Del Turco v. Speedwell Design

• Decision Date: 31 March 2009
• Docket Number: No. 02-cv-5369 (KAM).,02-cv-5369 (KAM).
• Citation: 623 F.Supp.2d 319
• Parties: Bruce DEL TURCO, et al., Plaintiffs, v. SPEEDWELL DESIGN, BFK Enterprise, LLC and Barry Kolsky Defendants.
• Court: U.S. District Court — Eastern District of New York

623 F.Supp.2d 319

Bruce DEL TURCO, et al., Plaintiffs, v. SPEEDWELL DESIGN, BFK Enterprise, LLC and Barry Kolsky Defendants.

No. 02-cv-5369 (KAM).

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

March 31, 2009.

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Charles R. Virginia, Barnes, Iaccarino, Virginia, Ambinder & Shepherd, PLLC, New York, NY, Ira R. Mitzner, Dickstein Shapiro LLP, Washington, DC, for Plaintiffs.

Paul A. Friedman, Blank Rome LLP, New York, NY, for Defendants.

MEMORANDUM & ORDER

MATSUMOTO, District Judge.

Plaintiffs in this action consist of the president of a labor organization, the Tile Setters and Tile Finishers Subordinate Union of New York and New Jersey of the International Union of Bricklayers and Allied Craftsman, in his official capacity ("Local 7" or "Union"), and trustees of the funds through which fringe benefits are provided to participants who are members of Local 7, in their official capacities ("Funds"). Defendants are Speedwell Design, BFK Enterprises, LLC, ("Speedwell") and its president and sole owner, Barry Kolsky. Speedwell is in the business of providing interior construction work.¹

Plaintiffs Union and Funds commenced this action against defendants, alleging that Speedwell failed to pay wages and make contributions to the funds pursuant to two sets of collective bargaining agreements entered into between the parties in 1997 and in 2001. Plaintiff Union alleges in its complaint that defendants' failure to pay union wages is in violation of § 301 of the Labor Management Relations Act, as amended, 29 U.S.C. § 185(a) (LMRA), and seeks unpaid wages, plus interest, from 1997 through the present. Plaintiff Funds claim that defendants' failure to contribute to benefit funds for covered work is in violation of the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C §§ 1001 et seq. (ERISA), and seek unpaid contributions, plus interest and liquidated damages, from 1997 through the present.

In their answer, defendants assert state law tortious inference counter-claims against the Funds and a claim for violation of § 8(b)(4)(ii)(B) of the National Labor Relations Act (NLRA), 29 U.S.C. § 158(b)(4)(ii)(B), against the Union.

Pending before the court are the following motions for summary judgment: 1) Defendants' motion for summary judgment that the 2001 Agreements are not collective bargaining agreements but single-project agreements, and are invalid for fraud in the execution; 2) Defendants' motion for summary judgment that the plaintiff Union failed to exhaust contractual remedies contained in the 2001 Agreements, is barred from bringing suit by the statute of limitations, and lacks associational standing to bring a claim on behalf of its members; 3) Defendants' motion for summary judgment that they are not obligated to make contributions to the funds; 4) Plaintiff Local Funds' motion for summary judgment, joined by the International Funds and the Union, that the auditor's findings are dispositive of damages for the period between February 20, 2001 and May 31, 2003; 5) Plaintiff Union's motion for summary judgment dismissing defendants' counter-claim pursuant to § 8(b)(4)(ii)(B) of the NLRA; 6) Plaintiff International Funds' motion for summary judgment that the defendants' tortious interference counter-claim is preempted by ERISA; 7) Plaintiff Local Funds' motion for summary judgment, joined by plaintiff International Funds, dismissing defendants' tortious interference claims. For the following reasons, and upon consideration of the parties' submissions, the motions before the court are granted in part and denied in part.

I. Background

The record before the court reflects the following summary of undisputed facts giving rise to the present action and the pending motions. The summary excludes any disputed issues of non-material fact and highlights any disputed issues of material fact.

A. The Parties

Local 7 is a labor organization as defined by the LMRA, 29 U.S.C. § 185, which represents tile setters and tile finishers throughout New York and New Jersey. (Union R. 56.1 Stmt. ¶ 1.) Pursuant to collective bargaining agreements with unions that merged to form plaintiff Local 7, union members participated in various employee benefit funds (together "the Funds" or "plaintiff Funds"). Relevant to this motion are the following plaintiff Funds: a) the Local 52 Pension Fund, the Local 52 Annuity Fund, and the Local 52 Health and Welfare Fund (together, the "Local 52 Funds"); b) the Local 77 Annuity Funds and the Local 77 Health and Welfare Fund (together, the "Local 77 Funds"); and c) the International Health & Welfare Fund (the "International Fund"). Following the filing of this lawsuit, the Local 52 Funds, and the Local 77 Funds merged into "Local Funds."

