# Joval Paint Corp. v. John Drew

> District Court, E.D. New York · March 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10306085

## Case

- **Court:** District Court, E.D. New York
- **Decided:** March 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
JOVAL PAINT CORP. D/B/A SOL RUBIN

PAINTING,

MEMORANDUM & ORDER
Petitioner, 19-CV-732 (RRM) (ARL)

- against -

JOHN DREW, AS PRESIDENT AND DIRECTOR
OF SERVICING OF DISTRICT COUNCIL NO. 9,
INTERNATIONAL UNION OF PAINTERS AND
ALLIED TRADES, A.F.L.-C.I.O., and JUAN
QUIJIJE,

Respondents.
-----------------------------------------------------------X
ROSLYNN R. MAUSKOPF, United States District Judge.
Petitioner Joval Paint Corp. (“Joval Paint”) commenced this action in the Supreme Court
of the New York State, Suffolk County, seeking to vacate an arbitration award issued on October
16, 2018. (Petition (Doc. No 1-1).) Before the Court is Joval Paint’s motion for summary
judgment to vacate the arbitration award and a cross-motion from respondent/cross-petitioner
John Drew, as President and Director of Servicing of District Council No. 9, International Union
of Painters and Allied Trades, AFL-CIO, (“DC 9”) to confirm the arbitration award. For the
reasons set forth below, Joval Paint’s motion to vacate the award is denied and DC 9’s cross-
motion to confirm the award is granted.
BACKGROUND
The following facts are undisputed unless otherwise noted. Joval Paint, a painting
contractor, entered into a collective bargaining agreement or Independent Trade Agreement
(“ITA”) with DC 9 effective May 1, 2011, through April 30, 2019. (Petitioner’s Rule 56.1
Statement (“Pet.’s SOF”) (Doc. No. 54) ¶¶ 1–3; Respondent’s Rule 56.1 Counter-Statement
(“Resp.’s SOF”) (Doc. No. 56-1) ¶¶ 1–3).) Juan Quijije is a member of DC 9 and was employed
by Joval Paint. (Pet.’s SOF ¶ 7; Resp.’s SOF ¶ 7.) While employed by Joval Paint, Joval Paint
sometimes paid Quijije in cash. (Pet.’s SOF ¶¶ 9–10; Resp.’s SOF ¶¶ 9–10.)
On August 17, 2018, DC 9 served a 48 Hour Notice and Demand for Arbitration (the

