Drywall Tapers & Pointers of Greater N.Y. Local Union 1974v.Drywall & Acoustics of N.E., Inc.

18-cv-11986 (JGK) (S.D.N.Y. Nov. 27, 2019)

18-cv-11986 (JGK)




The plaintiff, Drywall Tapers and Pointers of Greater New York Local Union 1974 IUPAT, AFL-CIO, petitions to confirm an arbitration award pursuant to section 301 of the Labor Management Relations Act of 1947 ("LMRA"), as amended, 29 U.S.C. § 185, and moves the Court to award reasonable attorney's fees, costs and disbursements, interest, and liquidated damages. The plaintiff is a labor union within the meaning of the LMRA, which represents employees in an industry affecting commerce as defined in Section 501 of the LMRA, as amended, 29 U.S.C. § 142, and Section 3(4) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1002(4), and further defined in Section 12 of the General Associations Law of the State of New York. Affirmation of Lauren Kugielska dated January 25, 2019 ("Kugielska Aff.") ¶ 3. The defendant, Drywall & Acoustics of N.E., Inc., is a corporation incorporated in New York with its principal place of business in New York. Compl. ¶ 7. The defendant is an employer within the meaning of Section 3(5) of ERISA, 29 U.S.C. § 1002(5). Kugielska Aff. ¶ 4. The defendant has not opposed the petition. For the following reasons, the petition is granted in part and denied in part.


The following uncontested facts are taken from the complaint and evidence submitted in support of the petition.

On or about February 6, 2018, the plaintiff entered into a collective bargaining agreement ("CBA") with the Drywall Taping Contractors' Association of Greater New York and the Association of Wall-Ceiling & Carpentry Industry of New York, Inc. Kugielska Aff. Ex. A. The term of the Agreement commenced on June 28, 2017 and ends on June 27, 2020. Id. at 38. Under the terms of the CBA, an "Employer" is defined as a member of the two associations that signed the agreement. Id. at 1. The plaintiff alleges that the defendant, Drywall & Acoustics of N.E., Inc., is a party to the CBA. Compl. ¶ 9. The CBA establishes a Joint Trade Board ("JTB"), which is comprised of representatives from both the union and the Associations. Id. at 18. Under Article XIII, Section 1 and Article XIV of the CBA, grievances that arise between parties that cannot be resolved may be referred to the Joint Trade Board, which functions as an arbitrator. Id. at 18, 25. Under Article XIII, Section 2(g), if an arbitration is commenced and one party fails to appear after notice is given, the hearing may still proceed. Id. at 20. Under Article XIII, Section 3, arbitration awards may include the imposition of fines and/or penalties; the CBA establishes a schedule of fines in Article XIII, Section 6, which includes a fine of $500 for a first offense and $750 for a second offense of "No Registration." Id. at 20-21.

The CBA uses the terms "Joint Board" and "Joint Trade Board" interchangeably. The Court uses the term "Joint Trade Board," because that is the entity that issued the arbitration decision, Kugielska Aff. Ex. C, and that the plaintiff refers to in its complaint, Compl. ¶ 5. --------

Under Article XI of the CBA, Employers are required to register a job with the JTB and write a statement explaining, among other things, the exact location of the job, proposed employees' names, and type of work required. Id. at 17. The underlying dispute arose out of the defendant's failure to register a job pursuant to the CBA. The plaintiff served the defendant with a Notice of Intent to Arbitrate, dated October 8, 2018. Kugielska Aff. Ex. C. The JTB held a hearing on October 30, 2018, where no representative from Drywall & Acoustics of N.E., Inc., appeared. Id. The JTB heard from a witness who represented that he visited a jobsite at a Mercedez Benz Dealership in White Plains and observed that the defendant had failed to register a job. The JTB then deliberated and found the defendant guilty for failure to register a job in violation of Article XI Section 1 of the CBA. In the award dated October 30, 2018, the JTB assessed a $750 fine against the defendant, noting that it was the defendant's second offense of the registration provision. Id.

The plaintiff seeks to confirm the $750 award issued by the JTB. In addition, it asks the Court to approve (i) attorney's fees totaling $3,000, (ii) court costs and disbursements, totaling $400 in filing fees and $72 in a process server fee, (iii) interest calculated at 5.25% per annum from October 30, 2018 through January 31, 2019, totaling $10.03, and (iv) liquidated damages calculated at 10% of the principal amount, totaling $75.


A district court's role in reviewing an arbitration award is extremely limited. United Paperworkers Int'l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29 (1987); United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960). The Supreme Court has explained that district courts "are not authorized to reconsider the merits of an award even though the parties may allege that the award rests on errors of fact or on misinterpretation of the contract." Misco, 484 U.S. at 36. The Court instructed that "[a]s long as the arbitrator's award 'draws its essence from the collective bargaining agreement,' and is not merely 'his own brand of industrial justice,' the award is legitimate." Id. (quoting United Steelworkers, 363 U.S. at 597). Accordingly, an arbitration award is to be confirmed if there is even a "barely colorable justification" for the decision. United States Steel and Carnegie Pension Fund v. Dickinson, 753 F.2d 250, 252 (2d Cir. 1985); see also Trustees of New York City Dist. Council of Carpenters Pension Fund v. Stop & Work Constr., Inc., No. 17-cv-5693, 2018 WL 324267, at *2 (S.D.N.Y. Jan. 5, 2018).

