Dist Council v.

WCC memorandum of law

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
NEW YORK CITY AND VICINITY
DISTRICT COUNCIL OF THE UNITED
BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA,
Plaintiff,
- against -
THE ASSOCIATION OF WALL-
CEILING & CARPENTRY
INDUSTRIES OF NEW YORK, INC.,
Defendant.
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Index No. 14-cv-6091
DEFENDANTS MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT
McElroy, Deutsch, Mulvaney & Carpenter, LLP
Attorneys for Defendant
88 Pine Street
24
th
Floor
New York, New York 10005
212.483.9490
On the brief:
Mark A. Rosen
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Dist Council v. WCC memorandum of law
TABLE OF CONTENTS
TABLE OF AUTHORITIES.......................................................................................................... ii
PRELIMINARY STATEMENT .....................................................................................................1
STATEMENT OF FACTS..............................................................................................................1
POINT I ...........................................................................................................................................6
STANDARD FOR SUMMARY JUDGMENT.............................................................6
POINT II ..........................................................................................................................................7
DEFENDANT WCC IS ENTITLED TO SUMMARY JUDGMENT
CONFIRMING THE ARBITRATION AWARD.........................................................7
POINT III.............................................................................................................................9
WCC WOULD BE ENTITLED TO INJUNCTIVE RELIEF.......................................9
POINT IV...........................................................................................................................13
WCC IS ENTITLED TO SUMMARY JUDGMENT AS TO LIABILITY ON
ITS SECOND COUNTER CLAIM.............................................................................13
CONCLUSION..............................................................................................................................14
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ii
TABLE OF AUTHORITIES
Page(s)
CASES
Andersen v. Liberty Lobby,
477 US 242 (1986).....................................................................................................................6
Boston Celtics Limited Partnership v. Shaw,
908 F.2d 1041 (1
st
Cir. 1990).....................................................................................................8
Bricklayers, Masons, Marble and Tile Setters Protective & Benevolent Union No. 7 of
Nebraska v. Lueder Construction Company,
346 F. Supp. 558 (U.S.D.C.D. Neb. 1972) ................................................................................9
Buffalo Forge v. Steelworkers of America, AFL-CIO,
428 U.S. 397, 96 S.Ct. 3141 (1976)...........................................................................................8
Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)..............................................................5
Coors Brewing Co. v. Anheuser-Busch Companies, Inc.,
802 F.Supp. 965 (S.D.N.Y. 1992) ...........................................................................................10
Distasio v. Perkin Elmer Corp.,
153 F.3d 55 (2d Cir. 1998).........................................................................................................6
Euro Brokers Capital Markets, Inc. v. Flinn,
1993 WL 213026 (S.D.N.7. 1993)...........................................................................................10
Florasynth, Inc. v. Pickholz,
750 F.2d 171 (2d Cir. 1984)...................................................................................................6, 7
Genessee Brewing Co. v. Stroh Brewing Co.,
124 F.3d 137 (2d Cir. 1997).....................................................................................................10
Giano v. Senkowski,
54 F.3d 1050 (2d Cir. 1995).......................................................................................................5
Gund, Inc. v. Golden Bear Co.,
1992 WL 392692 (S.D.N.Y. 1992)..........................................................................................11
Hemphill v. Schott,
141 F.3d 412 (2d Cir. 1998).......................................................................................................5
In re Marine Pollution Service, Inc. T/A,
857 F.2d 91 (2d Cir. 1988).........................................................................................................6
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iii
Independent Oil Workers Union, Local 117 v. American Oil Company,
296 F.Supp. 650 (D.Kan. 1969).................................................................................................9
Intl Chemical Workers Union Local No. 227 v. BASF Wyandotte Corp.,
774 F.2d 43 (2d Cir. 1985).........................................................................................................6
Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc.
