case 1-14-cv-06091-rmb document 14 filed 09:11:14

Dist Council v. WCC memorandum of law

UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK

NEW YORK CITY AND VICINITYDISTRICT COUNCIL OF THE UNITEDBROTHERHOOD OF CARPENTERSAND JOINERS OF AMERICA,

Plaintiff,

- against -

THE ASSOCIATION OF WALL-CEILING & CARPENTRYINDUSTRIES OF NEW YORK, INC.,

Defendant.

:::::::::::::::

Index No. 14-cv-6091

DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FORSUMMARY JUDGMENT

McElroy, Deutsch, Mulvaney & Carpenter, LLPAttorneys for Defendant88 Pine Street24th FloorNew York, New York 10005212.483.9490

On the brief:Mark A. Rosen

Case 1:14-cv-06091-RMB Document 14 Filed 09/11/14 of 19


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 JUDGMENTCONFIRMING 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 ONITS SECOND COUNTER CLAIM.............................................................................13

CONCLUSION..............................................................................................................................14


Dist Council v. WCC memorandum of law 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 (1st Cir. 1990).....................................................................................................8

Bricklayers, Masons, Marble and Tile Setters Protective & Benevolent Union No. 7 ofNebraska 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


Dist Council v. WCC memorandum of law iii

Independent Oil Workers Union, Local 117 v. American Oil Company,296 F.Supp. 650 (D.Kan. 1969).................................................................................................9

Int’l 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 Int’l. Longshoreman’s 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 Ass’n 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 Int’l.,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


Dist Council v. WCC memorandum of law 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), rev’d 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



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

WCC’s Second Counterclaim.

STATEMENT OF FACTS1

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 WCC’s 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”.


2Dist Council v. WCC memorandum of law

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 UBC’s 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 WCC’s members have their own international agreements directly with the

UBC. In addition, the WCC’s 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 AWCI’s 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



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’ collectiveagreement 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



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 Council’s 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



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 Council’s 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

Council’s 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 WCC’s damages.



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 party’s 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).



POINT II

DEFENDANT WCC IS ENTITLED TO SUMMARYJUDGMENT 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.”); Int’l 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 arbitrator’s decision.”); In re Marine Pollution

Service, Inc. T/A, 857 F.2d 91, 94 (2d Cir. 1988) (“An arbitrator’s 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



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 arbitrator’s

application of the facts and relevant Agreements is irrelevant. See e.g., Major League Baseball

Players Ass’n 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) (arbitrator’s 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 arbitrator’s 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.



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 Court’s 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 (1st 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); UnitedSteelworkers v. Enterprise Wheel & Car Corp., supra, and innumerous lower court opinions, strongly favors judicial action to“effectuate [ ] … the means chosen by the parties for settlement oftheir differences under a collective bargaining agreement….”American Mfg. Co., 363 U.S. at 566, 80 S.Ct. at 1346. Thatjudicial action clearly may include a preliminary injunctionenforcing 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:



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 anarbitrator made pursuant to a Collective Bargaining Agreementbetween the parties, as well as to enforce a Collective BargainingAgreement entered into by such parties. United Steelworkers ofAmerica v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4L.Ed.2d 1403 (1960); Textile Workers v. Lincoln Mills, 353 U.S.448, 458, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); PhiladelphiaMarine Trade Ass’n v. International Longshoremen’s Ass’n, Local1291, 365 F.2d 295 (3rd Cir. 1966).

Indeed, with the evolution of cases, such power not only exists, butthe liberal and broad exercise of same is encouraged by theSupreme Court to effectuate the federal labor grievances pursuantto arbitration proceedings under Collective BargainingAgreements. Lincoln Mills, supra.

‘The Supreme Court has said that the arbitral process betweenmanagement and labor for public policy reasons is a most desirableresult, since it guarantees self-government between the parties insettlement of disputes.” Independent Oil Workers Union, Local117 v. American Oil Company, 296 F.Supp. 650, 656 (D.Kan.1969)

See also International Longshoremen’s & Warehousemen’s 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



moving party’s 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), rev’d 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 Int’l. Longshoreman’s 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 Int’l., 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.



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

Council’s 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 don’t 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, WCC’s members face significant

hardship and irreparable harm by the continued denial of access to International Agreements.



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 TOLIABILITY 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 Council’s 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 Council’s refusal to recognize International

Agreements when invoked by WCC members was improper and unjustified. There is no

justification for the District Council’s failure to comply with the Award, especially in light of the

CBA’s 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.



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, 2014Respectfully submitted,

McElroy, Deutsch, Mulvaney & Carpenter, LLPAttorneys for Defendant

By: /s/ Mark A. RosenMark A. Rosen (MAR 2030)88 Pine Street24th FloorNew York, New York [email protected]


case 1-14-cv-06091-rmb document 14 filed 09:11:14

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