Brown, et al v. C. Volante Corp.

Decision Date01 August 1999
Docket NumberDocket No. 99-7109
Citation194 F.3d 351
Parties(2nd Cir. 1999) JOHNNIE BROWN, THEODORE KING, ALDO COLUSSI, GEORGE FINCH, CHESTER BROMAN, JOSEPH FERRARA, FRANK FINKEL, and ANIELLO MADONNA, as Trustees and Fiduciaries of the Local 282 Welfare, Pension Annuity and Job Training Trust Funds, Plaintiffs-Appellees, v. C. VOLANTE CORP., Defendant-Appellant
CourtU.S. Court of Appeals — Second Circuit

Appeal from orders entered in the United States District Court for the Eastern District of New York (Nina Gershon, Judge) granting appellees' motion for summary judgment and awarding damages to appellees. We hold that the district court had subject matter jurisdiction over appellees' claims for an employer's breach of adopted collective bargaining agreements to contribute to a trust fund.

STACEY E. ZISKIN, Law Offices of Robert M. Ziskin (Robert M. Ziskin, of counsel), Commack, New York, for Defendant-Appellant.

EUGENE S. FRIEDMAN, Friedman & Levine (William K. Wolf, Michael Bauman, William Anspach, of counsel), New York, New York, for Plaintiffs-Appellees.

Before: WINTER, Chief Judge, KEARSE, and McLAUGHLIN, Circuit Judges.

WINTER, Chief Judge:

C. Volante Corp. appeals from Judge Gershon's orders granting appellees' motion for summary judgment and awarding damages. Appellant argues that: (i) the district court lacked subject matter jurisdiction over appellees' claims because they arose from an alleged breach of unsigned collective bargaining agreements, (ii) the district court erred in determining that there were no triable issues as to whether appellant manifested its intent to adopt unsigned collective bargaining agreements, and (iii) the district court made several erroneous findings in connection with its damages award. We affirm.

BACKGROUND

Appellant is a New York truck rental company. Appellees are the Trustees of the Local 282 Welfare, Pension Annuity and Job Training Trust Funds (the "Fund"), which were established pursuant to collective bargaining agreements ("CBA") between Building Material Local 282 of the International Brotherhood of Teamsters (the "Union") and various employers.

Appellant was a signatory to a CBA in effect from July 1, 1987 to June 30, 1990. It did not, however, sign two subsequent CBAs, governing the period July 1, 1990 to June 30, 1996. Pursuant to all the CBAs, employers agree to contribute a fixed dollar amount to the Fund contingent upon the number of hours its employees work.

Although appellant did not sign the CBAs effective from July 1, 1990 to June 30, 1996, it submitted monthly remittance reports during this period. These sixty-one reports detailed hours worked by appellant's employees and its contributions to the Fund as determined by the hours worked. Each report was accompanied by the payment calculated in the report. Each of the reports was signed by appellant's then-Chief Executive Officer as "Pres.," and most of them contained a typewritten phrase indicating it was submitted "[i]n Accordance with the terms of the standard Industry Agreement with Local 282, I.B.T."

The parties do not dispute that appellant's payments to the Fund accorded with the rates set forth in the operative CBA. Rather, the Trustees' claim stems from appellant's alleged failure to make payments to the Fund for all of its employees.

The Trust Agreement, incorporated by reference in the CBAs, provides for periodic auditing of an employer's records concerning payments to the Fund. During November and December, 1993, the Trustees conducted an audit of appellant's records covering the period from May 30, 1990 through September 30, 1993. Appellant cooperated in this audit even though most of it concerned months during which appellant was not a signatory to a CBA. The Trustees' resulting audit report showed that appellant owed more than $78,000.00 to the Fund.

After receiving the audit report, Rita Volante wrote to the Trustees on appellant's behalf. She framed the "main issue" as whether appellant owed contributions for work done by "outside trucks" and noted that "we were under the assumption that they were paying their own union benefits." Volante did not dispute that appellant had an obligation to make payments to the Fund or that it owed contributions for the outside work. Instead, she expressly acknowledged "a responsibility to the funds" that "[w]e are not skirting." Nevertheless, Volante offered only $35,000.00 as the amount appellant could afford and noted, as a thought for consideration, that appellant had not signed a CBA since 1989.

