Trustees Of The New York City District Council Of Carpenters Pension Fund, Welfare Fund, Annuity Fund, and Apprenticeship, Journeyman Retraining, Educational and Industry Fund et al v. Premier Concrete Services Inc.

Filing 16

ORDER AND OPINION: For the reasons stated above, the Court grants the petition to confirm arbitration, awards judgment in Petitioners' favor in the amount of $24,126.86, awards an additional $645 for attorneys' fees and costs re lated to the instant litigation, and imposes post-judgment interest at the statutory rate until the judgment is paid. The Clerk of Court is respectfully instructed to terminate Docket Entry 1. (Signed by Judge Valerie E. Caproni on 1/16/2018) (kgo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------- X
:
TRUSTEES OF THE NEW YORK CITY
:
DISTRICT COUNCIL OF CARPENTERS
PENSION FUND, WELFARE FUND, ANNUITY :
FUND, and APPRENTICESHIP, JOURNEYMAN :
:
RETRAINING, EDUCATIONAL AND
:
INDUSTRY FUND, TRUSTEES OF THE NEW
:
YORK CITY CARPENTERS RELIEF AND
CHARITY FUND, THE NEW YORK CITY AND :
:
VICINITY CARPENTERS LABORMANAGEMENT CORPORATION, and the NEW :
:
YORK CITY DISTRICT COUNCIL OF
:
CARPENTERS,
:
:
Petitioners,
:
:
-against:
:
PREMIER CONCRETE SERVICES INC.,
:
Respondent. :
--------------------------------------------------------------X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 1/16/18

17-CV-6036 (VEC)
ORDER AND OPINION

VALERIE CAPRONI, United States District Judge:
The Petitioners, which include Trustees of the New York City District Council of
Carpenters Pension Fund, Welfare Fund, Annuity Fund, and Apprenticeship, Journeyman
Retraining, Education and Industry Fund; Trustees of the New York City Carpenters Relief and
Charity Fund; the New York City and Vicinity Carpenters Labor-Management Corporation; and
the New York City District Council of Carpenters (“Petitioners”), seek confirmation of an
arbitration award entered against Respondent, Premier Concrete Services, Inc., as well as
attorneys’ fees and costs, pursuant to Section 301 of the Labor Management Relations Act
(“LMRA”), 29 U.S.C. § 185. For the reasons stated below, the petition is granted.

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I.

BACKGROUND
Petitioners in this matter seek to enforce an arbitration award of $24,126.86 against

Respondent, entered pursuant to the parties’ applicable Collective Bargaining Agreement.
Petition to Confirm Arbitration Award (“Petition”) [Dkt. 1] ¶¶ 4–8, 17–22; Collective
Bargaining Agreement (“CBA”) [Dkt. 1-4]. According to the Petition, Respondent became
bound by the CBA in connection with a development project in 2014. Petition ¶¶ 9–11. The
CBA requires Respondent to contribute to a set of fringe benefit funds (the “Funds”) for every
hour worked by a covered union employee, and allows the Funds to audit Respondent to ensure
compliance with its contribution obligations. Id. ¶¶ 12–13; CBA Art. XI §§ 1, 7B.1 The CBA
further permits arbitration of a dispute over such contributions, which may result in the award of
unpaid contributions, interest, liquidated damages, attorneys’ fees, costs, and other relief.
Petition ¶¶ 14–15; CBA Art. XI § 7A(f), (g).
An audit revealed that Respondent had failed to make required contributions from April
12, 2014 through March 31, 2015, prompting arbitration. Petition ¶¶ 16–17. The arbitrator
found that Respondent violated the CBA and required Respondent to pay $24,126.86 plus 5.75%
interest accruing thereafter; payment remains outstanding. Id. ¶¶ 18–21; Opinion and Default
Award of Arbitrator (“Award”) [Dkt. 1-6].2

1
The Copy of the CBA attached to the Petition includes two sections under Article XI labeled “Section 7.”
The Court will refer to the first as “7A” and the second as “7B.”
2

At the arbitration, no one appeared on behalf of Respondent. The arbitrator found that the Respondent had
received sufficient notice of the arbitration but did not request an adjournment or extension of time to appear.
Award at 1–2.

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II.

DISCUSSION
A. The Arbitration Award was Proper
“Section 301 of the [LMRA] provides federal courts with jurisdiction over petitions

brought to confirm labor arbitration awards.” Local 802, Associated Musicians of Greater N.Y.
v. Parker Meridien Hotel, 145 F.3d 85, 88 (2d Cir. 1998) (citation omitted). “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 & Co. v. Gottdiener, 462 F.3d 95, 110
(2d Cir. 2006) (citations and internal quotation marks omitted).
A court’s “review of an arbitration award under the LMRA is . . . very limited.” Nat’l
Football League Mgmt. Council v. Nat’l Football League Players Ass’n, 820 F.3d 527, 536 (2d
Cir. 2016) (quoting Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509 (2001))
(internal quotation marks omitted). 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 inquire[s] only as to whether the arbitrator acted within the scope of his authority
as defined by the collective bargaining agreement.” Id. The 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)) (internal quotation marks omitted). “Generally speaking, unless the award is procured

