Drywall Tapers and Pointers of Greater New York Local Union 1974, Affiliated with International Union of Allied Painters and Allied Trades, AFL-CIO et al v. KPM Construction

Filing 19

OPINION & ORDER: For the reasons stated above, the Court confirms the Award in favor of petitioners and issues judgment in the amount of $24,312.22, plus interest at a rate of 5.25% from the date of the Award through the date of this j udgment, plus attorneys' fees and costs in the amount of $1,975. The Clerk of Court is respectfully directed to close this case and enter judgment in favor of petitioners as outlined above. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 3/26/2024) (va) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DRYWALL TAPERS AND POINTERS OF GREATER
NEW YORK LOCAL UNION 1974, ET AL.,
-v-

Petitioners,

23 Civ. 7105 (PAE)
OPINION & ORDER

KPM CONSTRUCTION a/k/a
KPM CONSTRUCTION CORP.,
Respondent.
PAUL A. ENGELMAYER, District Judge:
This decision resolves a petition to confirm an arbitral award. Petitioners are the Drywall
Tapers and Pointers of Greater New York Local Union 1974, affiliated with the International
Union of Allied Painters and Allied Trades, AFL-CIO (the "Union"); and the Trustees of the
Drywall Tapers and Pointers Local Union 1974 Benefit Funds (the "Funds"). Respondent KPM
Construction ("KPM") is an employer bound by a collective bargaining agreement with the
Union.
On August 11, 2023, petitioners filed a petition (the "Petition") to confirm an arbitral
award issued against respondent (the "Award"), and to recovery attorneys' fees and costs
incuTI'ed in bringing this action. Dkt. I ("Pet."). The Petition was filed under Section 502(a)(3)
of the Employment Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(3); Section
301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C § 185; and Section 9
of the Federal Arbitration Act ("FAA"), 9 U.S.C. § 9.
For the following reasons, the Court confirms the Award, and grants petitioners' request
for attorneys' fees and costs.

I.

Background 1
A.

The Collective Bargaining Agreement

At all times relevant to this Petition, KPM was party to a collective bargaining agreement
("CBA") with the Union. Dkt. 3, Ex. B ("CBA"). As relevant here, Article XX of the CBA
requires the employer (here, KPM) to pay specified fringe benefits to the Funds on behalf of
each employee employed by KPM and covered by the Agreement. CBA at 34-35. Article XIII,
which sets out a grievance procedure under the CBA, provides in Section 6, Violation 9 that a
"[f]ailure to pay wages and/or fringe benefits or payment in cash for wages and/or fringe
benefits" by the employer will result in a fine and award of liquidated damages. Id. at 23-24.
Further, the grievance procedure contemplated in Articles XIII and XIV of the CBA
directs that complaints or disputes be submitted to the Joint Trade Board for final, binding
decisions. Id. at 24-25. The Joint Trade Board is authorized under the CBA to "render an award
which may include the impositions of fines and/or penalties," as set out "in the schedule of
standardized fines which are made a part of [Article XIII, Section 6 of the CBA]." Id. at 20.
B.

The Arbitral Award

After a dispute arose in which the Union claimed KPM failed to pay required fringe
benefits on behalf of seven Union members, the Union served KPM with Notices of Intention to
Arbitrate before the Joint Trade Board on April 13, 2023. See Dkt. 3, Ex. A ("Award Dec'n") at
1. On April 27, 2023, the Joint Trade Board held a hearing, but no representative from KPM
appeared. Id. at 1-2. After review of the Union's submissions documenting the benefits it
claimed KPM had failed to pay to the Funds, the Board "deliberated and found KPM guilty for
failure to submit fringe benefits, in violation of Article XX and Article XIII Section 6 Violation

1

The following undisputed facts are derived from the Petition; petitioners' memorandum oflaw,
Dkt. 1, Ex. 1 ("Pet. Br."); and the Arbitration Decision and Award dated May 3, 2023.
2

9 of the Agreement." Id. at 3. The Joint Trade Board ordered KPM to pay, within 10 days of
receipt of the decision, $10,310.22 to the Funds representing the unpaid fringe benefits, and a
$14,000 fine to the Joint Trade Board. Id. at 3-4.
The Award was served on KPM the day it was issued, on May 3, 2023. Pet. ,r 12. After
KPM failed to comply with the Award's terms, the Union served KPM with a demand letter. Id.