“Notice and Demand”) on Joval Point, alleging that the contractor had failed to “pay wages
and/or fringe benefits or payment in cash for wages and/or fringe benefits” to DC 9. (Pet.’s SOF
¶ 11; Resp.’s SOF ¶ 11; see also Notice and Demand (Exhibit C to Kugielska Decl. (Doc. No.
44-3).) The Notice and Demand claimed that $98,036.16 in wages and $50,236.24 in benefits
were due as to member Juan Quijije. (Id.) The Notice and Demand stated that the arbitration
hearing would take place at DC 9’s office on August 29, 2018, at 10:00 a.m. (Id.)
The payment and arbitration procedure provisions of the ITA are at the center of the
dispute between the parties. The ITA contains the following relevant terms:
ARTICLE XIII, Section 5.
(a) Filing of the Demand to Arbitrate a Grievance or Dispute.
(i) A demand to arbitrate a grievance or dispute shall be in writing and
shall be filed by mail or hand-delivered to the Joint Trade Committee by
either the Union or the Employer. Demands also shall be filed by the
Union to the Employer and by the Employer to the Union. The demand
shall state the name of the aggrieved party, and the name of the party
against whom the grievance or dispute is asserted. The party filing the
grievance or dispute shall thereafter be called the complainant. The party
against whom the grievance or dispute is asserted shall thereafter be called
the respondent.
(ii) Each demand shall set forth only one alleged grievance or dispute in
simple and concise form, and shall set forth the basis of the grievance or
dispute, with appropriate reference to the Trade Agreement provisions at
issue, to the extent known. The demand shall also set forth the date of the
particular incident and, if known, the name(s) of the person and/or
Employer(s) involved. The demand may also set forth the remedy sought.
(iii) Every demand to arbitrate shall specify the name of the party serving
the demand, or of an officer or agent thereof if such party is an association
or corporation, and shall state that unless the party served applies to stay
the arbitration within twenty (20) days after such service or, in the case of
Article IX grievances, 48 hours after such service, he/she shall thereafter
be precluded from objecting that a valid agreement was not made or has
not been complied with, and from asserting in court the bar of a limitation
of time.
(b) Service of the Demand to Arbitrate a Grievance or Dispute and Setting of the
Date of Hearing.
(i) Simultaneously with the filing of the demand with the Joint Trade
Committee, the complainant will serve a copy of the demand upon the
respondent. Within fourteen (14) days of the filing of the demand, the
Joint Trade Committee shall notify the complainant and respondent of the
date and time for the hearing of the grievance or dispute before the Joint
Trade Committee. Service upon the respondent of the complainant’s
demand to arbitrate, and service upon the complainant and respondent by
the Joint Trade Committee of the notice of the date of the hearing of the
arbitration, shall be by certified mail and return receipt requested, or
overnight express mail. The mailing to an Employer shall be made to the
Employer’s address on file with the Union.
(ii) The date set for the hearing by the Joint Trade Committee shall not be
less than twenty (20) days, nor more forty-five (45) days, from the date the
notice was mailed by the Joint Trade Committee.

ARTICLE XIII, Section 11 – Schedule of Fines.
The schedule of fines which shall be in effect for the duration of this Trade
Agreement, or until such time as amended by the Joint Trade Board, will be not
less than the following: …
Violation 9: Failure to pay wages and/or fringe benefits or payment in cash
for wages and/or fringe benefits
1st Offense
Any wages and fringe benefits owed plus liquidated damages in an
amount equal to the unpaid (or cash-paid) fringe benefits only, but no less
than $2,000.00

ARTICLE XXVII – Wages and Benefits.
(a) The Wage and Benefit Package will be adjusted each year commencing May
1, 2011 as follows:
i. Effective May 1, 2011: . . . the hourly rate shall remain at 36.40.
ii. Effective May 1, 2012: . . . the hourly rate shall become $37.44.
iii. Effective May 1, 2013: . . . the hourly rate shall become $39.00.
iv. Effective May 1, 2014: . . . the hourly rate shall become $41.08.
v. Effective May 1, 2015: . . . the hourly rate shall become $42.31.
vi. Effective May 1, 2016: . . . the hourly rate shall become $43.58.
vii. Effective May 1, 2017: . . . the hourly rate shall become $44.89.
viii. Effective May 1, 2018: . . . the hourly rate shall become $46.24.
(Pet.’s SOF ¶¶ 4–6; Resp.’s SOF ¶¶ 4–6; see also ITA (Exhibit A to Kugielska Decl. (Doc. No.
44-1); Exhibit A to Rubin Decl. (Doc. No. 53-1)).)
The arbitration hearing was held on August 29, 2018, before the Joint Trade Committee
(“JTC”), twelve days after service of the Notice and Demand. (Pet.’s SOF ¶ 12; Resp.’s SOF ¶