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through fraud or dishonesty, the decision should not be disturbed.” Local 97, Int’l Bhd. of Elec.
Workers, A.F.L.-C.I.O. v. Niagara Mohawk Power Corp., 196 F.3d 117, 124 (2d Cir. 1999)
(citation omitted).
When a petition to confirm an arbitration award is unopposed, courts generally treat the
petition and accompanying record like a motion for summary judgment; as with an unopposed
summary judgment motion, an unopposed confirmation petition must be granted unless the
undisputed facts fail to show that the moving party is entitled to judgment as a matter of law. See
D.H. Blair & Co, 462 F.3d at 109–10. “[E]ven where a non-moving party fails to respond to a
motion for summary judgment, . . . [i]f 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. Blair, 462 F.3d at
109–10 (quoting Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.
2004)) (emphasis in original).
The Court has reviewed Petitioner’s submissions and finds that they provide undisputed
evidence that Respondent failed to make the required payments, and show that the arbitrator’s
award was properly within the scope of his authority.3 Petitioners’ motion is thus granted and
the award is confirmed.

3

On December 28, 2017, the Court ordered Petitioners to provide the basis for the award of “Non-Audit Late
Payment Interest.” See December 28, 2017 Order [Dkt. 11]. Petitioners replied by letter on January 4, 2018,
explaining the legal and factual basis for the award—this component of the arbitration award was tied to interest on
contributions that had been made late, in contrast to the contributions that the audit concluded had not been made at
all—and providing a schedule setting forth the calculation of this award component. January 4, 2017 Letter [Dkt.
13]; Ex. G, Late Payment Schedule [Dkt. 13-1] at 268. The Court also requested, on January 5, 2018, that
Petitioners submit the audit report that supported the arbitrator’s award, which Petitioners filed on January 11, 2018.
See January 5, 2018 Order [Dkt. 14]; Audit Report [Dkt. 15-1]. The Court has reviewed these materials and is
satisfied that the arbitrator had a factual basis for the arbitration award.

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B. Reimbursement of Attorneys’ Fees and Costs is Warranted
Petitioners also seek reimbursement for attorneys’ fees and costs. See Petition ¶¶ 23–32,
and at 7. While attorneys’ fees and costs are generally not recoverable from an opposing party,
courts have used their inherent powers to award them in successful petitions to confirm
arbitration awards “when a challenger refuses to abide by an arbitrator’s decision without
justification . . . .” Trustees of the New York City Dist. Council of Carpenters Pension Fund v.
Coastal Envtl. Grp., Inc., No. 1:16-CV-6004-GHW, 2016 WL 7335672, at *3 (S.D.N.Y. Dec.
16, 2016) (quoting Int’l Chem. Workers Union, Local No. 227 v. BASF Wyandotte Corp., 774
F.2d 43, 47 (2d Cir. 1985)) (internal quotation marks omitted).
The Court finds that an award of fees and costs is justified. Respondent was bound by
the CBA to submit disputes over contributions to the Funds to arbitration. Respondent failed to
participate in the arbitration proceeding, failed to participate in the instant matter, and has not
paid the arbitration award. Additionally, the CBA entitles Petitioners to reasonable attorneys’
fees and costs incurred in collecting delinquent contributions. See Petition ¶ 23; CBA Art. XI
§ 7A(f). Respondent has failed to justify its refusal to abide by the arbitrator’s decision,
warranting the award of reasonable fees and costs. Petitioners seek $570 in attorneys’ fees for
2.4 hours of work, along with $75 of service fees. Petition ¶¶ 31–32; Attorney Invoice
(“Invoice”) [Dkt. 1-8]. The Court finds these amounts reasonable, and awards Petitioners $645
for fees and costs.
C. Statutory Interest is Warranted
Petitioners also seek post-judgment interest at the statutory rate. Petition at 7. Pursuant
to 28 U.S.C. § 1961, “[i]nterest shall be allowed on any money judgment in a civil case
recovered in a district court . . . calculated from the date of the entry of the judgment, at a rate

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equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board
of Governors of the Federal Reserve System, for the calendar week preceding.” 28 U.S.C. §
1961(a). Such awards of post-judgment interest are mandatory and apply to actions to confirm
arbitration awards. Trustees for The Mason Tenders Dist. Council Welfare Fund v. Euston St.
Servs., Inc., No. 1:15-CV-6628-GHW, 2016 WL 67730, at *2 (S.D.N.Y. Jan. 5, 2016) (citing
Cappiello v. ICD Publ’ns, Inc., 720 F.3d 109, 113 (2d Cir. 2013); Westinghouse Credit Corp. v.
D’Urso, 371 F.3d 96, 100–01 (2d Cir. 2004)). The Court thus awards interest to accrue from the
date judgment is entered until payment is made.
III.

CONCLUSION
For the reasons stated above, the Court grants the petition to confirm arbitration, awards

judgment in Petitioners’ favor in the amount of $24,126.86, awards an additional $645 for
attorneys’ fees and costs related to the instant litigation, and imposes post-judgment interest at
the statutory rate until the judgment is paid. The Clerk of Court is respectfully instructed to
terminate Docket Entry 1.

SO ORDERED.
_________________________________
____________________________
_
_
CAPRONI
VALERIE CAPRONI
O
United States District Judge

Date: January 16, 2018
New York, New York

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