596 F.2d 70 (2d Cir. 1979).......................................................................................................10
Jolly v. Coughlin,
76 F.3d 468 (2d Cir. 1996).......................................................................................................10
Local 1814 Intl. Longshoremans Assoc. AFL-CIO v. New York Shipping Assoc. Inc.,
965 F.2d 1224 ..........................................................................................................................10
Local 34 v. Cargill, Inc.,
357 F.Supp. 608 (N.D. Ca. 1973) ..............................................................................................9
Local 97, IBEW v. Niagara Mohawk Power Corp.,
195 F.3d 117 (2d Cir. 1999).......................................................................................................7
Major League Baseball Players Assn v. Garvey,
332 U.S. 504, 121 S.Ct. 1724 (2001).........................................................................................7
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 US 574 (1986).....................................................................................................................5
National Bulk Carriers, Inc. v. Princess Management Co.,
597 F.2d 819 (2d Cir. 1979).......................................................................................................7
New York Hotel & Motel Trades Council AFL-CIO v. O&O Properties Corp.
2007 WL 80864 (SDNY)...........................................................................................................8
Ottley v. Scvhwartzberg,
819 F.2d 373 (2d Cir. 1987).......................................................................................................7
Reuters Ltd. V. United Press Intl.,
903 F.2d 904 (2d Cor. 1990)....................................................................................................10
Roso-Lino Beverage Distributors, Inc. v. Coca-Cola Bottling Co. of New York, Inc.,
749 F.2d 124 (2d Cir. 1984).....................................................................................................11
Textile Workers v. Lincoln Mills,
353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957)....................................................................9
Toriola v. New York City Transit Authority,
2005 WL 550973 ** 3-4............................................................................................................6
Towers Financial Corp. v. Dun & Bradstreet, Inc.,
803 F.Supp. 820 (S.D.N.Y. 1992) ...........................................................................................10
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iv
United Steel Workers of America v. Enterprise Wheel and Car Corp.,
363U.S. 593,596, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960)..........................................................6
United Steelworkers v. American Mfg. Co.,
363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960)............................................................8, 9
United Steelworkers v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)................................................................8
Warner-Lambert, Co. v. Northside Associates, Inc.,
922 F.Supp. 840 (S.D.NY. 1996), revd in part on other grounds, 86 F.3d 3 (2d Cir.
1996) ........................................................................................................................................10
Westerbeke Corp. v. Daihatsu Motor Co.,
304 F.3d 200 (2d Cir 2002)........................................................................................................7
Woodman v. WWOR-TV, Inc.,
411 F.3d 69 (2d Cir. 2006).........................................................................................................5
STATUTES
9 U.S.C. 10, 11............................................................................................................................7
29 U.S.C 172(d) ............................................................................................................................8
FAA..................................................................................................................................................7
Federal Arbitration Act (FAA), 9 U.S.C. 9...............................................................................6
L.M.R.A., 29 U.S.C.A. 185 ..........................................................................................................9
301 of the LMRA, 289 U.S.C. 185, and 9 ..........................................................................6, 9
RULES
Fed.R.Civ. Pro. 56(c) .......................................................................................................................5
Fed. R. Civ. Pro. 56(e(2)..................................................................................................................5
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Dist Council v. WCC memorandum of law
PRELIMINARY STATEMENT
Defendant Association of Wall-Ceiling & Carpentry Industries of New York, Inc.
(WCC) submits this Memorandum of Law in Support of its Motion for Summary Judgment
confirming an Arbitration Award dated July 22, 2014, against the plaintiff union, New York City
and Vicinity District Council of the United Brotherhood of Carpenters and Joiners of America
(District Council) and for summary judgment against the District Council as to liability on the
WCCs Second Counterclaim.
STATEMENT OF FACTS
1
The WCC is an employers association consisting of approximately 150 company-
members that are in the business of drywall and carpentry construction work. The WCC is the
collective bargaining representative for its members in negotiations with several unions,
including the District Council. The geographical jurisdiction of the District Council for
carpentry work is the five boroughs of New York City. The WCCs contractor members are
located throughout the broader New York metropolitan area and perform work both within the
geographical jurisdiction of the District Council as well as in the geographical jurisdiction of
other locals and regional district councils (i.e. Long Island, Westchester County, New Jersey,
Connecticut and beyond). All of these locals and district councils including the New York
District Council are affiliated with and chartered by the UBC.
