1997 U.S. Dist. LEXIS 16522, *

UNITED DERRICKMEN & RIGGERS ASSOCIATION, LOCAL UNION NO. 197 of the INTERNATIONAL ASSOCIATION OF BRIDGE, STRUCTURAL and ORNAMENTAL IRON WORKERS, AFL-CIO, Petitioner, -against- MASON TENDERS, LOCAL 59 of the LABORERS INTERNATIONAL UNION OF NORTH AMERICA AFL-CIO, its successors and/or assigns, including MASON TENDERS OF GRATER NEW YORK, LOCAL 79, Respondent.

96 CV 2706

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK

1997 U.S. Dist. LEXIS 16522


October 2, 1997, Decided

DISPOSITION:  [*1]  Local 197's motion for confirmation of arbitration award granted. Its motion for declaration that Local 59 violated the bylaws of Trades Council denied. Local 197's motion for damages denied and Local 79's cross-motion that claim for compensatory damages be dismissed granted.

CORE TERMS: arbitration award, compensatory damages, jobsite, summary judgment, arbitrator, jurisdictional, confirmation, declaration, partial, cross-motion, requesting, confirming, successors, assigns, vacated, bylaws, local union, jurisdictional dispute, arbitration, mediation, breached, refrain, binding, by-laws

COUNSEL: For petitioner: COLLERAN, O'HARA & MILLS, Garden City, NY.
 
For respondent: MYSAK, GORLICK, KRAVITZ & LISTHAUS, P.C., New York, NY.

JUDGES: Eugene H. Nickerson, U.S.D.J.

OPINIONBY: Eugene H. Nickerson

OPINION: MEMORANDUM AND ORDER
 
NICKERSON, District Judge:

Petitioner United Derrickmen & Riggers Association, Local Union No. 197 of the International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Local 197) seeks confirmation and enforcement of an arbitration award declaring that it is entitled to complete the stonework at certain jobsites located in New York City. The award was issued against respondent Mason Tenders, Local 59 of the Laborer's International Union of North America, AFL-CIO (Local 59), and its successors and/or assigns, including Mason Tenders of Greater New York, Local 79 (Local 79).

Local 197 moves for partial summary judgment, requesting that the arbitration award be confirmed  [*2]  and damages assessed against Local 59 and Local 79. Local 79 has filed a cross-motion for partial summary judgment, requesting that the claim for compensatory damages be dismissed.

I

In November, 1995 a jurisdictional dispute arose between Local 197 and Local 59 concerning who was entitled to perform the work at several jobsites in New York City.

Both Local 197 and Local 59 are member unions of the AFL-CIO, and of its Building and Construction Trades Department. The constitution of the Department empowers it to resolve jurisdictional disputes between member unions. Consequently, the Department has established a "Plan of Settlement of Jurisdictional Disputes in the Construction Industry," which is binding on all members.

This national plan provides that if a local plan for jurisdictional settlement exists, then that plan governs jurisdictional disputes in that locality. The local plan by which both Local 197 and Local 59 are governed is the New York Plan for the Settlement of Jurisdictional Disputes (New York Plan), which is administered by the Building and Construction Trades Council (the Trades Council) and the Building Trades Employers Association (the Employers Association).  [*3] 

Pursuant to the New York Plan paragraph 2, this matter was submitted for mediation before the Trades Council on December 18, 1995. Because the jurisdictional dispute was not resolved by mediation, it was sent to arbitration before the Executive Committee of the Employers Association on February 28, 1996, as directed by paragraph 4 of the New York Plan.

On March 4, 1996, the Employers Association issued an arbitration award, upon the default of Local 59, granting Local 197 jurisdiction over the work at three job sites: Worth Street at Broadway, Penn Plaza, and Robert Wagner Jr. Park at Battery Park City. There was no appeal of this award.

On June 3, 1996, as a result of a decision by the Second Circuit, Local 59's officers were removed, its charter revoked, and its members consolidated into Local 79.

Local 197 alleges that Local 79 has continued to work at one of the jobsites, violating the arbitrator's decision. On May 29, 1996 it brought this suit against Local 59 and its successors and assigns, including Local 79, pursuant to 29 U.S.C. § 185(a) seeking an area-wide injunction against Local 59 and Local 79, and compensatory damages.

Local 197 has moved for partial summary judgment  [*4]  for confirmation and enforcement of the award, a declaration that Local 59 has breached the constitution and by-laws of the Trades Council and its agreement to be bound by the decisions rendered pursuant to the New York Plan, and an award of damages. Local 79 has filed a cross-motion for partial summary judgment requesting that the court refrain from confirming the award and dismiss the claim for compensatory damages.