,r 13.

To date, KPM has failed to comply with the Award, which itself has not been vacated,

modified, or corrected. Id.

C.

,r,r 14, 17.

This Action

On August 11, 2023, after KPM failed to comply with the Award, petitioners filed this
action, seeking confirmation of the Award in its entirety, KPM's payment of$10,312.22 in
benefits to the Funds, KPM's payment of the $14,000 fine to the Joint Trade Board, plus their
attorneys' fees and costs associated with bringing this action. Pet. at 4; Pet. Br. at 6. Petitioners
filed a declaration in support of their Petition as well as attached exhibits. Dkt. 3.
On September 11, 2023, petitioners effected service on KPM. Dkt. 11. On September
14, 2023, the Court ordered petitioners to file and serve any additional materials in support of the
petition by September 22, 2023, with KPM's opposition due on October 6, 2023. Dkt. 12. The
Court later granted an extension of time to file additional materials to October 6, 2023, making
KPM's response due on October 20, 2023. Dkt. 14.
On September 29, 2023, petitioners filed an affidavit and affirmation in further support of
the petition, as well as an attached exhibit, largely addressing attorneys' fees. Dkts. 16-17. That
same day, petitioners filed an affidavit of service of the affirmation on KPM. Dkt. 18.
To date, KPM has not appeared in this action or taken any steps in response to the
Petition.

3

II.

Discussion
The Court treats this Petition for confirmation of an arbitral award as a motion for

summary judgment. See D.H Blair & Co. v. Gottdiener, 462 F.3d 95, 109-10 (2d Cir. 2006).
Because the Petition is unopposed, the Court treats it as an unopposed motion for summary
judgment. See id.

A.

Applicable Legal Standards

"Arbitration awards are not self-enforcing"; "they must be given force and effect by
being converted to judicial orders by courts." Power Partners MasTec, LLC v. Premier Power
Renewable Energy, Inc., No. 14 Civ. 8420 (WHP), 2015 WL 774714, at *1 (S.D.N.Y. Feb. 20,

2015) (quoting D.H Blair, 462 F.3d at 104) (internal quotation mark omitted). The FAA
provides a "'streamlined' process for a party seeldng 'a judicial decree confirming an award."'
Salzman v. KCD Fin., Inc., No. 11 Civ. 5865 (DLC), 2011 WL 6778499, at *2 (S.D.N.Y. Dec.

21, 2011) (quoting Hall St. Assocs. L.L.C. v. Mattel, Inc., 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, 462 F.3d at 110
(citations and internal quotation marks omitted). In this Circuit, "[t]he showing required to avoid
summary confirmation of an arbitration award is high." Willemijn Houdstermaatschappij, BV v.
Standard Microsystems Corp., 103 F.3d 9, 12 (2d Cir. 1997) (quoting Ottley v. Schwartzberg,

819 F.2d 373,376 (2d Cir. 1987)); see also Duferco Int'! Steel Trading v. T. Klaveness Shipping
AIS, 333 F.3d 383, 388 (2d Cir. 2003) ("It is well established that courts must grant an

[arbitrator's] decision great deference.").
Review of an arbitral award by a district court "is 'severely limited' so as not unduly to
frustrate the goals of arbitration, namely, to settle disputes efficiently and avoid long and
4

expensive litigation." Salzman, 2011 WL 6778499, at *2 (quoting Willemijn, 103 F.3d at 12).
"[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.'" Landy Michaels Realty
Corp. v. Local 32B-32J, Serv. Emps. Int'! Union, AFL-CIO, 954 F.2d 794, 797 (2d Cir. 1992)
(quoting Andros Compania Maritima, S.A. v. Marc Rich & Co., 579 F.2d 691, 704 (2d Cir.
1978)).
To prevail on a motion for summary judgment, the movant must "show[ ] that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56(a). In making this determination, the Court must view all facts "in the
light most favorable" to the non-moving party. Tolan v. Cotton, 134 S. Ct. 1861, 1866 (2014)
(citations omitted). In determining whether there are genuine issues of material fact, the Court is
"required to 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) (quoting Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks
omitted)).
"Even 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 matter oflaw." Vt.
Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241,242 (2d Cir. 2004); see also Amaker v.
Foley, 274 F.3d 677,681 (2d Cir. 2001). In reviewing an unopposed motion for confirmation of
an arbitral award, 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.