In order to facilitate and provide the terms pursuant to which contractors can employ
UBC union carpenters in geographical areas outside their home locals, the UBC issues and
executes international agreements. By way of example, these international agreements allow
1
The factual references are from the Arbitration Award, Rosen Declaration, Ex. 1.
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union carpenters from locals in Long Island to work on projects in New York City and union
carpenters from New York City locals to work on projects outside the City. These agreements
effectively allow UBC union carpenters from any jurisdiction to work anywhere in the United
States.
The UBCs constitution provides it with the authority to execute such agreements. The
constitution further provides that constituent local union and district councils, such as the District
Council herein, must abide by and recognize such agreements.
These agreements have been in effect and have been recognized by the District Council
and the UBC for decades.
Some of the WCCs members have their own international agreements directly with the
UBC. In addition, the WCCs national organization, the Association of the Wall and Ceiling
Industry (AWCI) had an international agreement with the UBC that members of its local
chapter, such as the WCC, had invoked. All of those agreements were consistently recognized
for many years, if not decades, by the District Council.
In May, 2013, the AWCIs international agreement with the UBC expired. A successor
agreement was not negotiated. The WCC then entered into negotiations with the UBC for its
own international agreement. Those negotiations culminated in an international agreement that
was executed on July 1, 2013 (Rosen Declaration, Exhibit 2). The agreement is virtually
identical to the international agreement that the UBC had with the AWCI that the District
Council recognized for decades.
In or about June, 2013, the District Council stopped recognizing and accepting
international agreements when invoked by WCC members. The District Council took the
position that the WCC had given up the right of its members to invoke international agreements
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in the negotiations for the new collective bargaining agreement (CBA) that was approved by
this court and became effective in May, 2013 (Rosen Declaration Exhibit 3).
After several meetings and exchanges attempting to resolve the dispute, the parties
agreed to submit the dispute to binding arbitration pursuant to the CBA. Arbitrator Howard
Edelman, one of the arbitrators named in the CBA, was appointed to hear the dispute.
The parties made written submissions to the arbitrator concerning the nature of the
dispute. A hearing was held on April 17, 2014. The parties made written post-hearing
submissions as well.
The focus at the arbitration was on the provisions in the International Agreement and the
CBA regarding two-man jobs (that is, jobs to be performed with two carpenters). The
International Agreement has historically allowed employers to perform jobs with two carpenters
using union carpenters from any local without a steward assigned by the union. The
International Agreement allows the local or district council having jurisdiction over the
geographical area where the job is being performed to designate one of the two carpenters to
perform the duties of a steward.
The provision in the new CBA between the WCC and the District Council also allows
employers to perform jobs with two carpenters without a steward. Under this provision both
carpenters must be from locals that are part of the District Council.
Arbitrator Edelman framed the issue to be decided in the arbitration as follows:
Does the International Agreement supersede the parties collective
agreement with respect to the issue of two-man jobs?
Arbitrator Edelman decided the issue in an opinion and award dated July 22, 2014
(Award). Arbitrator Edelman found that the WCC had not negotiated away its members right
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to invoke the International Agreement in the negotiations that resulted in the new CBA. He
expressly determined that members of the WCC had the right to invoke the International
Agreement with respect to two-man jobs. A copy of the Award is annexed to the Rosen
Declaration as Exhibit 1.
Under Article XIII, Section 4 of the CBA, arbitrators awards are final and binding upon
both parties.
Despite the clear terms of the Award and the fact that the CBA expressly provides that
such awards are final and binding, the District Council has continued to refuse to accept and
recognize International Agreements when invoked by WCC members.
On or about August 5, 2014, the District Council commenced the instant action seeking
to vacate the Award (a copy of the Complaint is annexed to the Rosen Declaration as Exhibit
4).
The WCC has filed an Answer to the Complaint and asserted two (2) counterclaims. The
first counterclaim seeks confirmation of the Award. The second counterclaim seeks damages
based upon the District Councils unjustified refusal to recognize the International Agreement
when invoked by WCC members. A copy of the Answer is annexed to the Rosen Declaration as
Exhibit 5.
