The New York City District Council of Carpenters v. Three Guys Floor Covering Workroom Inc.

Filing 18

OPINION AND ORDER re: 12 MOTION for Summary Judgment against Three Guys Floor Covering Workroom Inc. filed by The New York City District Council of Carpenters. For the reasons set forth above, Petitioner's motion for summa ry judgment to confirm the Award is GRANTED. The Clerk of Court shall enter judgment for Petitioner and against Respondent in the amount of $9,108.87, which consists of the arbitration award of $4,413.90 plus $4,694.97 in attorneys ' fees and costs. Post-judgment interest will accrue at the statutory rate pursuant to 28 U.S.C. § 1961. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. SO ORDERED. (Signed by Judge Katherine Polk Failla on 11/11/2018) (rro) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
THE NEW YORK CITY DISTRICT COUNCIL :
OF CARPENTERS,
:
:
Petitioner,
:
:
v.
:
:
THREE GUYS FLOOR COVERING
:
WORKROOM INC.,
:
:
Respondent. :
:
-------------------------------------------------------X

USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: ______________
October 11, 2018

18 Civ. 1243 (KPF)
OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:
Petitioner New York City District Council of Carpenters (“Petitioner”) has
filed a motion for summary judgment requesting two forms of relief. First,
Petitioner seeks to confirm an arbitration award issued under Section 301 of
the Taft-Hartley Labor Management Relations Act (the “LMRA”), 29 U.S.C.
§ 185. Second, Petitioner moves to recover the attorney’s fees and costs it has
incurred in seeking to confirm those awards. The motion is unopposed;
Respondent Three Guys Floor Covering Workroom Inc. did not appear in the
underlying arbitration, and has not appeared before this Court. For the
reasons set forth below, Petitioner’s motion is granted in full.

BACKGROUND 1
A.

Factual Background
Petitioner is a labor union that “represents employees in an industry

affecting commerce within the meaning of Section 501 of the LMRA, 29 U.S.C.
§ 142.” (Compl. ¶ 4). Respondent is “a corporation incorporated under the
laws of the State of New York.” (Id. at ¶ 5).
The case arises from Respondent’s alleged breach of a collectivebargaining agreement with Petitioner: the Independent Resilient Floor Coverers
Agreement that was effective from July 1, 2011, to June 30, 2015. (Pet’r 56.1
¶¶ 1-7; see also Kevnick Decl. ¶ 5). The CBA covers “work jurisdiction over all
resilient floor covering and related materials.” (CBA, art. I, § B). At issue in
this case, “[t]he CBA requires that all employers, including Respondent, notify
[Petitioner] of the awarding of any contract to perform work under the trade
and geographical jurisdiction of [Petitioner] (‘Covered Work’) and provide
[Petitioner] with the name and location of each new job before it starts.”
(Compl. ¶ 10 (citing CBA, art. XIII § V)).

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This Opinion draws on facts from the Declaration of Heather Kevnick (“Kevnick Decl.”
(Dkt. #13)), and the exhibits attached thereto: the parties’ collective-bargaining
agreement (“CBA” (Dkt. #13-3)); the form detailing grievances against Respondent for
failing to notify Petitioner of a job located at 435 West 116th Street, New York, New York
(“Grievance Form” (Dkt. #13-4)); the Petitioner’s Demand for Arbitration and Notice of
Hearing (“Arbitration Demand” (Dkt.#13-5)); and the Opinion and Default Award that
Petitioner is seeking to confirm (“Award” (Dkt. #13-6)).
The Court also cites to the Declaration of Paige Davis (“Davis Decl.” (Dkt. #14)), and the
exhibit attached thereto, which comprise Virginia & Ambinder, LLP’s billing records and
itemization of costs of suit (“Time Sheets” (Dkt. #14-1)).
Finally, this Opinion cites to the Complaint (“Compl.” (Dkt. #1) and to Petitioner’s Local
Civil Rule 56.1 Statement of Material Facts (“Pet’r 56.1” (Dkt. #15)), the latter of which
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. #16).

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As relevant here, at Article XIV, Section 2, the CBA outlines a grievance
procedure requiring any complaint that is not resolved through negotiation to
be submitted to arbitration. (CBA, art. XIV, § 2). The Section states that the
arbitrator “shall have the power to render a decision based on the testimony
before him,” and that, “[t]he decision of the arbitrator shall be final and binding
upon both parties.” (Id.). Finally, Section 4 provides that “[u]pon the
confirmation of the arbitrator’s award, the prevailing party shall, or on any
appeal therefrom, be entitled to receive all court costs in each proceeding as
well as reasonable counsel fees.” (Id. at § 4).
The dispute giving rise to the instant litigation arose on August 9, 2016,
when Respondent failed to notify Petitioner of a job, located at 435 West 116th
Street in Manhattan, in violation of the CBA. (Grievance Form). Petitioner filed
a Grievance Form, and the dispute was submitted to arbitration. (Id.; Pet’r
56.1 ¶ 15). On June 30, 2017, Petitioner served a Demand for Arbitration and
Notice of Hearing on Respondent. (Pet’r 56.1 ¶ 16 (citing Arbitration Demand)).
On August 14, 2017, the Arbitrator held a hearing, at which no one
appeared on behalf of Respondent. (Award 1). The Arbitrator proceeded to
hear the testimony of Petitioner and
found that Respondent was in violation of the terms of
the CBA and directed Respondent to pay $3,413.90,
which consists of the following: (1) wages for 35 hours
at the rate of $50.50 per hour in the amount of
$1,767.50; (2) fringe benefits for 35 hours at the rate of
$46.65 per hour in the amount of $1,632.75; and
(3) promotional fund contributions for 35 hours at the
rate of $0.39 per hour in the amount of $13.65.