II

This court has jurisdiction under 29 U.S.C. § 185(a) to entertain suits for violations of labor contracts. General Drivers Local 89 v. Riss & Co., 372 U.S. 517, 519, 9 L. Ed. 2d 918, 83 S. Ct. 789 (1963). The New York and National Plans both constitute contracts between labor organizations. Drywall Tapers & Pointers Local 1974 v. Local 530 of Operative Plasterers & Cement Masons, 954 F.2d 69 (2d Cir. 1992). Additionally, the AFL-CIO and Department constitutions and bylaws are contracts within the meaning of § 185(a). United Ass'n of Journeymen & Apprentices of the Plumbing & Pipefitting Indus. v. Local 334, 452 U.S. 615, 69 L. Ed. 2d 280, 101 S. Ct. 2546 (1981).

A party who succeeds in a labor arbitration is entitled under section 185 to seek confirmation  [*5]  and enforcement of the award pursuant to the provisions of the Federal Arbitration Act, 9 U.S.C. §§ 1-14. Kallen v. District 1199, Nat'l Union of Hospital & Health Care Employees, 574 F.2d 723 (2d Cir. 1978). An arbitration award should be vacated only if it was obtained through "fraud, corruption, misconduct, action in excess of the arbitrator's powers, [or] complete disregard of the applicable laws." Local 771 v. RKO General, Inc., 546 F.2d 1107, 1113 (2d Cir. 1977). In all other cases, section 9 of 9 U.S.C. provides that "the court must grant such an order" confirming the decision of the arbitrator.

Local 79 argues that the court should refrain from confirming the arbitration award because it has asked the arbitrator to clarify whether the installation of pavers at the Penn Plaza jobsite is part of the work awarded to Local 197 in the arbitration award. A clarification may modify the scope of the award, it contends, and in the interests of judicial economy, the court should wait until the parameters of the award are clear.

Local 79's argument is not compelling. The arbitration award itself is final and binding upon Local 59 and its successors and assigns. Local 59 was  [*6]  empowered under the New York Plan paragraph 7 to appeal the award to the Impartial Jurisdictional Disputes Board for the Construction Industry within seven days of the Employers Association's decision, but it did not do so. Local 59 could have requested a rehearing by the Executive Board based upon new evidence within two weeks of the award, pursuant to paragraph 8 of the New York Plan, but made no such request. When no appeal is taken and no request for rehearing made, "decisions of the Executive Committee are final." Drywall Tapers & Pointers Local 1974 v. Local 530 of Operative Plasterers & Cement Masons Int'l Ass'n, 954 F.2d 69 (2d Cir. 1992).

No argument has been made that the award should be vacated, modified, or corrected under 9 U.S.C. §§ 10-11. Consequently, this court confirms the award.

III

Local 197 has also requested a declaration that Local 59 breached the constitution and by-laws of the Trades Council and its agreement to be bound by the decisions rendered pursuant to the New York Plan by its activities at the disputed jobsites. As this court explained in Drywall Tapers & Pointers Local 1974 v. Local 530 of Operative Plasterers & Cement Masons Int'l Ass'n,  [*7]  1983 WL 2045 (1983), the district court is not the proper body to determine whether activity at a particular jobsite is the kind of work that is the subject matter of an arbitration award. The committees established by the National and New York Plans should establish the scope and day-to-day application of the award. This court's role is limited to the enforcement of particular job decisions by those organs. In addition, a declaration that Local 59 has violated the New York Plan would require a finding of fact inappropriate on a motion for summary judgment.

IV

Finally, Local 197 seeks compensatory damages for lost wages, union dues, and fringe benefit contributions.

This court has held that neither the New York Plan nor the National Plan provides any basis for the award of monetary damages against a local union wrongfully assuming jurisdiction. Drywall Tapers & Pointers Local 1974 v. Local 530 of Operative Plasterers and Cement Masons Int'l Ass'n, 1993 WL 738369 (E.D.N.Y. 1993). The Second Circuit affirmed. Drywall Tapers & Pointers Local 1974 v. Local 530 of Operative Plasterers & Cement Masons Int'l Ass'n, 36 F.3d 235 (2d Cir. 1994).

Although these inter-union agreements  [*8]  do not contemplate an award of damages, this court has equitable authority to devise a remedy if necessary to make an injured party whole. But as this court noted in Drywall, there exists a substantial danger in imposing compensatory damages on unions who incorrectly assume jurisdiction over work tasks. 1993 WL 738369 at *5. Trade groups should resolve jurisdictional disputes voluntarily. Consequently, this court's role is generally limited to issuing orders to enforce arbitration awards.

V

Local 197's motion for confirmation of the arbitration award is granted. Its motion for a declaration that Local 59 violated the bylaws of the Trades Council is denied. Local 197's motion for damages is denied, and Local 79's cross-motion that the claim for compensatory damages be dismissed is granted.

So ordered.
 
Dated: Brooklyn, New York

October 2, 1997

Eugene H. Nickerson, U.S.D.J.