By email dated August 11, 2014, counsel for the District Council expressly advised
counsel for the WCC that the District Council was not going to recognize the International
Agreement until the instant proceeding was resolved. (Rosen Declaration Exhibit 6)
The WCC presented an application by Order to Show Cause seeking an order directing
the District Council to comply with the Award pending resolution of this action. This court
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issued an order directing that the matter be heard on an expedited basis and setting forth a
briefing schedule. A copy of that order is annexed to the Rosen Declaration as Exhibit 7.
The District Councils position with respect to International Agreements and its positions
in this proceeding are without merit. The International Agreements that WCC members are
parties to are valid and binding upon the District Council. The WCC did not negotiate away its
members rights to invoke International Agreements during the negotiations for a new CBA.
The parties CBA expressly provides that disputes are to be resolved by arbitration and
the District Council agreed to submit the dispute to binding arbitration for resolution. The CBA
expressly provides that arbitration awards are final and binding. The arbitrator ruled that the
District Council has to recognize International Agreements when invoked by WCC members.
Unless and until the Award is altered or vacated, the District Council is obligated to comply with
the Award. Moreover, the law is clear that arbitration awards particularly those rendered
pursuant to a labor dispute under a collective bargaining agreement are entitled to great
deference and are routinely enforced.
WCC submits that summary judgment confirming the Award and/or an order directing
the District Council to comply with the Award is warranted. In addition, based upon the District
Councils unjustified refusal to recognize International Agreements when invoked by WCC
members and its failure to comply with the arbitration award the WCC is entitled to judgment as
to liability against the District Council on its Second Counter Claim. The matter should be set
down for a hearing to determine the WCCs damages.
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POINT I
STANDARD FOR SUMMARY JUDGMENT
Summary judgment may be granted when it is shown that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ. Pro.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265
(1986). In deciding such a motion, the district court reviews the evidence and draws all
reasonable inferences in the light most favorable to the non-moving party. See, e.g., Hemphill v.
Schott, 141 F.3d 412, 415 (2d Cir. 1998); Giano v. Senkowski, 54 F.3d 1050, 1052 (2d Cir.
1995). Once the moving party meets its initial burden demonstrating the absence of a genuine
issue of material fact, the non-moving party meets its initial burden demonstrating the absence of
a genuine issue of material fact, the non-moving party must do more than simply show that there
is some metaphysical doubt as to the material facts in order to defeat the motion. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 US 574, 586 (1986); Fed. R. Civ. Pro. 56(e(2).
Neither conclusory allegations nor speculation can substitute for hard evidence showing that
[its] version of the events is not wholly fanciful. Woodman v. WWOR-TV, Inc., 411 F.3d 69, 75
(2d Cir. 2006). The non-moving party must set forth specific facts showing that there is a
genuine issue for trial or summary judgment will be granted. Andersen v. Liberty Lobby, 477
US 242, 250 (1986). Summary judgment is mandated when the evidence is insufficient to
support the non-moving partys case. Distasio v. Perkin Elmer Corp., 153 F.3d 55, 61 (2d Cir.
1998). See also, Toriola v. New York City Transit Authority, 2005 WL 550973 ** 3-4
(allegations, denials, conjectures or conclusory statements do not defeat summary judgment).
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POINT II
DEFENDANT WCC IS ENTITLED TO SUMMARY
JUDGMENT CONFIRMING THE ARBITRATION AWARD
Confirmation of a labor arbitration award under Section 301 of the LMRA, 289 U.S.C.
185, and Section 9 of the Federal Arbitration Act (FAA), 9 U.S.C. 9, is a summary
proceeding that merely makes what is already a final arbitration award a judgment of the Court.
