in any manner which they may deem proper." See Welfare Fund, 8. Acme also acknowledges the Pension Declaration of Trust states that "the Trustees may take any action necessary to enforce payment of the contributions due hereunder including, but not limited to, proceedings at law or in equity." See Pension Fund, 11. Acme further acknowledges the Trustee's Resolution appoints "permanent arbitrators" to "render arbitration awards concerning delinquent contributions to the Funds." See 18 February 1994 Resolution ("Resolution"), attached as Exhibit 16 to Respondent's Brief.
Acme argues these documents are void of language which permits any arbitration award to be reduced to a judgment in a Federal court. Respondent's Brief at 9. Acme submits the lack of such an agreement requires that the Petition be dismissed for lack of jurisdiction. Id. at 10.
Acme further argues that it is not bound by these documents because "[it] has never entered into any agreement which incorporated the terms of the "declarations of trust" by reference.... Acme has never been a party to any other agreement or contract, aside from the Collective Bargaining Agreements ... that would require Acme to submit any dispute to arbitration." See Declaration of Joseph Spagno ("Spagno Dec."), P 7, attached as Exhibit 3 to Respondent's Brief; Affidavit of Edward M. Cornell, Jr. ("Cornell Aff."), P 7, attached as Exhibit 4 to Respondent's Brief.
a. Reducing Arbitration Awards to Judgment
As stated, to confer jurisdiction, Section 9 requires that the "parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration." See Section 9. What language is required in an agreement to indicate that a judgment of the court is authorized is not set forth in Section 9. While several courts have held that "an explicit agreement between the parties providing for judicial confirmation of an award is not an absolute prerequisite to Section 9 authority to enter judgment on the award," see Booth v. Hume Pub. Inc., 902 F.2d 925, 930 (11th Cir. 1990)(where parties agree that arbitration would be binding and final, district court has authority to enter judgment on award); see also Milwaukee Typographical Union No. 23 v. Newspapers, Inc., 639 F.2d 386, 390 (7th Cir.)(holding that an award deemed to "final, conclusive and binding" implicitly agrees that Federal court intervention may be sought to compel compliance), cert. denied, 454 U.S. 838, 70 L. Ed. 2d 119, 102 S. Ct. 144 (1981); I/S Stavborg v. National Metal Converters, Inc., 500 F.2d 424, 426 (2d Cir. 1974); (consent to entry of judgment can be inferred from the parties' agreement that the arbitrator's decision will be final); Pennsylvania Engineering Corp. v. Islip Resource Recovery Agency, 710 F. Supp. 456, 460 (E.D.N.Y. 1989), other courts require more specific authorization. See Oklahoma City Associates v. Wal-Mart Stores, Inc., 923 F.2d 791, 794-95 (10th Cir. 1991)(in dicta, questioning Booth and Milwaukee Typographical Union); Higgins v. U.S. Postal Service, 655 F. Supp. 739, 743 (D.Me. 1987)(finality clause, absent other corroborating evidence, is not explicit enough to show intent of the parties to have judgment entered); Division 1487 Amalgamated Transit Union v. Kansas City Area Tran. Auth., 485 F. Supp. 856, 859 (W.D.Miss. 1980)(no jurisdiction under Section 9 where agreement did not indicate judgment on arbitration award could be entered).
As stated, the instant dispute arises out of the alleged failure of Acme to pay funds into the Welfare Fund and the Pension Fund. While both the 1990 CBA and the 1993 CBA articulated a grievance procedure which precluded the institution of any action or proceeding in a tribunal by Acme or Local 945,
both permitted such an action "to compel arbitration ... or with respect to the award of an arbitrator." See, e.g., 1993 CBA, Article 26, P 6 (emphasis added). The Collective Bargaining Agreements also provided that the arbitrator's decision would be "final and binding on both parties." Id., Article 26, P 5. Based upon these provisions, the Collective Bargaining Agreements implicitly authorized confirmation of an arbitration award between Acme and Local 945 in a Federal court. The instant arbitration award, however, was not between Acme and Local 945, but between Acme and the Funds.
