The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DR. GERALD R. FINKEL, as Chairman
of the Joint Industrial Board of the Electrical
Industry,
Petitioner, OPINION & ORDER
- against - 22-cv-4299 (NG)
THORN ELECTRIC, INC.,
Respondent.
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GERSHON, United States District Judge:
Petitioner Dr. Gerald Finkel, as Chairman of the Joint Industry Board of the Electrical
Industry (“JIB”), commenced this action pursuant to Section 502(a)(3) of the Employee
Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1132(a)(3), and Section 301 of
the Labor Management Relations Act (“LMRA”), 29 U.S.C. § 185, to confirm and enforce an
arbitration award entered in favor of petitioner against respondent Thorn Electric, Inc. Respondent
has not appeared in this action. Before the court is petitioner’s unopposed motion for summary
judgment seeking confirmation of the arbitration award of $407,842.59, plus interest from the date
of the award through the date of judgment. Petitioner further seeks reasonable attorneys’ fees and
costs for bringing this action. Respondent has failed to abide by the award, the award has not been
vacated or modified, and no application for such relief is currently pending. For the reasons set
forth below, petitioner’s motion is granted.
I. Background
The JIB is the administrator and fiduciary of various employee benefit multi-employer
plans established and maintained pursuant to a collective bargaining agreement (“CBA”) between
Local Union No. 3 of the International Brotherhood of Electrical Workers, AFLI-CIO (the
“Union”) and certain employer associations and employers in the electrical and other related
industries. Respondent is a corporation incorporated under the laws of the State of New York, and
at all relevant times, was an employer within the meaning of Section 3(5) of ERISA, 29 U.S.C. §
1002(5), and was an employer in an industry affecting commerce within the meaning of Section
501 of the LMRA, 29 U.S.C. § 142.
Pursuant to the CBA, JIB is to receive directly from each signatory employer a weekly
remittance consisting of contributions to each of the ERISA plans, as well as a Union assessment
collected by the signatory employer from each Union member. Also pursuant to the CBA, each
employer is required to remit to the Deferred Salary Plan (“DSP”) a specified percentage of the
weekly wage of each eligible employee, plus any additional salary deferrals made at the election
of the employee (“Employee Contributions”). Employers are also required to remit employer
contributions to the DSP on behalf of all covered employees (“Employer Contributions”).1
Additionally, when applicable, JIB collects employee loan payments due to the Union and certain
plans and contributions to fund the operation of JIB (the “Non-ERISA Contributions”). Each
employer’s contributions to the ERISA plans, the Union assessment remittances, and the non-
ERISA plan contributions are collectively known as the “JIB Contributions.” The JIB
Contributions, together with the DSP Contributions, are “Required Contributions” under the CBA.
The CBA requires respondent to make the Required Contributions for all work within the
trade and geographical jurisdiction of the Union and to submit weekly payroll reports providing
1 Employee Contributions and Employer Contributions to the DSP are collectively referred to as
“DSP Contributions.”
the name, gross wage, and hours worked for each worker employed by the company and on whose
behalf the Required Contributions are made.
The JIB has established a Collection Policy for the collection of delinquent contributions.
Furthermore, in the event of a dispute concerning an employer’s obligations, the CBA has
established Arbitration Procedures. Those procedures provide that an arbitrator shall have
jurisdiction to determine any dispute between “JIB against an Employer, related to the Employer’s
obligation to contribute to the Funds,2 including but not limited to Audits, Delinquencies, interest,
liquidated damages, attorneys’ fees and costs.” (Petition ¶ 23). Additionally, the Arbitration
Procedures provide that if the arbitrator finds in whole or in part for JIB, the employer shall be
liable for the arbitrator’s fees and JIB’s attorneys’ fees and costs.
A dispute arose between the parties when respondent failed to remit: (1) JIB Contributions
owed for payroll weeks ending December 15, 2021 through February 9, 2022; and (2) DSP
Contributions owed for payroll weeks ending December 15, 2021 through February 9, 2021.
(Petition ¶ 25). Petitioner initiated arbitration before the designated arbitrator, Stephen F.
O’Beirne, Esq. Respondent did not appear. The arbitrator issued an arbitration award, dated June
27, 2022, finding that respondent was in violation of the terms of the CBA and ordering respondent
to pay the Funds the sum of $407,842.59, consisting of: (1) JIB Contributions of $247,137.24; (2)
interest thereon of $1,079.84; (3) DSP contributions of $78,296.63; (4) interest thereon of
$1,102.79; (5) additional interest of $6,603.73; (6) additional shortages of $3,070.37, plus interest
thereon of $51.14; (7) liquidated damages of $65,700.85; and (8) attorneys’ fees, arbitration fees,
and administrative costs of $4,800.