12.) According to Joval Paint, its counsel, Laurence Rubin, had insufficient time to prepare for
the hearing. (Pet.’s SOF ¶¶ 12–13.) However, DC 9 notes that that Rubin never requested an
adjournment or additional time to prepare. (Resp.’s SOF ¶ 12.) DC 9’s counsel, John Drew,
appeared at the August 29, 2018, arbitration with documents in support of its position that Rubin
had not seen. (Pet.’s SOF ¶¶ 16–17; Resp.’s SOF ¶¶ 16–17.) The parties agreed to an extension
of several weeks for Rubin to review the documents and submit a rebuttal to the JTC. (Pet.’s
SOF ¶ 18; Resp.’s SOF ¶ 18.)
During the arbitration, DC 9 acknowledged that Joval Paint paid Quijije by both check
and cash but DC 9’s position was that, under the ITA, cash payments are not recognized. (Pet.’s
SOF ¶¶ 20–21; Resp.’s SOF ¶¶ 20–21.) DC 9’s position during the arbitration was that it was

owed for all of the payments made to Quijije in cash, totaling $98,036.16. (Pet.’s SOF ¶ 23;
Resp.’s SOF ¶ 23.) Rubin provided the JTC with rebuttal arguments on September 14, 2018.
(Pet.’s SOF ¶¶ 23–24; Resp.’s SOF ¶¶ 23–24.)
On October 9, 2018, the JTC issued its decision (unsigned) and found that Joval Paint
was obligated to pay $98,036.16 in wages and $50,236.24 in benefits to Quijije. (Pet.’s SOF ¶
26; Resp.’s SOF ¶ 26.) On October 16, 2018, the JTC issued an amended (again unsigned)
Decision and Award (“Decision and Award”); however, the amendment did not alter the
Committee’s conclusion or the amount of damages awarded. (Pet.’s SOF ¶ 27; Resp.’s SOF ¶
27; see also Decision and Award (Exhibit D to Kugielska Decl. (Doc. No. 44-4); Exhibit E to
Rubin Decl. (Doc. No. 53-5)).) The Decision and Award states, “the Board deliberated and
found [Joval Paint] guilty of failing to pay wages and benefits to member Juan Quijije for the
period 2/17/15–5/08/18, in violation of Article XIII Section 11 Violation 9 of the [ITA].”
(Decision and Award at 5.)1 Pursuant to the Decision and Award, Joval Paint was obligated to

pay the damages awarded, which it did. (Pet.’s SOF ¶ 28; Resp.’s SOF ¶ 28; Decision and
Award at 5.)
On January 14, 2019, Joval Paint filed the instant petition in the Supreme Court of the
State of New York, Suffolk County, seeking to vacate the Decision and Award. (Petition.) Joval
Paint argues, among other things, that the notice of arbitration was deficient, the JTC failed to
follow proper procedure by not signing the award, and that the JTC exceeded its power by failing
to credit Joval Paint with its prior cash wage payments to Quijije. (Id.)
On February 6, 2019, DC 9 removed the petition to this Court, invoking federal
jurisdiction pursuant to 28 U.S.C. section 1441 and 1331 and Section 301 of the Labor
Management Relations Act. (Notice of Removal (Doc. No. 1).) On February 13, 2019, DC 9

answered the petition to vacate and cross-moved to confirm the Decision and Award, arguing
that Joval Paint is in breach of the ITA because Article XIII, Section 8, provides that all awards
by the Joint Trade Board are final, and under Articles VIII and XX, Joval Paint was bound to a
specific payment protocol, to which it failed to adhere. (Answer and Counterclaim (Doc. No.
8).)
In July 2020, the parties filed cross-motions: Joval Paint for summary judgment to vacate
the arbitration award, (Motion to Vacate (“Mot. to Vacate”) (Doc. No. 55)), and DC 9 for
judgment as a matter of law to confirm the arbitration award, (Motion to Confirm Award (“Mot.