The Second Circuit Court of Appeals has explained that a default judgment is generally inappropriate in a proceeding to confirm or vacate an arbitration award because "[a] motion to confirm or vacate an [arbitration] award is generally accompanied by a record, such as an agreement to arbitrate and the arbitration award decision itself. . . . [T]he petition and accompanying record should [be] treated as akin to a motion for summary judgment based on the movant's submissions." D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 109 (2d Cir. 2006).

The standard for granting summary judgment is well established. "The [C]ourt shall grant summary judgment if the movant shows 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Darnell v. Pineiro, 849 F.3d 17, 22 (2d Cir. 2017). The substantive law governing the case will identify those facts that are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).


In this action, the JTB took into account the representations of a witness who described his knowledge in visiting a job site and observing that the Employer had failed to register a job. It is uncontested that the CBA requires Employers to register jobs with the JTB. The JTB deliberated and found the Employer guilty and assessed a fine in accordance with the schedule of fines for a second offense of failing to register. There is nothing in the substance of the JTB's decision to show that the award was illegitimate.


The plaintiff also seeks fees separate from the $750 award the JTB issued. Specifically, these included (i) attorney's fees totaling $3,000, (ii) court costs and disbursements, totaling $400 in filing fees and $72 in a process server fee, (iii) interest calculated at 5.25% per annum from October 30, 2018 through January 31, 2019, totaling $10.03, and (iv) liquidated damages calculated at 10% of the principal amount, totaling $75. The Court will address these in turn.


Courts in this district have observed that "courts have routinely awarded attorney's 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." Trustees of New York Dist. Council of Carpenters Pension Fund v. All. Workroom Corp., No. 13-cv-5096, 2013 WL 6498165, at *6 (S.D.N.Y. Dec. 11, 2013) (quoting Abondolo v. H. & M.S. Meat Corp., No. 07-cv-3870, 2008 WL 2047612, at *4 (S.D.N.Y. May 12, 2008) (collecting cases) (internal quotation marks omitted)). Reasonable attorney's fees are calculated according to the lodestar method, which requires multiplying the number of hours reasonably expended by a reasonable hourly rate. See McDonald v. Pension Plan of the NYSA-ILA Pension Trust Fund, 450 F. 3d 91, 96 (2d Cir. 2006) (per curiam).

In support of the plaintiff's claim for attorney's fees, the plaintiff's counsel submitted a summary of tasks completed and time billed, totaling 10 hours of work; the customary rate at the plaintiff's counsel's firm is $300 per hour for associate attorneys. Kugielska Aff. ¶¶ 15-16. This Court has previously found that a $300 rate for the services of an associate attorney was reasonable and finds so again in this case. See Drywall Tapers & Pointers of Greater New York Local Union 1974, IUPAT, AFL-CIO v. Visual Acoustics, LLC, No. 17CV5431JGKKHP, 2018 WL 1596196, at *3 (S.D.N.Y. Mar. 29, 2018); see also Alicea v. City of N. Y., 272 F. Supp. 3d 603, 611 (S.D.N.Y. 2017) (approving attorney's fees that billed associates at a rate of $300 per hour). Because the rates billed and time expended on this action by the plaintiff's counsel are reasonable, the Court grants the plaintiff's request for $3,000 in attorney's fees.


Court costs for filing fees and process server fees are routinely permitted, and the Court grants the total requested court costs and disbursements of $472. See New York City & Vicinity Dist. Council of Carpenters v. Plaza Constr. Grp., Inc., No. 1:16-CV-1115-GHW, 2016 WL 3951187, at *2 (S.D.N.Y. July 19, 2016) (collecting cases).


The plaintiff also seeks interest calculated at 5.25% per annum from October 30, 2018 through January 31, 2019, totaling $10.03, and liquidated damages calculated at 10% of the principal amount, totaling $75. There is no evidence that the plaintiff is entitled to these funds.

The plaintiff claims that paragraph 2 of Article XV of the CBA authorizes the JTB to collect interest and liquidated damages. Kugielska Aff. ¶ 18. Paragraph 2 of Article XV of CBA states:

The cost of administration necessary to carry out the functions of the Joint Board shall be borne by all Employers in agreement with Local Union 1974 and shall for all purposes constitute an expense of doing business under this Agreement. Commencing June 28, 2017, each Employer shall pay the sum of twenty ($.20) cents per hour for each Journeyperson and/or Apprentice, for the administration of the Joint Board. . . . If the Employers fail to pay the administrative charges to the Joint Board, the Joint Board shall have the right to take whatever steps are necessary to recover the administrative charges owing to the Joint Board and the Employer shall be liable for all costs for collections of the payments due together-with attorney's fees and such penalties as may be assessed by the Joint Board.
This provision of the CBA relates to the JTB's right to collect administrative charges, which are not at issue in this case. Furthermore, in the actual award issued by the JTB on October 30, 2018, there is no indication that the JTB considered or ordered any such penalties. The JTB only issued a $750 fine for the defendant's failure to register a job in violation of Article XI of the CBA. See Drywall Tapers & Pointers of Greater New York Local Union 1974, IUPAT, AFL-CIO v. CEI CONTRACTORS, Inc., No. 18 CIV. 4581 (LGS), 2018 WL 4941781, at *3 (S.D.N.Y. Oct. 12, 2018).


The Clerk of Court is directed to enter judgment granting the petition to enforce the arbitration award dated October 10, 2018 in the amount of $750. The Clerk is also directed to enter judgment in favor of the plaintiff and against the defendant in the amount of $3,000 in attorney's fees and $472 in court costs and disbursements. The plaintiff's request for interest and liquidated damages is denied. The Clerk is directed to close this case.


Dated: New York, New York

November 27, 2019

/s/ _________

John G. Koeltl

United States District Judge