Trustees of the Northeast Carpenters Health, Pension, Annuity, Apprenticeship, and Labor Management Cooperation Funds v. Tiki Industries, Inc.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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TRUSTEES OF THE NORTHEAST CARPENTERS

HEALTH, PENSION, ANNUITY, APPRENTICESHIP,

and LABOR-MANAGEMENT COOPERATION MEMORANDUM & ORDER

FUNDS, 20-CV-492 (DRH)(AKT)

Petitioners,

-against-

TIKI INDUSTRIES, INC.,

Respondent.

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APPEARANCES:

For Petitioners:

Virginia & Ambinder LLP

40 Broad Street, 7th Floor

New York, NY 10004

By: Nicole Marimon, Esq.

For Respondent: No Appearance

HURLEY, Senior District Judge:

Petitioners, Trustees of the Northeast Carpenters Health, Pension, Annuity,

Apprenticeship, and Labor Management Cooperation Funds (the “Funds” or “Petitioners”)

commenced this proceeding to confirm and enforce an Arbitrator’s Award rendered on January

29, 2020 against respondent Tiki Industries, Inc. ( “Respondent”) pursuant to a collective

bargaining agreement (the “CBA”) between the North Atlantic States Regional Council of

Carpenters, f/k/a the New England Regional Council of Carpenters (“Union”) and Respondent.

For the reasons that follow, the petition is granted.

BACKGROUND

The following facts are taken from the Petition and exhibits thereto and presumed true as

no response to the petition has been field and the time in which to do so has expired.

In January 2013, Respondent entered into a short form agreement with the Union.

Pursuant to the short form agreement, Respondent agreed to be bound to every applicable current

collective bargaining agreement between the Union and the members of the contractor

associations. ¶¶ Petition 7-8 & Ex. A. The short form agreement further provided that the

agreement should continue for the duration of the applicable collective bargaining agreements

and shall continue in full force and effect from year to year unless at least 90 days before the

expiration of the then current collective bargaining agreement either party notifies the other in

writing of the cancellation of the agreement. Neither Respondent nor the Union provided notice

to terminate the agreement. ¶¶Petition 9-10.

Pursuant to the agreement, Respondent has been bound to the 2011-16 CBA and 2016-

2019 CBA (collectively, the CBAs) which require Respondent to make contributions to the

Funds for all work within the trade and geographical jurisdiction of the Union. ¶ Petition 12 &

Ex. B and C. The Trustees of the Funds established a Joint Policy for the Collection of

Delinquent Contributions (“Collection Policy”). Under the Collection Policy, interest on

delinquent contributions is to be calculated at the rate of 0.75% per month, and liquidated

damages shall be calculated from the due date at the rate of 20% of the delinquent Contributions.

Additionally, the Collection Policy provides that the Board of Trustees of Fund Director shall

have the discretion in determining which employers will be audited each year.” ¶¶Petition 13-17

& Ex. D.

During the period October 1, 2015 through March 24, 2019, Petitioners conducted an

audit of Respondent in order to determine whether Respondent had complied with its obligations

under the CBAs. The auditor determined that the Respondent owes a principal deficiency of

$61,589.33 for the period October 1, 2015 through March 24, 2019.

Pursuant to the Collection Policy, in the event an employer fails to remit contributions to

the Funds, the matter shall be sent to arbitration before the Funds’ designated arbitrator.

¶¶Petition 18-20. The Collection Policy further provides that the employer shall be liable for all

costs incurred in collecting delinquent contributions, including without limitation, audit costs and

arbitration fees. ¶¶ Petition 21 & Ex. D.

In accordance with the Collection Policy, Petitioners initiated an arbitration before the

designated arbitrator, J.J. Pierson. ¶¶ Petition 22 & Ex. E. After a hearing, the arbitrator rendered

a written award, dated December 2, 2019, determining the dispute. A copy of the Award was

delivered to Respondent. ¶¶ Petition 23 & Ex. F. The Arbitrator found that Respondent was in

violation of the terms of the CBAs and ordered Respondent to pay the Funds the sum of

$93,390.96, consisting of the principal deficiency of $61,589.33, interest of $10,709.65, interest

on past delinquencies of $1,723.86, liquidated damages of $12.317.87, audit fees of $5,350.25,

attorneys’ fees of $900, and the arbitrator’s fee of $800.

Respondent has failed to abide by the Award. ¶¶ Petition 25-28. This petition is timely, as

it was filed within the one-year statute of limitations applicable to a petition to confirm an

arbitrator’s award.

DISCUSSION

I. Confirmation of the Arbitration Award - General Legal Principles

“Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 . . .,

provides federal courts with jurisdiction over petitions brought to confirm labor arbitration

awards.” Local 802, Associated Musicians of Greater N.Y. v. Parker Meridien Hotel, 145 F.3d

85, 88 (2d Cir. 1998). Courts treat a petition to confirm an arbitration award as akin to a motion

for summary judgment. See Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 582, 128 S. Ct.

1396, 170 L. Ed. 2d 254 (2008); D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 107-08 (2d Cir.

2006). A movant is entitled to summary judgment when it “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).