1 All page numbers refer to ECF pagination.
to Confirm”) (Doc. No. 43)). Joval Paint argues that the arbitration award must be vacated
because the JTC failed to follow state law by not signing the Decision and Award. (Mot. to
Vacate at 9–10.) Joval Paint also argues that certain procedural defects in the notice of
arbitration violated the ITA, requiring vacatur of the Decision and Award. (Id. at 11–12.) Joval

Paint further argues that the JTC exceeded its power by awarding past wages due to Quijije, who
had already been paid in cash, and that the Decision and Award violated state law and should be
vacated on this basis. (Id. at 13–16.) Finally, Joval Paint insists that the Decision and Award
should be vacated even if the Court applies the Federal Arbitration Act (“FAA”) as opposed to
New York State law. (Id. at 17–20.) In opposition, DC 9 contends that Joval Paint has not
satisfied its burden of establishing that the JTC exceeded its powers under both New York State
and FAA and points to the arguments it raises in its memorandum of law in support of its motion
to confirm the arbitration award and in opposition to Joval Paint’s motion. (Opposition to Mot.
to Vacate (Doc. No. 56).)
In its motion for judgment as a matter of law to confirm the arbitration award, DC 9

argues that Joval Paint has failed to satisfy its burden of proof. (Mot. to Confirm at 10.) DC 9
argues that Joval Paint cannot establish that the JTC exceeded its power because the Decision
and Award was based on Joval Paint’s admitted violation of the ITA. (Id. at 11–13.) DC 9
maintains that none of the alleged deficiencies in DC 9’s notice violate state law, that Joval Paint
fails to assert it was prejudiced by the alleged deficiencies, and that Joval Paint waived any
objection to the alleged deficiencies through its continued participation in the arbitration. (Id. at
13–15.) Finally, DC 9 submits that the Decision and Award must be confirmed if the Court does
not vacate, modify, or correct it. (Id. at 15–16.) In opposition, Joval Paint argues that DC 9’s
motion should be denied for failure to comply with Local Rule 56.1. (Opp. to Mot. to Confirm.
(Doc. No. 49) at 8–9.) Joval Paint also reiterates many of the arguments it raised in its motion to
vacate the Decision and Award. (Id. at 9–16.)
STANDARDS OF REVIEW
A. Confirmation under Labor Management Relations Act

“Confirmation of a labor arbitration award under LMRA § 301 is a summary
proceeding that merely makes what is already a final arbitration award a judgment of the Court.”
Trs. of Empire State Carpenters Annuity v. Fourmen Constr., Inc., No. 15-CV-3252 (JFB)
(ARL), 2016 WL 146245, at *2 (E.D.N.Y. Jan. 13, 2016) (internal citations and quotation marks
omitted) (emphasis added); see also Supreme Oil Co., Inc. v. Adondolo, 568 F.Supp.2d 401, 405
(S.D.N.Y. 2008) (“Court review of an arbitration award is extremely deferential under
both § 301 of the LMRA … and § 9 of the Federal Arbitration Act ….”)
The Supreme Court has recognized that “[t]he federal policy of settling labor disputes by
arbitration would be undermined if courts had the final say on the merits of the awards.” United
Paperworkers Int’l v. Misco, 484 U.S. 29, 36, (1987) (quoting United Steelworkers of Am. v.

Enter. Wheel & Car Corp., 363 U.S. 593, 596 (1960)). Accordingly, a district court’s review of
a final arbitration award is limited. Id.; see also Major League Baseball Players Ass’n v.
Garvey, 532 U.S. 504, 509 (2001) (“Judicial review of a labor-arbitration decision . . . is very
limited. Courts are not authorized to review the arbitrator’s decision on the merits despite
allegations that the decision rests on factual errors or misinterprets the parties’ agreement.”).
“The strong policy favoring the resolution of labor disputes by arbitration dictates that courts
give broad discretion to the powers of an arbitrator and construe narrowly those circumstances
where an award ought to be vacated.” Huntington Hosp. v. Huntington Hosp. Nurses’ Ass’n, 302
F. Supp. 2d 34, 39 (E.D.N.Y. 2004) (citations omitted).
A party moving to vacate an arbitration award “bears the burden of proof, and the
showing required to defeat confirmation is high.” N.Y. Hotel & Motel Trades Council v. Hotel
St. George, 988 F. Supp. 770, 774 (S.D.N.Y. 1997).
[T]he arbitrator’s award settling a dispute with respect to the interpretation or
application of a labor agreement must draw its essence from the contract and
cannot simply reflect the arbitrator’s own notions of industrial justice. But as long
as the arbitrator is even arguably construing or applying the contract and acting
within the scope of his authority, that a court is convinced he committed serious
error does not suffice to overturn his decision. Of course, decisions procured by
the parties through fraud or through the arbitrator’s dishonesty need not be
enforced.