2 The petitioner is sometimes referred to as the “Funds” in the petition and supporting exhibits.
Respondent has failed to abide by the award; the award has not been vacated or modified;
and there is no application for such relief currently pending. Petitioner now seeks summary
judgment: (1) confirming the arbitration award; (2) awarding judgment in favor of petitioner and
against respondent in the amount of $407,842.59 pursuant to the award, plus interest from the date
of the award through the date of judgment; and (3) awarding judgment in favor of the petitioner
and against respondent in the amount of $825 in attorneys’ fees and costs arising from this action.
II. Standard
“Because ‘[a]rbitration awards are not self-enforcing,’ they must be given force and effect
by being converted to judicial orders by courts; these orders can confirm and/or vacate the award,
either in whole or in part.” D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 104 (2d Cir. 2006)
(quoting Hoeft v. MVL Group, Inc., 343 F.3d 57, 63 (2d Cir. 2003)). 29 U.S.C. § 185 confers
jurisdiction on federal district courts over petitions to confirm labor arbitration awards. See Local
802, Associated Musicians v. Parker Meridien Hotel, 145 F.3d 85, 88 (2d Cir. 1998).
In an unopposed summary judgment motion such as this, a court “may not grant the motion
without first examining the moving party’s submission to determine if it has met its burden of
demonstrating that no material issue of fact remains for trial. If the evidence submitted in support
of the summary judgment motion does not meet the movant’s burden of production, then summary
judgment must be denied even if no opposing evidentiary matter is presented.” Vt. Teddy Bear
Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (emphasis in original).
III. Discussion
Petitioner has established that respondent is bound by the CBA in this matter.3 The CBA,
in turn, binds respondent to the Collection Policy and Arbitration Procedures. As noted above, the
Arbitration Procedures provide that the arbitrator shall have jurisdiction to determine any disputes
between the “JIB against an Employer, related to an Employer’s obligation to contribute to the
Funds, including but not limited to Audits, Delinquencies, interest, liquidated damages, and
attorneys’ fees and costs.” The Arbitration Procedures further specify that the failure of any party
properly noticed to appear at a hearing “shall in no way limit the Neutral Arbitrator’s authority to
hear Disputes and render a fully binding ruling on all parties.” Petitioner established that
respondent had notice of the arbitration and failed to appear. In accordance with the Arbitration
Procedures, the arbitration proceeded, and the arbitrator rendered an award. Petitioner timely
applied to this court for confirmation of the award, and respondent, which was properly served,
has failed to appear in this proceeding. Petitioner has thus established that there remains no
genuine issue of material fact for trial.
The only question remaining, then, is whether petitioner has provided adequate support for
the damages he seeks. “It is well established that courts must grant an [arbitrator’s] decision great
deference.” Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir.
2003). When an arbitrator’s award provides the basis for a party’s claim to damages, the Second
Circuit has stated:
[C]onfirmation of an arbitration award is a summary proceeding that merely makes
what is already a final arbitration award a judgment of the court, and the court must
grant the award unless the award is vacated, modified, or corrected. The arbitrator’s
rationale for an award need not be explained, and the award should be confirmed if
a ground for the arbitrator’s decision can be inferred from the facts of the case.
3 Petitioner specified that respondent agreed to be bound by the April 10, 2019 through April 13,
2022 collective bargaining agreement.
D.H. Blair, 462 F.3d at 110 (internal quotation marks and citations omitted). Therefore, since
nothing indicates that the award has been “vacated, modified, or corrected,” id., I need only
confirm that the arbitrator had “some grounds on which to grant the damages spelled out in the
Award.” Trs. of the Local 807 Labor Mgmt. Health Fund v. Express Haulage Co., 2008 WL
4693533, at *5 (E.D.N.Y. 2008).
The CBA in this matter provides that an employer shall be liable for “the remedies under
Section 502(g)(2) of ERISA, including liquidated damages of 20%, in the event of entry of
judgment against the Employer in an action to collect delinquent contributions.” Nothing in the
record indicates that the arbitrator lacked a basis to award petitioner the sums he did, or that he
“otherwise acted arbitrarily, in excess of his power, or contrary to law.” Trs. of N.Y. City Dist.
Council of Carpenters Pension Fund v. Ferran Dev. Corp., 2013 WL 2350484, at *4 (S.D.N.Y.
May 30, 2013), report and recommendation adopted sub nom. Trs. of the N.Y. Council of
Carpenters Pension Fund v. Ferran Dev. Corp., 2013 WL 12109396 (S.D.N.Y. June 24, 2013).
Petitioner has thus established that he is entitled to summary judgment and the award is therefore
confirmed.
The petition also requests interest from the date of the award through the date of judgment.