The plaintiffs in this action filed suit in their official capacities. To the extent that named plaintiffs suing in their official capacities no longer serve in a representative capacity of the Funds or Union, plaintiffs shall substitute new officials within fifteen days of the entry of this order. Fed. R.Civ.P. 25(c). James Bartalone is a trustee of the Local 52 Pension Fund and Bruce Del Turco is a management trustee of the Local Funds. (Del Turco Dep. 5-6, 11-12, 14-15.) Plaintiff Charles Hill was the President of Local 7 from 1993 until his retirement in 2007. (Hill Dep. 11-13.)

The defendants in this lawsuit, Speedwell and Speedwell's president and sole owner, Barry Kolsky (Kolsky Dep. 18-23), are engaged in the business of providing interior work, including tile work and flooring, to both residential and commercial customers in the New York, New Jersey and Connecticut metropolitan areas. (Am. Answer ¶ 111; Local Funds Ex. 1 at 50-53.)

B. Additional Background Facts

In addition to his role as a trustee of the Local 52 Pension Fund, Bartalone is a member of Local 7 and employed full-time by Local 7 as a business agent. (Bartalone Dep. 11-14.) The duties of business agents include organizing employees, monitoring jobs to ensure employers comply with the terms of their collective bargaining agreements, and obtaining employment for Local 7 members, who inform business agents when they are looking for work. (Bartalone Dep. 75-77; Larweth Dep. 17-19; Hill Dep. 17, 27.) Business agents reported to Charles Hill during his tenure as President of Local 7 from 1993 to 2007. (Bartalone Dep. 34-35; Hill Aff. ¶ 7.)

One way in which Bartalone organized employees was by being contacted by subcontractors that had successfully bid union jobs, upon which he would provide subcontractors with a copy of the standard form agreement and discuss the terms of the agreement with the subcontractor. (Bartalone Dep. 18-19.) There were other times that Bartalone was informed that a job was a union job from a third party, such as a subcontractor who lost a bid, and when Bartalone visited the jobsite he would find that non-union labor was being used. (Bartalone Dep. 25.) In those situations, Bartalone would alert the employers to the problem and attempt to organize the workers. (Bartalone Dep. 25.)

Bartalone used a pre-printed form agreement reached with the Tile Contractors Associations (TCA)—an association of employers—when acquiring new signatory employers. (Bartalone Dep. 18-19.) Speedwell is not and never was a member of TCA. (Hill Dep. 81.) Generally, according to Hill, when an independent employer, like Speedwell, signed the pre-printed CBAs, it would sign the last page after review of the pre-printed agreement, including the Rider, thereby agreeing to all terms contained in the document. (Hill Aff. ¶ 12.)

A contractor that signed a CBA with Local 7 was required to use union labor exclusively when performing covered work, contribute to employee benefit plans timely and in an amount stated in the CBA, and deduct union dues and assessments from an employee's paycheck as authorized by the employee and forward such sums to the union. (Hill Aff. ¶ 8.) "Covered work" is defined in the agreement by the geographic location of where the work is being performed and the type of work. (Hill Aff. ¶ 14.) Additionally, Local 7 would not allow its members to work alongside non-union employees, and employers who signed contracts with Local 7 were obligated to hire a workforce that consisted of 100 percent union labor. (Hill Aff. ¶ 15.)

Non-party Belle Construction Company and Belle (BCC/Belle) is a general contractor that manages construction jobs in New Jersey. BCC/Belle is owned by James Kearney. BCC/Belle maintains a list of approved subcontractors to serve as bidders for its projects. (Kearney Dep. 44-45; MacDonald Dep. 8.) Arthur McCarthy and John Brucker are project managers for BCC/Belle. As project managers McCarthy and Brucker review bids from subcontractors and select contractors based on price. (McCarthy Dep. 10-12, 27-29; Brucker Dep. 7, 19-20, 24-26.)

C. Events Giving Rise to the Present Action

i. The Edgewater Project

In 1997, Speedwell was awarded a bid for tile work at the Edgewater project, for which BCC/Belle was the general contractor and McCarthy was the project manager. (McCarthy Dep. 41-43, 56; Kolsky Dep. 100-101.) At the time that Speedwell was working on the Edgewater project, Local 7 business agents Bartalone and Uzzalino went to the jobsite. (Kolsky Dep. 104.) Kolsky was informed that Bartalone and Uzzalino were at the job site and drove to meet them there. (Kolsky Dep. 104.) When Kolsky arrived, he met Bartalone and Uzzalino in the parking lot outside of the building. (Kolsky Dep. 105.) The Local 7 agents told Kolsky that there were non-union members working at the Edgewater project, that it was a union job, and that Speedwell workers could not work at the job. (Kolsky Dep. 105-07.) Kolsky responded that it was his understanding that the job was "open shop", i.e. a mix of union and non-union labor was permitted, and, further, that he had a contract with the general...