United Paperworkers Intern. Union. AFL-CIO v. Misco, Inc., 484 U.S. 29, 38 (1987). Courts
have recognized that “where a party seeks to have an arbitration award vacated, ‘[t]he policies
of section 301 and the FAA are analogous . . . as both recognize the importance of arbitration
and provide for limited review of arbitral decisions.’” SEIU Loc. 74 Pension Fund v. Nazareth
Reg’l High Sch., No. 04-CV-0867 (BMC) (RER), 2007 WL 9723242, at *1 (E.D.N.Y. Jan. 3,
2007) (quoting HRH Constr., L.L. C. v. Local No. 1. Int’l Union of Elevator Constr., AFL-CIO,
No. 03-CV-8944 (DC), 2005 WL 31948, at *4 (S.D.N.Y. Jan. 5, 2005)).
B. Summary Judgment
A motion for summary judgment may not be granted unless all of the submissions taken
together “show[] 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 El Sayed v. Hilton Hotels
Corp., 627 F.3d 931, 933 (2d Cir. 2010). The moving party bears the burden of demonstrating
the absence of a genuine issue of material fact and, in determining whether this burden has been
met, a court must view all facts in the light most favorable to the non-moving party. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986); El Sayed, 627 F.3d at 933. “When a motion for
summary judgment is properly supported by documents or other evidentiary materials, the party
opposing summary judgment . . . must set forth specific facts demonstrating that there is a
genuine issue for trial” and cannot “merely rest on the allegations or denials” contained in the
pleadings. Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (internal quotation marks
omitted). “A party may not rely on mere speculation or conjecture as to the true nature of the

facts to overcome a motion for summary judgment,” as “[m]ere conclusory allegations or denials
cannot by themselves create a genuine issue of material fact where none would otherwise exist.”
Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Only disputes over material
facts – “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); SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009).
DISCUSSION
While neither party argues that the ITA contains a choice of law provision, they seem to
agree that New York State law applies in some respects but also dispute the applicability of the
FAA. The relevant New York statute is CPLR § 7511, which governs vacating or modifying

arbitration awards. The relevant federal provision is the FAA, 9 U.S.C. 1 § et. seq. There is no
conflict between New York and federal law on any of the issues relevant to this dispute, and the
holdings of this case can rest on either body of law. See e.g. Yonir Techs., Inc. v. Duration Sys.
(1992) Ltd., 244 F. Supp. 2d 195, 203 (S.D.N.Y. 2002).
Under CPLR § 7511(b)(1), an arbitration award can be vacated if the court finds a party’s
rights were prejudiced by: (i) corruption, fraud, or misconduct in procuring the award; (ii)
partiality of an arbitrator; (iii) an arbitrator or agency making an award that exceeded his power
or so imperfectly executed it that a final and definite award was not made; or (iv) failure to
follow the procedure of the CPLR. N.Y. CPLR § 7511(b)(1) (McKinney 2001).
Section 10 of the FAA provides four grounds for vacating an arbitration award:
[i] where the award was procured by corruption, fraud, or undue means;
[ii] where there was evident partiality or corruption in the arbitrators, or either of
them;
[iii] where the arbitrators were guilty of misconduct in refusing to postpone the
hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent
and material to the controversy; or of any other misbehavior by which the rights
of any party have been prejudiced; or
[iv] where the arbitrators exceeded their powers, or so imperfectly executed them
that a mutual, final, and definite award upon the subject matter submitted was not
made.