Although granting prejudgment interest is within the discretion of the district court, within the
Second Circuit there is a “presumption in favor of prejudgment interest” where the arbitration
agreement states that an arbitration decision is “final and binding.” Local 355 United Serv.
Workers Union v. Certified Climate Control Sys., Inc., 2016 WL 806074, at *11 (E.D.N.Y. Feb.
10, 2016), report and recommendation adopted, 2016 WL 843290 (E.D.N.Y. Mar. 1, 2016). Here,
the Arbitration Procedures state that the arbitrator’s award is final and binding; therefore
prejudgment interest is warranted.
The petition does not specify the appropriate prejudgment interest rate. The Collection
Policy, however, specifies that “[i]nterest shall be calculated at the rate set forth in Section 6621
of the Internal Revenue Code” and that “[i]nterest shall also be due on interest that has been billed
and is overdue.” Accordingly, the Clerk of Court is (1) directed to calculate prejudgment interest
on the arbitrator’s award, totaling $407,842.59, from June 27, 2022 to the date of this court’s
judgment, and is (2) instructed to refer to Section 6621 of the Internal Revenue Code to determine
the requisite interest rate. See Trs. of Empire State Carpenters Annuity, Apprenticeship, Labor-
Mgmt. Cooperation, Pension & Welfare Funds v. Tri-State Acoustics Corp., 2014 WL 4537481,
at *7 (E.D.N.Y. Sept. 11, 2014) (providing prejudgment interest on arbitrator’s entire award,
including that portion representing interest).
III. Attorneys’ Fees
Petitioner also seeks attorneys’ fees and costs arising from the prosecution of this action.
The CBA provides that the employer shall be liable for, among other things, reasonable attorneys’
fees and costs in the event of entry of judgment against the employer in an action to collect
delinquent contributions. Moreover, when a court is asked to confirm an arbitration award, “the
guiding principle has been stated as follows: when a challenger refuses to abide by an arbitrator’s
decision without justification, attorneys’ fees and costs may properly be awarded,” under the
court’s equitable powers. International Chem. Workers Union, Local No. 227 v. BASF Wyandotte
Corp., 774 F.2d 43, 47 (2d Cir. 1985) (internal quotation marks and citations omitted); Trs. of Ne.
Carpenters Health, Pension, Annuity, Apprenticeship, & Labor Mgmt. Cooperation Funds v. CEI
Contractors, Inc., 2019 WL 117603, at *4 (E.D.N.Y. Jan. 7, 2019). Since respondent has not
appeared in this action or in the underlying arbitration proceedings, fees and costs are warranted.
Petitioner seeks to recover $477 in costs and $348 for attorneys’ fees for 1.2 hours of work
on this matter. Courts in the Second Circuit are to determine the “presumptively reasonable fee”
for an attorney’s services by considering what a reasonable client would be willing to pay. See
Arbor Hill Concerned Citizens Neighborhood Ass’n v. Cnty. of Albany and Albany Cnty. Bd. of
Elections, 522 F.3d 182, 183–84 (2d Cir. 2008). That requires first determining what the
reasonable hourly rate is for the services that were performed. Id. The attorneys’ years of
experience, the nature of the matter—a relatively simple petition to confirm an arbitration award—
and the court’s experience dealing with similar claims, guide the court’s analysis. See Trs. of the
Local 807 Labor Mgmt. Health Fund, 2008 WL 4693533, at *10. Here, the rates put forth by
petitioner’s counsel, as well as the amount of time expended on this matter, are both reasonable. I
therefore award petitioner $348 in attorneys’ fees.
Petitioner is also entitled to costs, and he requests to be reimbursed $477 for the filing and
service fees. The party requesting reimbursement of its costs, however, must provide the court
with adequate documentation “not only showing such costs were incurred, but that they were
paid.” Markey v. Lapolla Indus., Inc., 2017 WL 9512407, at *8 (E.D.N.Y. Aug. 24, 2017), report
and recommendation adopted, 2017 WL 4271560 (E.D.N.Y. Sept. 26, 2017). Petitioner has
submitted the total amount of costs, but no documentation proving that they were paid. I therefore
award petitioner only $402 for the court’s filing fee, since the receipt is on the court’s docket. In
sum, petitioner is awarded $750 in attorneys’ fees and costs.
IV. Conclusion
Petitioner’s unopposed motion for summary judgment confirming the arbitration award in
the amount of $407,842.59 is granted, and petitioner’s request for prejudgment interest is also
granted, as set forth above. Finally, petitioner is awarded attorneys’ fees and costs for bringing
this action in the amount of $750. The Clerk of Court is directed to enter judgment accordingly.
SO ORDERED.
/s/
NINA GERSHON
United States District Judge
March 21, 2023
Brooklyn, New York