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(Pet’r 56.1 ¶ 18; see also Award 2). In addition, Respondent was liable for one
half of the arbitrator’s fees in the amount of $1,000, bringing the total amount
of the Award to $4,413.90. (Id.). To date, Respondent has not complied with
the terms of the Award. (Pet’r 56.1 ¶ 20).
B.

Procedural Background
Petitioner brought the instant action against Respondent on

February 13, 2018. (Dkt. #1). In response to this Court’s May 11, 2018 Order
(Dkt. #9), on May 25, 2018, Petitioner filed a motion for summary judgment
and supporting papers (Dkt. #12-17). In addition to seeking to confirm the
arbitration award, and to include post-judgment interest at the statutory rate, 2
Petitioner asks this Court to award $4,186.00 in attorneys’ fees and $508.97 in
legal costs. (Pet’r Br. 7).
DISCUSSION
A.

The Court Confirms the Arbitration Award
1.

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.

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Under 28 U.S.C. § 1961, awards of post-judgment interest in actions to confirm
arbitration are mandatory. See, e.g., Trs. of N.Y.C. Dist. Council of Carpenters Pension
Fund, Welfare Fund, Annuity Fund v. DV I, LLC, No. 17 Civ. 7367 (PAE), 2018 WL
461244, at *6 (S.D.N.Y. Jan. 18, 2018).

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574, 578 (1960)). 3 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.C. 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
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

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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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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
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).
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2.

Analysis

Viewed in light of the LMRA, the undisputed facts of this case make plain
that the Court must confirm the Award. The CBA required Respondent to
notify Petitioner of the awarding of any contract to perform Covered Work. In
addition, the CBA entitled Petitioner to pursue arbitration if Respondent failed
to so notify. Petitioner determined that Respondent failed to notify Petitioner of
the Covered Work located at 435 West 116th Street on August 9, 2016.
Petitioner filed a Demand for Arbitration, and served Respondent with a Notice
of Intention to Arbitrate. On the basis of the CBA and the unopposed
testimony of Charles Virginia, Esq., appearing on behalf of Petitioner, the
arbitrator found that Respondent “violated the Collective Bargaining Agreement
when it failed to notify [Petitioner] of [the covered] job.” (Award 2). The
arbitrator rendered a written decision directing Respondent to pay a total
amount of $4,413.90 for wages, fringe benefits, and promotional fund
contributions for 35 hours, as well half of the arbitrator’s fee. (See id.).
Put simply, the arbitrator properly construed and applied the CBA when
it issued the Award. The LMRA, in turn, requires the Court to confirm the
Award.
B.

The Court Grants Petitioner’s Application for Attorneys’ Fees and
Costs
1.