9 U.S.C. § 10(a)(1)-(4). Additionally, a court may vacate an arbitration award on two judicially
created exceptions: (1) that the award was made in “manifest disregard of the law,” Duferco
Intern. Steel Trading v. T. Klaveness Shipping A/S, 444 F.3d 383, 388 (2d Cir. 2003), and (2) that
the award violates public policy, see United Paperworkers Int’l Union, AFL-CIO v. Misco, Inc.,
484 U.S. 29, 42 (1987).
Nothing in the record indicates that the JTC’s Decision and Award should be vacated.
The undisputed facts do not support vacating the Decision and Award due to any procedural
defects. Joval Paint argues that the Decision and Award should be reversed because it does not
comply with CPLR § 7507, which requires the arbitration award to be “signed and affirmed.”
The fact that the JTC did not sign the Decision and Award is purely technical and not grounds
for vacatur of the Decision and Award. See Korein v. Rabin, 29 A.D.2d 351, 356 (N.Y. App.
Div. 1st Dep’t 1968). Joval Paint does not (and cannot) argue that it was prejudiced by the JTC’s
failure to sign the Decision and Award and the Court will not vacate an otherwise procedurally
sound Decision and Award on this basis.
Additionally, Joval Paint fails to establish that it was prejudiced by any alleged defects in
the notice of arbitration. The Notice and Demand clearly states that the basis of the arbitration
was “[f]ailure to pay wages and/or fringe benefits or payment in cash for wages and/or fringe
benefits for LU 24/DC9,” and states the claimed amount in damages and to whom the damages
are due -- $98,036.16 in wages and $50,236.24 in benefits to Juan Quijije. While it is unclear
from the record before this Court whether Joval Paint objected to the Notice and Demand before
the JTC, whether it objected or not is of no moment. The Notice and Demand complied with the

notice of arbitration provisions of the ITA.
Joval Paint argues that the JTC exceeded its power by awarding Quijije damages in its
Decision and Award because Quijije had already been paid that amount in cash. The Court
disagrees. The facts regarding the amount of payments made in cash to Quijije are undisputed
and Joval Paint agrees that $98,036.16 in cash wages were paid to him. (Pet.’s SOF ¶ 22;
Resp.’s SOF ¶ 22.) The relevant provision of the ITA, Article XIII, Section 11, states that the
penalty for “payment in cash for wages and/or fringe benefits” is, for the first offense, a fine in
the amount of “[a]ny wages and fringe benefits owed plus liquidated damages in an amount
equal to the unpaid (or cash-paid) fringe benefits only, but no less than $2,000.00.” DC 9
argued that “Article XIII Section 11 Violation 9 of the ITA treats unpaid and cash paid wages as

wages ‘owed’ for the purpose of applying its stated penalty, which is the payment of the unpaid
or cash paid wages, and in accordance with its purpose of invalidating the enormously harmful
practice of making payments in cash.” (Mot. to Confirm at 12 (citing Drew Dec. ¶¶ 6–7)).
Given the undisputed fact that Quijije was paid in cash and the language of the parties’
negotiated agreement, the JTC’s Decision and Award construed and applied the contract and
acted within the scope of its authority to reach its Decision and Award, ultimately agreeing the
DC 9’s argument regarding this key provision. Accordingly, the Decision and Award must be
confirmed. It follows that the Court cannot find that Joval Paint has met its high burden
demanding vacatur of the Decision and Award.
CONCLUSION
For the reasons stated above, Joval Paint’s motion for summary judgment is DENIED.
DC 9’s cross-motion for judgment as a matter of law to confirm the arbitration award is
GRANTED in its entirety and the JTC’s Decision and Award is confirmed. The Clerk of Court

is respectfully directed to enter judgment for DC 9 and to close the case.
SO ORDERED.
Dated: Brooklyn, New York Roslynn R. Mauskopf
March 26, 2021 _______________________________
ROSLYNN R. MAUSKOPF
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10306085. Public record. Not legal advice.