The Trustees rejected appellant's offer and brought the instant suit. Appellant thereafter moved to dismiss the action for lack of subject matter jurisdiction, and appellee moved for summary judgment. Judge Gershon denied appellant's motion to dismiss, granted appellees' summary judgment motion, and referred the case to Magistrate Judge Pohorelsky for an inquest. In a December 22, 1998 Memorandum and Order, Judge Gershon adopted Magistrate Judge Pohorelsky's recommendation to award appellees $248,514.03 in damages, interest, attorney's fees and costs. This appeal followed.

DISCUSSION
a) Subject Matter Jurisdiction

Relying on Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co., 484 U.S. 539 (1988), appellant argues that the district court lacked subject matter jurisdiction over the Trustees' claims for benefit fund contributions owing on work performed during a period when appellant was not bound by a collective bargaining agreement. We disagree.

The Trustees brought the instant claims pursuant to Sections 502(g)(2) and 515 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. 1132(g)(2), 1145, and Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. 185. In Advanced Lightweight, the Supreme Court held that ERISA Sections 502(g)(2) and 515 do not confer subject matter jurisdiction over claims "to determine whether an employer's unilateral decision to refuse to make postcontract contributions constitutes a violation of the [National Labor Relations Act]." 484 U.S. at 549. According to the Court, Sections 502(g)(2) and 515 confer jurisdiction only over claims for "promised contributions," not over unfair labor practice claims that an employer has refused to bargain in good faith by failing to make postcontract benefit plan contributions before negotiations for a new contract reached an impasse. See Advanced Lightweight, 484 U.S. at 548-49. The decision, therefore, stands only for the unremarkable proposition that the National Labor Relations Board generally has exclusive jurisdiction over unfair labor practice claims. See NLRB v. Katz, 369 U.S. 736, 743 (1962) (holding that employer's failure to honor terms of expired CBA during negotiations on new CBA constitutes unfair labor practice); Advanced Lightweight, 484 U.S. at 543 n.4 ("As a general rule, federal courts do not have jurisdiction over" unfair labor practice claims.) (internal quotation marks omitted); but see id. (noting that federal courts have jurisdiction over unfair labor practice claims that are "collateral" to claims over which there is an independent basis for jurisdiction).

Although it is true that the Trustees' claims arise from appellant's alleged failure to contribute to the Fund after the signed CBA expired, this does not render them per se unfair labor practice claims over which the district court lacks jurisdiction under Advanced Lightweight. The Trustees are not arguing that appellant has unlawfully refused to bargain by making unilateral changes in working conditions before reaching an impasse over a new CBA. Rather, the Trustees claim that appellant promised to contribute to the Fund by adopting the two CBAs that it never signed. Appellees' claims are thus clearly for "contributions [owing] in accordance with the terms and conditions of . . . [a collective bargaining] agreement," 29 U.S.C. 1145, and "violation[s] of contracts between an employer and a labor organization," 29 U.S.C. 185(a), over which the district court has jurisdiction. See Advanced Lightweight, 484 U.S. at 547 ("The liability created by 515 may be enforced by the trustees of a plan by bringing an action in federal district court . . . ."); 29 U.S.C. 185(a).

b) Summary Judgment

Appellant next argues that the district court improperly granted summary judgment because there are genuine issues of fact as to whether appellant adopted the two unsigned CBAs. We disagree.

We review the grant of summary judgment de novo. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 20203 (2d Cir. 1995). A moving party is entitled to summary judgment when, after reviewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Tops Mkts., Inc. v. Quality Mkts., Inc., 142 F.3d 90, 95 (2d Cir. 1998). A dispute is not "genuine" unless "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The Trustees satisfied their initial burden to demonstrate the absence of a genuine issue of material fact as to whether appellant adopted the two unsigned CBAs. See FDIC v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (noting that "[a] movant for summary judgment 'always bears' . . . 'the initial responsibility of . . . demonstrat[ing] the absence of a genuine issue of material fact'") (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The sixty-one remittance reports -- most of which were expressly submitted "[i]n accordance with the terms of" the CBAs -- appellant's cooperation with the audit, its payment of union wages to employees, and Volante's letter to the Trustees acknowledging appellant's "responsibility to the funds," are sufficient, absent contrary...

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