Florasynth, Inc. v. Pickholz, 750 F.2d 171, 176 (2d Cir. 1984). Federal courts are extremely
deferential in their review of awards issued by arbitrators acting within authority granted by a
collective bargaining agreement. See United Steel Workers of America v. Enterprise Wheel and
Car Corp., 363U.S. 593,596, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960) (The refusal of courts to
review the merits of an arbitration award is the proper approach to arbitration under collective
bargaining agreements.); Intl Chemical Workers Union Local No. 227 v. BASF Wyandotte
Corp., 774 F.2d 43, 45 (2d Cir. 1985) ([I]n cases in which the arbitrator acts within authority
granted by contract, the courts must defer to the arbitrators decision.); In re Marine Pollution
Service, Inc. T/A, 857 F.2d 91, 94 (2d Cir. 1988) (An arbitrators decision is entitled to
substantial deference, and the arbitrator need only explicate his reasoning under the contract in
terms that offer even a barely colorable justification for the outcome reached in order to
withstand judicial scrutiny.) (internal quotations omitted).
Indeed, none of the statutory grounds for vacation, modification or correction of an
arbitration award included in the FAA relate to the underlying merits of the award. See 9 U.S.C.
10, 11; Florasynth, 750 F.2d at 176 (The grounds for vacation are narrow. Courts may not
question provisions of the award itself; rather, they may vacate only for conduct that has
prejudiced the rights of the parties.) Moreover, the showing required to avoid summary
confirmation is high. Ottley v. Scvhwartzberg, 819 F.2d 373, 376 (2d Cir. 1987); see also
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National Bulk Carriers, Inc. v. Princess Management Co., 597 F.2d 819, 825 (2d Cir. 1979)
(only clear evidence of impropriety justifies a denial of summary confirmation.) (internal
quotations omitted).
There can be no dispute that the Award at issue was in all respects regular and properly
issued. The parties each had a full opportunity to provide written submissions to the arbitrator
setting forth their positions in advance of the hearing. The parties were given every opportunity
to present their evidence and witnesses at the hearing. The parties were given an additional
opportunity, at the express request of the District Council, to make written post-hearing
submissions.
The Award reflects that the arbitrator gave full consideration to every argument advanced
by the District Council and all the evidence and testimony produced by the District Council. The
Award clearly reflects that the arbitrator carefully analyzed the applicable agreements and facts.
Whether or not the Respondent agrees with the factual findings or the arbitrators
application of the facts and relevant Agreements is irrelevant. See e.g., Major League Baseball
Players Assn v. Garvey, 332 U.S. 504, 509, 121 S.Ct. 1724 (2001) (courts may not review labor
arbitration awards despite allegations of factual error): Westerbeke Corp. v. Daihatsu Motor Co.,
304 F.3d 200, 213 (2d Cir 2002) (arbitrators factual findings are not submit to judicial
challenge, and cases cited therein): Local 97, IBEW v. Niagara Mohawk Power Corp., 195 F.3d
117, 124 (2d Cir. 1999) (court bound by arbitrators factual findings); New York Hotel & Motel
Trades Council AFL-CIO v. O&O Properties Corp. 2007 WL 80864 (SDNY) (court not
empowered to challenge factual determinations of OIC.) Therefore, under Supreme Court
authority and the precedent of this Court, the Award should be confirmed.
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POINT III
WCC WOULD BE ENTITLED TO INJUNCTIVE RELIEF
In its Order of August 21 2014 (Rosen Declaration, Exhbiti 7), the Court directed the
WCC to include its arguments and authorities in support of its request for injunctive relief.
While the Courts determination to hear this matter on an expedited basis renders the
request for interim injunctive relief somewhat moot, the courts do have the clear authority to
issue preliminary injunctions requiring parties to comply with arbitration awards while
proceedings to either vacate or confirm the award are pending. See Buffalo Forge v.
Steelworkers of America, AFL-CIO, 428 U.S. 397, 96 S.Ct. 3141 (1976) (Where the issue
arbitrated and the strike found illegal, the relevant federal statutes as construed in our cases
would permit an injunction to enforce the arbitration award. )
In Boston Celtics Limited Partnership v. Shaw, 908 F.2d 1041 (1
st
Cir. 1990), the court
stated:
Well-established public policy embodied in statute, see 29 U.S.C
172(d), in Supreme Court decisions, see United Steelworkers v.
