the terms of the Award nor commenced an
action seeking to vacate or modify it. (Pet’r 56.1 ¶¶ 9-10 (citing Drew Decl. ¶ 7;
Compl. ¶ 18)).
B.

Procedural Background
Petitioner brought the instant action against Respondent on June 30,

2016. (Dkt. #1). In response to an Order of this Court dated September 12,
2016 (Dkt. #5), Petitioner filed a motion for summary judgment and supporting
papers on October 26, 2016 (Dkt. #11-23). Respondent has not appeared in
this action.

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DISCUSSION
A.

Applicable Law
“The LMRA establishes a federal policy of promoting ‘industrial

stabilization through the collective bargaining agreement,’ with particular
emphasis on private arbitration of grievances.” Nat’l Football League Mgmt.
Council v. Nat’l Football League Players Ass’n, 820 F.3d 527, 536 (2d Cir. 2016)
(quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S.
574, 578 (1960)). 2 Accordingly, judicial “review of an arbitration award under
the LMRA is … ‘very limited.’” Id. (quoting Major League Baseball Players Ass’n
v. Garvey, 532 U.S. 504, 509 (2001) (per curiam)). “[U]nless the award is
procured through fraud or dishonesty,” “the arbitrator’s factual findings,
interpretation of the contract[,] and suggested remedies” are binding on the
reviewing court. Trs. of the N.Y. City Dist. Council of Carpenters Pension Fund v.
High Performance Floors Inc., No. 15 Civ. 781 (LGS), 2016 WL 3194370, at *2
(S.D.N.Y. June 6, 2016) (first alteration in original) (internal quotation marks
omitted) (quoting Local 97, Int’l Bhd. of Elec. Workers, A.F.L.-C.I.O. v. Niagara

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The LMRA, not the Federal Arbitration Act (the “FAA”), governs this Court’s review of
Petitioner’s motion to confirm. “[I]n cases brought under Section 301 of the [LMRA] …
the FAA does not apply.” Coca-Cola Bottling Co. of N.Y. v. Soft Drink & Brewery Workers
Union Local 812 Int’l Bhd. of Teamsters, 242 F.3d 52, 53 (2d Cir. 2001). And Section
301 of the LMRA “serves as the foundation for a substantive body of federal law that is
‘analytically distinct from the [FAA].’” 1199 SEIU United Healthcare Workers E. v. Lily
Pond Nursing Home, No. 07 Civ. 408 (JCF), 2008 WL 4443945, at *3 (S.D.N.Y. Sept. 29,
2008) (quoting Westerbeke Corp. v. Daihatsu Motor Co., 304 F.3d 200, 221 (2d Cir.
2002)). Nonetheless, “the FAA is useful as a source of principles to guide the
development of law under LMRA § 301 … particularly [ ] in the context of a petition to
confirm or vacate an arbitration award.” Id. Both statutes call for courts to be
“extremely deferential” when reviewing arbitration awards. Supreme Oil Co. v. Abondolo,
568 F. Supp. 2d 401, 405 (S.D.N.Y. 2008).

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Mohawk Power Corp., 196 F.3d 117, 124 (2d Cir. 1999)), reconsideration
denied, 2016 WL 3911978 (S.D.N.Y. July 15, 2016).
A court may not “review the arbitrator’s decision on the merits despite
allegations that the decision rests on factual errors or misinterprets the parties’
agreement, but” instead may “inquire only as to whether the arbitrator acted
within the scope of his authority as defined by the collective bargaining
agreement.” Nat’l Football League, 820 F.3d at 536. A reviewing court’s “task
is simply to ensure that the arbitrator was ‘even arguably construing or
applying the contract and acting within the scope of his authority’ and did not
‘ignore the plain language of the contract.’” Id. at 537 (quoting United
Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987)). “As
long as the award ‘draws its essence from the collective bargaining agreement
and is not merely the arbitrator’s own brand of industrial justice,’ it must be
confirmed.” Id. (quoting Int’l Bhd. of Elec. Workers, Local 97 v. Niagara Mohawk
Power Corp., 143 F.3d 704, 714 (2d Cir. 1998)).
Thus, “[c]onfirmation of a labor arbitration award under LMRA § 301 is a
summary proceeding that merely makes what is already a final arbitration
award a judgment of the Court.” Trs. for the Mason Tenders Dist. Council
Welfare Fund, Pension Fund, Annuity Fund & Training Program Fund v. Odessy
Constructioncorp, No. 14 Civ. 1560 (GHW), 2014 WL 3844619, at *1 (S.D.N.Y.
Aug. 1, 2014) (internal quotation marks omitted) (quoting N.Y. Med. Ctr. of
Queens v. 1199 SEIU United Healthcare Workers E., No. 11 Civ. 4421 (ENV)
(RLM), 2012 WL 2179118, at *4 (E.D.N.Y. June 13, 2012)). “When a petition to
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confirm an arbitration award is unopposed, courts should generally treat ‘the
petition and accompanying record ... as akin to a motion for summary
judgment.’” Id. at *2 (omission in original) (quoting D.H. Blair & Co. v.
Gottdiener, 462 F.3d 95, 109 (2d Cir. 2006)). “Thus, like unopposed summary
judgment motions, unopposed confirmation petitions ‘must fail where the
undisputed facts fail to show that the moving party is entitled to judgment as a
matter of law.’” Id. (quoting D.H. Blair & Co., 462 F.3d at 110).
B.

Analysis
Viewed in light of the LMRA, the undisputed facts of this case make plain

that the Court must confirm the Award. The CBAs required Respondent to
remit benefit-fund contributions for all work performed by its employees in
accordance with the CBAs and trust agreements. The CBAs entitled Petitioner
to pursue arbitration if Respondent failed to make those contributions.
Petitioner determined that Respondent had not made the required benefit
contributions on behalf of Union members Jonathan Restreppo, for the time
period from September 1, 2010, through October 13, 2010, and Allen
Sadicario, for the time period from February 17, 2015, through March 10,
2015. Petitioner filed a Demand for Arbitration with the Joint Board, and
served Respondent with a Notice of Intention to Arbitrate. On the basis of the
CBAs and the unopposed testimony of John Drew, President of District
Council 9, International Union of Painters and Allied Trades, which is
comprised of local constituents including Petitioner (Drew Decl. ¶ 1), the Joint
Board found Respondent “guilty on all charges” (Compl., Ex. A). The Joint
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Board rendered a written decision directing Respondent to remit benefit fund
contributions on behalf of Jonathan Restreppo in the amount of $4,889.25 for
the 225 hours of work that he performed on Respondent’s behalf from
September 1, 2010, through October 13, 2010, and on behalf of Allen Sadicario
in the amount of $3,436.96 for the 121 hours of work he performed on
Respondent’s behalf from February 17, 2015, through March 10, 2015.
Put simply, the Joint Board construed and applied the CBAs when it
issued the Award. The LMRA, in turn, requires the Court to confirm the
Award.
CONCLUSION
For the reasons set forth above, Petitioner’s motion for summary
judgment to confirm the Award is GRANTED. The Clerk of Court shall enter
judgment for Petitioner, terminate all pending motions, adjourn all remaining
dates, and close this case.
SO ORDERED.
Dated:

May 8, 2017
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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