District Council No. 9 v. Apc Painting, Inc.

• Decision Date: 30 June 2003
• Docket Number: No. 01 Civ.9093 GWG.,01 Civ.9093 GWG.
• Citation: 272 F.Supp.2d 229
• Parties: DISTRICT COUNCIL NO. 9, Plaintiff, v. APC PAINTING, INC., APC Painting, Co., APC Construction Co., Apollo Painting Co., Apollo Construction Co., Apollo Construction Services Corp., and Gregory Fucci, Defendants.
• Court: U.S. District Court — Southern District of New York

Page 229

272 F.Supp.2d 229

DISTRICT COUNCIL NO. 9, Plaintiff, v. APC PAINTING, INC., APC Painting, Co., APC Construction Co., Apollo Painting Co., Apollo Construction Co., Apollo Construction Services Corp., and Gregory Fucci, Defendants.

No. 01 Civ.9093 GWG.

United States District Court, S.D. New York.

June 30, 2003.

Howard G. Wien, Koehler & Isaacs, LLP, New York City, for Plaintiff.

Lewis Goldberg, Stuart Weinberger, Goldberg and Weinberger, LLP, New York City, for Defendants.

OPINION AND ORDER

GORENSTEIN, United States Magistrate Judge.

Plaintiff, District Council No. 9 ("the Union"), has brought this action under section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, to enforce arbitration awards rendered pursuant to a collective bargaining agreement. The Union has named as defendants APC Painting, Inc., APC Painting, Co., APC Construction Co. (collectively the "APC entities"); Apollo Painting Co., Apollo Construction Co., Apollo Construction Services Corp. (collectively the "Apollo entities"); and Gregory Fucci, who allegedly owns and controls all of these entities. The defendants have moved to dismiss the complaint or for judgment on the pleadings as to Fucci and the Apollo entities. The Union has moved for partial summary judgment to confirm the arbitration awards against the APC entities. The parties have consented to disposition of this action by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, defendants' motion for judgment on the pleadings is denied and plaintiff's motion for partial summary judgment is granted.

I. BACKGROUND

A. The Parties

The Union is a "labor organization" within the meaning of 29 U.S.C. § 152(5). The Union represents painters and other tradespeople throughout New York State. See Second Amended Complaint, filed October 29, 2002 (Docket # 34) ("Second Amended Complaint"), ¶ 4; Statement of Material Facts about which Movant District Council No. 9 contends there are no genuine issues, undated ("Pl. 56.1 Statement") (reproduced in Notice of Motion, filed February 28, 2003 (Docket # 43)), ¶ 1. In 1996, the Union entered into a trade agreement with the Association of Master Painters and Decorators of New York, Inc. ("Association"), governing the working relationship between the Union's members and employers in the New York City area for the years 1996 to 2000. See Second Amended Complaint, ¶¶ 8, 9.

APC Painting, Inc., is a construction and painting company that does business in the New York City area and is an "employer" within the meaning of 29 U.S.C. § 152(2). Second Amended Complaint, ¶ 6; Pl. 56.1 Statement, ¶ 4. APC Painting, Inc., was a signatory to the 1996 agreement between the Union and the Association, see 1996 Agreement Signature Page, dated June 8, 1996 (reproduced in Pl. 56.1 Statement, Ex. B), at 93, and signed a letter agreeing to be bound by a subsequent agreement between the Union and the Association reached in 2000. See Letter to District Council No. 9 from Greg Fucci, dated June 5, 2000 (reproduced in Pl. 56.1 Statement, Ex. C), at 1.

The Union claims that APC Painting, Inc., APC Painting, Co., and APC Construction Co., are actually the same company operating under different names. See Second Amended Complaint, ¶ 6; Pl. 56.1 Statement, ¶ 10. The Union also alleges that Fucci owns and operates all of the APC entities. See Pl. 56.1 Statement, ¶ 12. The defendants dispute both allegations, largely on the ground that some of the entities named do not exist. See Defendants' Rule 56.1 Statement in Opposition to Plaintiff's Motion for Summary Judgment, dated March 17, 2003 ("Def. 56.1 Resp.") (reproduced in Affidavit in Support of Defendants' Motion and in Opposition to Plaintiffs' [sic] Motion for Summary Judgment, filed March 18, 2003 (Docket # 46) ("Fucci Aff.")), ¶¶ 1, 3.

B. The Arbitration Procedures

The agreement between the Union and the Association establishes procedures for any disputes that arise between the parties. Specifically, the agreement establishes a Joint Trade Committee ("JTC") to arbitrate all disputes arising under the agreement. See Trade Agreement between District Council No. 9 and the Association of Master Painters and Decorators of New York, Inc., and The Association of Wall, Ceiling, & Carpentry Industries of New York, Inc., and The Window and Plate Glass Dealers Association, effective June 8, 1996 through May 31, 2000, ("Trade Agreement") (reproduced in Pl. 56.1 Statement, Ex. B), Art. XI, Secs. 1, 3. All grievances are heard by the JTC, with two members selected by the Union and two by the Association. See id., Art. XI, Secs. 1, 3. Additionally, the agreement creates a Joint Trade Board, consisting of the President of the Association and the Business Manager/Secretary-Treasurer of the Union. See id., Art. XI, Sec. 2. If the JTC deadlocks, the Joint Trade Board decides the remaining disputes. See id., Art. XI, Sec. 9. In the event that the Joint Trade Board cannot reach a decision, the matter is submitted for resolution to the American Arbitration Association. See id., Art. XI, Sec. 13.