American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403
(1960); United Steelworkers v. Warrior & Gulf Navigation Co.,
363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United
Steelworkers v. Enterprise Wheel & Car Corp., supra, and in
numerous lower court opinions, strongly favors judicial action to
effectuate [ ] the means chosen by the parties for settlement of
their differences under a collective bargaining agreement.
American Mfg. Co., 363 U.S. at 566, 80 S.Ct. at 1346. That
judicial action clearly may include a preliminary injunction
enforcing an arbitration award [citation omitted].
In Bricklayers, Masons, Marble and Tile Setters Protective & Benevolent Union No. 7 of
Nebraska v. Lueder Construction Company, 346 F. Supp. 558 (U.S.D.C.D. Neb. 1972), the court
stated:
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It is well settled that this Court has jurisdiction under 301,
L.M.R.A., 29 U.S.C.A. 185, to enforce a binding award of an
arbitrator made pursuant to a Collective Bargaining Agreement
between the parties, as well as to enforce a Collective Bargaining
Agreement entered into by such parties. United Steelworkers of
America v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4
L.Ed.2d 1403 (1960); Textile Workers v. Lincoln Mills, 353 U.S.
448, 458, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); Philadelphia
Marine Trade Assn v. International Longshoremens Assn, Local
1291, 365 F.2d 295 (3
rd
Cir. 1966).
Indeed, with the evolution of cases, such power not only exists, but
the liberal and broad exercise of same is encouraged by the
Supreme Court to effectuate the federal labor grievances pursuant
to arbitration proceedings under Collective Bargaining
Agreements. Lincoln Mills, supra.
The Supreme Court has said that the arbitral process between
management and labor for public policy reasons is a most desirable
result, since it guarantees self-government between the parties in
settlement of disputes. Independent Oil Workers Union, Local
117 v. American Oil Company, 296 F.Supp. 650, 656 (D.Kan.
1969)
See also International Longshoremens & Warehousemens union Local 34 v.
Cargill, Inc., 357 F.Supp. 608 (N.D. Ca. 1973)
Thus, the issuance of a temporary restraining order and preliminary injunction requiring
the plaintiff to comply with the arbitration award, issued pursuant to a process it agreed to and is
bound by, is entirely appropriate.
In the present case, defendant WCC is also entitled to a temporary restraining order and
preliminary injunction under the standard analysis under the general principles of equity. To
obtain a temporary restraining order or a preliminary injunction, the movant has the burden to
show: (1) that it will suffer irreparable harm if the order does not issue; and (2) that it can
demonstrate either (a) a likelihood of success on the merits or (b) sufficiently serious questions
on the merits to make them fair ground for litigation; or (c) a balance of hardships that tips in the
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moving partys favor. Genessee Brewing Co. v. Stroh Brewing Co., 124 F.3d 137, 142 (2d Cir.
1997) (preliminary injunction); Jolly v. Coughlin, 76 F.3d 468, 473 (2d Cir. 1996); Jackson
Dairy, Inc. v. H.P. Hood & Sons, Inc. 596 F.2d 70, 72 (2d Cir. 1979); Warner-Lambert, Co. v.
Northside Associates, Inc., 922 F.Supp. 840 (S.D.NY. 1996), revd in part on other grounds, 86
F.3d 3 (2d Cir. 1996); Coors Brewing Co. v. Anheuser-Busch Companies, Inc., 802 F.Supp. 965
(S.D.N.Y. 1992); Local 1814 Intl. Longshoremans Assoc. AFL-CIO v. New York Shipping
Assoc. Inc., 965 F.2d 1224, 1228 (2d Cir. 192 (temporary restraining order); Reuters Ltd. V.
United Press Intl., 903 F.2d 904, 907 (2d Cor. 1990); Euro Brokers Capital Markets, Inc. v.
Flinn, 1993 WL 213026, *1 (S.D.N.7. 1993); Towers Financial Corp. v. Dun & Bradstreet, Inc.,
803 F.Supp. 820, 822 (S.D.N.Y. 1992).
In the present case, WCC can clearly demonstrate a likelihood of success on the merits.