5

D.H. Blair, 462 F.3d at 110 (quoting Vt. Teddy Bear Co., 373 F.3d at 244). Where "[t]here is no
indication that the arbitration decision was made arbitrarily, exceeded the arbitrator's
jurisdiction, or otherwise was contrary to law ... a court must grant an order to confirm an
arbitration award upon the timely application of a party." Herrenknecht Corp. v. Best Rd.

Boring, No. 06 Civ. 5106 (JFK), 2007 WL 1149122, at *2 (S.D.N.Y. Apr. 16, 2007) (citing 9
U.S.C. § 9; Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984)).

B.

Confirming the Award

On the basis of the Award and petitioners' submissions, and having undertaken the
limited review that is appropriate here, the Court finds that petitioners have shown that there is
no material issue of fact for trial, warranting summary judgment. The Joint Trade Board acted
within the scope of the authority granted to it by the parties. See CBA Arts. XIII, XVI. The
Joint Trade Board found KPM to be delinquent in fringe benefit payments due under the CBA,
as established by petitioners' submissions. Award Dec'n at 3. The Joint Trade Board directed
KPM to pay the amount of the delinquent contributions as well as a $14,000 fine to the Joint
Trade Board. Id. at 3-4. The Court concludes that there was at least a "barely colorable
justification for the outcome reached." Landry Michaels Realty Corp., 954 F.2d at 797.
Accordingly, the Court confirms the arbitral award in favor of petitioners.

C.

Attorneys' Fees and Costs

Petitioners also seek to recover attorneys' fees of$1440.00 and costs of$535.00, both
incurred in bringing this action. Dkt. 17 at 3-4.
Petitioners are entitled to these awards. ERISA provides for "reasonable attorney's fees
and costs of the action, to be paid by the defendant." 29 U.S.C. § l 132(g). Furthermore, "courts
have routinely awarded attorneys['] fees in cases where a party merely refuses to abide by an
arbitrator's award without challenging or seeking to vacate it through a motion to the court."
6

Trs. of the N.YC. Dist. Council of Carpenters Pension Fund v. All. Workroom Corp., No. 13

Civ. 5096 (KPF), 2013 WL 6498165, at *6 (S.D.N.Y. Dec. 11, 2013) (quotingAbondolo v. H &
MS. Meat Corp., No. 07 Civ. 3870 (RJS), 2008 WL 2047612, at *4 (S.D.N.Y. May 12, 2008))

(internal quotation marks omitted).
Here, KPM failed to remit delinquent contributions, appear at the hearing before the Joint
Trade Board in the first place, abide by the Award, or respond to the Petition seeking to confirm
the A ward. It is therefore appropriate to award petitioners reasonable attorneys' fees and costs
incurred in pursuing this action. In support of their request for fees and costs, petitioners
submitted an affirmation listing the completed tasks, attorney's hourly rate, and billed hours.
Dkt. 17. The requested attorneys' fees are reasonable and in line with other attorneys' fees
awarded in similar actions in this District. See Trs. ofN.YC. Dist. Council of Carpenters
Pension Fund, 2013 WL 6498165, at *7 (collecting cases). Petitioners' submissions also invoice

the service fees and court filing fees incurred in bringing this action. See Dkt. 17, Ex. A. The
Court therefore awards petitioners $1,975 in attorneys' fees and costs.
CONCLUSION

For the reasons stated above, the Court confirms the Award in favor of petitioners and
issues judgment in the amount of $24,312.22, plus interest at a rate of 5.25% from the date of the
Award through the date of this judgment, plus attorneys' fees and costs in the amount of$1,975.
The Clerk of Court is respectfully directed to close this case and enter judgment in favor of
petitioners as outlined above.

7

SO ORDERED.
Paul A. Engelmayer
United States District Judge
Dated: March 26, 2024

New York, New York

8