C. The September 7, 2000 Arbitration

On September 7, 2000, the Union presented a grievance to the JTC, alleging that "APC Construction" had failed to properly pay wages to and fringe benefits on behalf of a member of the Union, Tomasz Oginski. See Pl. 56.1 Statement, ¶ 16. The JTC panel found against "A.P.C. Construction" and ordered a "make whole" remedy. See In the Matter of the Arbitration between A.P.C. Construction and District Council No. 9, dated September 7, 2000 (reproduced in Pl. 56.1 Statement, Ex. F), at 1. On October 18, 2000, the Union requested a clarification of the meaning of the make whole remedy. See Pl. 56.1 Statement, ¶ 21. By letter sent to Fucci, the JTC responded that the remedy was payment of the "difference between the apprentice rate and the journeyman rate." See Letter from Alexander E. Gettler to Greg Fucci, President APC Construction, dated October 19, 2000 (reproduced in Pl. 56.1 Statement, Ex. H), at 1.

Subsequently, the Union and the defendants disputed what amount was owed under the September 7, 2000, decision. See Pl. 56.1 Statement, ¶ 23. By letter of February 8, 2001, the JTC again clarified its award, stating that APC owed $9,413.50 in wages to Oginski and $4,295.90 to the fringe benefits fund on Oginski's behalf. See Letter from Alexander E. Gettler to Greg Fucci, dated February 8, 2001 (reproduced in Pl. 56.1 Statement, Ex. J), at 1. The Union alleges that the defendants are in partial compliance with this award, having paid $5,200 towards Mr. Oginski's wages, but still owe $4,213.50 in wages and $4,295.90 in fringe benefit contributions. See Pl. 56.1 Statement, ¶¶ 25, 28.

D. The October 2000 Arbitration

Another arbitration between the Union and "APC Construction" was held on October 18, 2000. See Pl. 56.1 Statement, ¶ 29. The Union alleged that the company failed to make proper contributions to the employee fringe benefit trust fund on behalf of three members of the Union—specifically, that the company's contributions on behalf of the three employees had been made at the "market recovery" rate ($6.30 per hour) instead of the "joumeyperson" rate ($14.06 per hour). See Pl. 56.1 Statement, ¶¶ 30, 33. The JTC found in favor of the Union and ordered "APC" to pay the difference between the two rates. See In the Matter of the Arbitration between APC and District Council No. 9, undated (reproduced in Pl. 56.1 Statement, Ex. N), at 1. The award required the company to pay the difference between the two rates ($7.76 per hour) for 56 hours on behalf of two of the employees and 42 hours for the other. See id. The total owed under this award amounted to $1,195.04. The Union originally claimed that the defendants have paid nothing to satisfy the October 2000 JTC award. See Pl. 56.1 Statement, ¶ 35. In response, the defendants supplied an affidavit from one of the workers at issue, Patrick Somma, stating that the contributions in his name have been made. See Affidavit of Patrick Somma, dated March 17, 2003 ("Somma Aff.") (reproduced in Fucci Aff.), ¶ 2. By way of reply, the Union now admits that the defendants have made some payments pursuant to the October 2000 Arbitration, but not all of the required payments. See Affidavit of Gregory Vagelatos, dated July 18, 2002 (reproduced in Reply Affirmation, filed April 3, 2003 (Docket # 47) ("Pl. Reply Aff."), Ex. H), ¶ 5.

E. The February 2001 Lawsuit

An arbitration to determine three additional grievances brought by the Union was originally scheduled to occur on January 23, 2001. See Letter from Alexander E. Gettler to Lewis Goldberg, dated February 15, 2001 (reproduced in Pl. Reply Aff., Ex. B), at 1-2. The defendants objected to the arbitration proceedings after witnessing all four arbitrators exit the office of the Union's Business Manager and Secretary-Treasurer, Sandy Vagelatos, immediately prior to the hearing. See Fucci Aff., ¶ 22. The defendants refused to take part in the arbitration and defendants' counsel twice wrote to the JTC alleging improprieties. See Letter from Alexander E. Gettler to Lewis Goldberg, dated February 15, 2001 (reproduced in Pl. Reply Aff., Ex. B), at 1-2. The JTC responded by rescheduling the arbitration for February 22, 2001, and by replacing all four arbitrators from the original panel. See id.

On February 20, 2001, "APC Painting Company" filed suit seeking a temporary restraining order to prevent the February 22 arbitration from occurring. See APC Painting Company v. District Council 9, et al., 01 Civ. 1250(BDP) (S.D.N.Y.2001). The defendants argued that the arbitration should be stayed and the court should reform the agreement between the Union and the Association to prevent the Union from selecting arbitrators for JTC panels. See Transcript of Hearing before the Honorable Barrington D. Parker, dated February 20, 2001 ("Tr.") (reproduced in Pl. Reply Aff., Ex....