It seeks confirmation of an arbitration award rendered pursuant to a CBA. As set forth, supra,
such awards are granted great deference by the courts.
WCC members will suffer irreparable harm if the District Council is not compelled to
comply with the Award. Many WCC members are small contractors with offices outside the five
boroughs of New York. They perform a significant amount of their work in the five boroughs of
the City of New York. Many of those jobs are small jobs that can be performed with two
carpenters. These contractors rely upon the ability to use their regular, stable, experienced
workforce of carpenters to perform these jobs productively and competitively. In some cases,
their regular carpenters are members of locals on Long Island, or in Westchester or New Jersey.
They can only do these two-man jobs using their regular workers by relying upon the
International Agreement.
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In many cases, these jobs involve specialty work with which the employers regular union
carpenters have particular experience. This puts an additional premium on their need to use their
regular employees.
If these contractors are limited to the two-man job provision of the CBA, they have to
match any of their own employees with members of the District Council from the District
Councils Out of Work list. This greatly adds to their labor costs by adding additional and
unnecessary manpower. It also forces the contractors to use carpenters with whom they have no
experience or familiarity or who dont have the experience in the specialty work required which
can be greatly unproductive on a small job. This greatly impairs their ability to remain
competitive for these jobs or to perform them productively or profitably.
In addition, upon information and belief, the District Council is recognizing international
agreements when invoked by out-of-town contractors who are not members of the WCC. Thus,
these out-of-town contractors can work in the City of New York using any two carpenters of
their choosing. This gives them a great competitive advantage over WCC members competing
for the same work.
Lastly, the balance of the equities clearly favors the WCC and its members. A moving
party may establish a balance of hardships in its favor by demonstrating that the injury it will
suffer if the injunction does not issue is greater than the harm to the non-moving party if the
injunction is issued. Roso-Lino Beverage Distributors, Inc. v. Coca-Cola Bottling Co. of New
York, Inc., 749 F.2d 124 (2d Cir. 1984); Gund, Inc. v. Golden Bear Co., 1992 WL 392692
(S.D.N.Y. 1992). In the present case, as set forth above, WCCs members face significant
hardship and irreparable harm by the continued denial of access to International Agreements.
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Dist Council v. WCC memorandum of law
The District Council will not suffer any harm or hardship if it as required to comply with
the Award. The District Council routinely accepted the invocation of International Agreements
for decades up to and including June, 2013. Accepting the agreements requires absolutely no
additional or different administrative effort on its part.
POINT IV
WCC IS ENTITLED TO SUMMARY JUDGMENT AS TO
LIABILITY ON ITS SECOND COUNTER CLAIM
WCC Second Counter Claim seeks money damages from the District Council based
upon its unjustified failure and refusal to recognize International Agreements when invoked by
WCC members since June, 2013 and to comply with the Award. The District Councils actions
have resulted in WCC members losing business opportunities and incurring additional and
unnecessary labor costs on jobs.
The arbitrator has determined that the District Councils refusal to recognize International
Agreements when invoked by WCC members was improper and unjustified. There is no
justification for the District Councils failure to comply with the Award, especially in light of the
CBAs provisions that expressly state that arbitration awards are final and binding. Thus, the
WCC submits that it is entitled to the entry of an order granting it summary judgment as to
liability on its Second Counter Claim. The matter should then be set down for a hearing to
assess damages.
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Dist Council v. WCC memorandum of law
CONCLUSION
Based upon the foregoing, defendant Association of Wall-Ceiling & Carpentry Industries
of New York, Inc. respectfully requests that this Court issue an Order confirming the Arbitration
Award and directing the District Council to immediately comply with it and granting the
defendant summary judgment as to liability on its Second Counterclaim.
Dated: September 8, 2014
Respectfully submitted,
McElroy, Deutsch, Mulvaney & Carpenter, LLP
Attorneys for Defendant
By: /s/ Mark A. Rosen
Mark A. Rosen (MAR 2030)
88 Pine Street
24
th
Floor
New York, New York 10005
212.483.9490
mrosen@mdmc-law.com
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