Confirmation of an arbitration award is ‘a summary proceeding that merely makes what

is already a final arbitration award a judgment of the court[.]’ ” D.H. Blair, 462 F.3d at 110

(quoting Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984)). As such, “judicial

review of an arbitration award is narrowly limited.” Barbier v. Shearson Lehman Hutton Inc.,

948 F.2d 117, 120 (2d Cir. 1991). The district court’s role is to ensure that the arbitrator “acted

within the scope of the authority granted him by the parties” and that there is “at least a ‘barely

colorable justification for the outcome reached.’ ” Trs. of the N.Y.C. Dist. Council of Carpenters

Pension Fund v. Interior Cinema Inc., 2015 WL 6459261, at *4 (S.D.N.Y. Oct. 23, 2015)

(quoting Landy Michaels Realty Corp. v. Local 32 B–32J, Serv. Emps. Int'l Union, 954 F.2d 794,

797 (2d Cir. 1992)). "[A] court must confirm an arbitration award as long as it 'draws its essence

from the collective bargaining agreement and is not the arbitrator's own brand of industrial

justice.'" Trs. of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Cooperation,

Pension and Welfare Funds v. Baroco Contracting Corp., 2016 WL 2893239, at *3 (E.D.N.Y.

Apr. 19, 2016) (quoting Trs. Of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt.

Cooperation, Pension & Welfare Funds v. Fourmen Constr., Inc., 2016 WL 146245, at *2

(E.D.N.Y. Jan. 13, 2016)).

II. The Award is Confirmed

A. Liability

Here, the documentation before this Court establishes that Respondent was bound by the

CBA and Collection Policy during the relevant time period, that the Funds complied with the

collection policy, and that the dispute was submitted to arbitration with due notice to the

Respondent. Furthermore, the arbitrator reasonably determined that Respondent failed to remit

said contributions to the Funds.

B. Damages

In his award, the arbitrator ordered Respondent to pay the Funds the sum of $93,390.96,

consisting of the principal deficiency of $61,589.33, interest of $10,709.65, interest on past

delinquencies of $1,723.86, liquidated damages of $12,317.87, audit fees of $5,350.25,

attorneys’ fees of $900, and the arbitrator’s fee of $800 pursuant to the CBA. As the Arbitrator

granted these sums in accordance with the CBA and Collection Policy, he has provided far more

than a “barely colorable justification.” See Marine Pollution Serv., Inc. v. Local 282, 857 F.2d

91, 94 (2d Cir. 2013).

C. Interest

Under ERISA, “interest on unpaid contributions shall be determined by using the rate

provided under the plan, or, if none, the rate prescribed under section 6621 of Title 26.” 29

U.S.C. § 1332(g)(2). Moreover, when interest is accruing during the pendency of the action and

it is explicitly requested in the complaint, such interest will be awarded. Ames v. STAT Fire

Suppression, Inc., 227 F.R.D. 361, 362 (E.D.N.Y.2005). Pursuant to the Collection Policy,

interest on delinquent contributions is to be calculated at the rate of 0.75% per month, and such

an amount was explicitly sought in the petition. Accordingly, Respondent will be ordered to pay

interest of 0.75% per month, from the date of the arbitration award (December 2, 2019) to the

date of judgment.

D. Attorney’s Fees and Costs

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., 2013 WL 6498165, at *6 (S.D.N.Y. Dec. 11,

2013) (internal quotations 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 petitioners’ claim for attorney’s fees for the costs arising out of this

petition, the petitioners’ counsel submitted a summary of tasks completed and time billed,

totaling 6.4 hours of work. Pet. Ex. G. The petitioners’ counsel billed $300 per hour for a partner

at Virginia & Ambinder, LLP (“V&A”) and $100 per hour for legal assistants’ work. Id. at ¶ 30-

33. These rates are reasonable given the prevailing rates in this district. See Trustees of New York

Dist. Council of Carpenters Pension Fund v. Concrete Brothers Construction LLC, 2020 WL

3578200 (S.D.N.Y. July 1, 2020) (finding rates of $350 for a partner at Virginia & Ambinder,

LLP and $120.00 for its legal assistants to be reasonable). Because the rates billed and time

expended on this action by the petitioners’ counsel are reasonable, the Court grants the

Petitioners’ request for $1,020.00 in attorney’s fees.

Court costs for court filing fees and service fees are routinely permitted, and the Court

grants the total requested court costs and disbursements of $470.00. See New York City &

Vicinity Dist. Council of Carpenters v. Plaza Constr. Grp., Inc., 2016 WL 3951187, at *2

(S.D.N.Y. July 19, 2016) (collecting cases).

E. Post-judgment Interest

The petitioners are also entitled to post-judgment interest on the full amount of the

judgment at the rate provided under 28 U.S.C. § 1961(a). See Lewis v. Whelan, 99 F.3d 542, 545

(2d Cir. 1996) (“The award of post-judgment interest is mandatory on awards in civil cases as of

the date judgment is entered.”) (citing 28 U.S.C. § 1961(a)).

CONCLUSION

The petition to confirm the arbitration award in the amount of $93,390.96 (consisting of

the principal deficiency of $61,589.33, interest of $10,709.65, interest on past delinquencies of

$1,723.86, liquidated damages of $12.317.87, audit fees of $5,350.25, attorneys’ fees of $900,

and the arbitrator’s fee of $800) is granted. Petitioners are further awarded (1) interest on the

amount of past delinquencies calculated at the rate of 0.75% per month, from the date of the

arbitration award (December 2, 2019) to the date of judgment: (2) attorneys’ fees in the amount

of $1020.00; (3) costs in the amount of $470.00; and (4) post judgment interest pursuant to 28

U.S.C. § 1961. The Clerk of Court is directed to enter judgment accordingly and to close this

case.

SO ORDERED.

Dated: Central Islip, New York s/ Denis R. Hurley

August 21, 2020 Denis R. Hurley

United States District Judge