Applicable Law

“Generally, ‘in a federal action, attorney’s fees cannot be recovered by the
successful party in the absence of statutory authority for the award.’” Trs. of
the N.Y.C. Dist. Council of Carpenters Pension Fund v. Formula 1 Builders, LLC,
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No. 17 Civ. 1234 (GHW), 2017 WL 1483369, at *4 (S.D.N.Y. Apr. 25, 2017)
(quoting Int’l Chem. Workers Union, Local No. 227 v. BASF Wyandotte Corp., 774
F.2d 43, 47 (2d Cir. 1985)). And “Section 301 of the LMRA does not provide for
the recovery of attorneys’ fees.” Id. However, an award of attorneys’ fees and
court costs is proper when consistent with the parties’ contractual obligations
under the CBA. See N.Y.C. Dist. Council of Carpenters v. JFD Sales Consulting
Servs. Corp., No. 17 Civ. 3733 (LGS), 2017 WL 4736742, at *2 (S.D.N.Y.
Oct. 19, 2017). When the contract requires payment, parties may recover
attorney’s fees in accordance with its terms.
In addition, a court may “exercise its inherent equitable powers to award
attorney’s fees when opposing counsel acts in bad faith.” N.Y.C. Dist. Council of
Carpenters v. Gen-Cap Indus., Inc., No. 11 Civ. 8425 (JMF), 2012 WL 2958265,
at *5 (S.D.N.Y. July 20, 2012). “In confirmation proceedings, ‘the guiding
principle has been stated as follows: [W]hen a challenger refuses to abide by
an arbitrator’s decision without justification, attorney’s fees and costs may
properly be awarded.’” Trs. of the N.Y.C. Dist. Council of Carpenters Pension
Fund, Welfare Fund, Annuity Fund, Apprenticeship, Journeyman, Retraining,
Educ. & Indus. Fund v. Mountaintop Cabinet Mfr. Corp., No. 11 Civ. 8075 (JMF),
2012 WL 3756279, at *4 (S.D.N.Y. Aug. 29, 2012) (quoting N.Y.C. Dist. Council
of Carpenters Pension Fund v. Angel Const. Grp., LLC, No. 08 Civ. 9061 (RJS),
2009 WL 256009, at *2 (S.D.N.Y. Feb. 3, 2009)).
Determining whether an attorney’s fee is reasonable requires a court to
assess that attorney’s hourly rate and the number of hours she billed at that
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rate. “A reasonable hourly rate is ‘what a reasonable, paying client would be
willing to pay.’” N.Y.C. & Vicinity Dist. Council of Carpenters v. Plaza Constr.
Grp., Inc., No. 16 Civ. 1115 (GHW), 2016 WL 3951187, at *2 (S.D.N.Y. July 19,
2016) (quoting Watkins v. Smith, No. 12 Civ. 4635 (DLC), 2015 WL 476867, at
*3 (S.D.N.Y. Feb. 5, 2015)). An hourly rate is considered reasonable when it is
comparable to the prevailing rates in the community for similar services by
lawyers of commensurate skill. Trs. of N.Y.C. Dist. Council of Carpenters
Pension Fund v. Dejil Sys., Inc., No. 12 Civ. 5 (JMF), 2012 WL 3744802, at *4
(S.D.N.Y. Aug. 29, 2012). And “[h]ours that are excessive, redundant, or
otherwise unnecessary, are to be excluded from the calculation of a reasonable
fee.” Plaza Constr. Grp., 2016 WL 3951187, at *2 (internal quotation marks
and citation omitted).
As for costs, judges in this District “routinely permit[ ]” attorneys to
recoup “filing fees, service of process fees, charges for delivery of the summons
and petition to the process server, and for service of orders and motion papers
on” an opposing party. Plaza Constr. Grp., 2016 WL 3951187, at *2.
2.

Analysis

Petitioner seeks $4,694.97 in attorneys’ fees and costs. Because
Respondent agreed to a CBA that specified for the recovery of fees and costs in
these circumstances; failed to participate in the initial arbitration after
receiving notice; and did not oppose the Petitioner’s application for
confirmation of the arbitration award, the Court concludes that Petitioner is
entitled to recover its fees and costs from the instant action. And because the
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fees and costs Petitioner has requested are reasonable, the Court grants its
request in full.
First, the requested $4,186.00 fee is reasonable. In support of that
request, Petitioner submitted attorney time records documenting the hours
worked and activities performed in support of this action. (See Time Sheets). A
total of 21.70 hours of work was completed by one associate, who billed at
$250 per hour, one “of counsel,” who billed at $250 and $300 per hour, and
several legal assistants, who billed at $90 and $100 per hour. (See id.). On
review of the contemporaneous time records, compared against the prevailing
rates in the community, the amounts requested are reasonable. See, e.g., Trs.
of the N.Y.C. Dist. Council of Carpenters Pension Fund v. Coastal Envtl. Grp.,
Inc., No. 16 Civ. 6004 (GHW), 2016 WL 7335672, at *4 (S.D.N.Y. Dec. 16, 2016)
(noting, in 2016, that rates $300 per hour for “of counsel,” $225 per hour for
associates and law clerks, and $100 per hour for paralegals were reasonable).
In addition, other judges in the Second Circuit have awarded similar fees in
confirmation proceedings for Virginia & Ambinder, LLP (“V&A”) attorneys and
legal assistants. See, e.g., Trs. of N.Y. Dist. Council of Carpenters Pension Fund
v. Metro. Fine Mill Work Corp., No. 14 Civ. 2509 (PAE), 2015 WL 2234466, at *5
(S.D.N.Y. May 12, 2015) (approving rates of $225 for V&A’s associates and
$100 for its legal assistants). This Court finds that the billing rate and hours
are reasonable and grants the application for $4,186.00.
This Court also finds that Petitioner’s request for $508.97 in costs is
reasonable. This figure consists primarily of the $400.000 court filing fee and
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$80.00 court service fee, along with miscellaneous mailing costs. (See Time
Sheets). “Recovery of such costs is routinely permitted.” Plaza Constr. Grp.,
Inc., 2016 WL 3951187, at *2.
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 and against Respondent in the amount of $9,108.87,
which consists of the arbitration award of $4,413.90 plus $4,694.97 in
attorneys' fees and costs. Post-judgment interest will accrue at the statutory
rate pursuant to 28 U.S.C. § 1961.
The Clerk of Court is directed to terminate all pending motions, adjourn
all remaining dates, and close this case.
SO ORDERED.
Dated:

October 11, 2018
New York, New York

__________________________________
KATHERINE POLK FAILLA
United States District Judge

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