Moreover, the instant action was brought by Local 945 and the Funds.
The Welfare Declaration of Trust and the Pension Declaration of Trust did not contain language limiting the resolution of disputes to arbitration. Rather, the Welfare Declaration of Trust permitted the Trustees to compel payment "in any manner which they deemed proper." See Welfare Fund at 8. The Pension Declaration of Trust permitted the Trustees to "take any action deemed necessary to enforce payment of the contributions due hereunder including, but not limited to, proceedings at law or equity." See Pension Fund at 11. This broad language demonstrates an intention by the Trustees to avoid limiting themselves to the internal grievance procedures of each collective bargaining agreement, but to contemplate other avenues of recovery as well. The language in the Welfare Declaration of Trust and the Pension Declaration of Trust does not foreclose the opportunity to submit the matter to arbitration under the Board of Mediation.
By way of the Resolution, the Trustees determined to employ a permanent arbitrator of the Board of Mediation to "render arbitration awards concerning delinquent contributions to the Funds." See Resolution.
Pursuant to the rules employed by the Board of Mediation, an arbitration award is deemed to be "final and binding" on the parties. See N.J.A.C. 12:105-5.5.
As discussed, language that indicates the award will be final and binding implicitly permits Federal court intervention to compel compliance. See, e.g., Milwaukee Typographical Union, 639 F.2d 386 at 390; Kallen v. District 1199 National Union of Hospital and Health Care Employees, 574 F.2d 723, 726 (2d Cir. 1978). Cf. Marine Transit Corporation v. Dreyfus, 284 U.S. 263, 276, 76 L. Ed. 282, 52 S. Ct. 166 (1932). Accordingly, if an agreement between the parties to submit the matter to arbitration did exist, the Opinion and Award is subject to judicial enforcement pursuant to Section 9.
b. Existence of an Agreement
Acme, however, argues it is not bound to the language in the Welfare Declaration of Trust, the Pension Declaration of Trust or the Resolution because the Collective Bargaining Agreements, to which Acme is a party, did not reference those documents. Respondents' Brief at 11-12. Acme states: "Petitioners make an enormous leap of logic -- they argue that [Acme] is bound by the Declarations of Trust simply because the Respondent has agreed to make welfare and pension contributions pursuant to the Collective Bargaining Agreements." Id. at 12.
In Plumbers and Steamfitters Local No. 150 Pension Fund v. Vertex Construction Co., 932 F.2d 1443, 1450 (1991), the Eleventh Circuit held that "an employer who, pursuant to a collective bargaining agreement makes contributions to an employee benefit trust fund governed by ERISA, is bound by the trust agreement for that fund, despite the fact that the trust agreement is not incorporated in the collective bargaining agreement." Id. Although the Vertex decision did not discuss the confirmation of an arbitration agreement,
its reasoning is instructive in this instance.
The court cited the fiduciary duty of ERISA trustees to the interests of the participants and beneficiaries and "to protect vigorously the assets of their trusts." Id. The court stated:
It is undisputed that [the employer] was bound under the collective bargaining agreement to make contributions to the Funds. Although the Funds were not a party to the collective bargaining agreement, [the employer] no doubt understood that by accepting the contributions, the Funds were bound to pay benefits to [its] employees. We fail to see how Vertex can avail itself of the benefits of the Funds without also being subjected to the rules that govern them. See Santa Monica Culinary Welfare Fund v. Miramar Hotel Corp., 920 F.2d 1491, 1494 (9th Cir. 1990), [cert. denied, 501 U.S. 1232, 115 L. Ed. 2d 1023, 111 S. Ct. 2855 (1991)].
To hold otherwise would allow employers and unions to bargain away the rights and powers of fund trustees in agreements to which the trustees were not a party. Such a situation ultimately would result in underfunded plans that could not pay appropriate benefits to their beneficiaries.