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International Brotherhood (Flw) of Electrical Workers, Local v. Lighton Industries Inc

December 6, 2010

INTERNATIONAL BROTHERHOOD (FLW) OF ELECTRICAL WORKERS, LOCAL UNION 269; BOARD OF TRUSTEES OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 269 OPINION PENSION FUND, JOINT APPRENTICE & TRAINING FUND, BENEFIT FUND, TEMPORARY DISABILITY FUND, SUPPLEMENTAL FUND, WELFARE FUND AND ANNUITY FUND, PETITIONERS,
v.
LIGHTON INDUSTRIES INC., RESPONDENT.



The opinion of the court was delivered by: Freda L. Wolfson, U.S.D.J

*NOT FOR PUBLICATION

WOLFSON, United States District Judge:

Petitioners International Brotherhood of Electrical Workers, Local Union 269 ("Local 269") and Board of Trustees of the International Brotherhood of Electrical Workers Local Union 269 Pension Fund, Joint Apprentice & Training Fund, Benefit Fund, Temporary Disability Fund, Supplemental Fund, Welfare Fund and Annuity Fund ("Fund Trustees") (collectively, "Petitioners") initiated this action against Lighton Industries Inc. ("Lighton" or "Respondent") to enforce a labor arbitration award obtained by Petitioners against Lighton. Presently before the Court is Petitioners' petition to confirm the arbitration award, as well as Respondent's cross-motion to vacate the arbitration award and for other relief. For the reasons set forth below, the Court confirms the arbitration award, and denies Respondent's motion to vacate the award.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

For the purposes of this motion, the Court will only recount relevant facts. Petitioners are local labor organizations associated with the International Brotherhood of Electrical Workers ("IBEW"), each with its office in Trenton, New Jersey. Respondent is a general, electrical, and solar panel contractor with its principal office in Lakewood, New Jersey. (See P. Aliseo Aff. at ¶

2). Lighton entered into a collective bargaining agreement ("CBA") through the South Jersey National Electrical Contractors Association ("SJ/NECA") with various locals of the IBEW. (See Id. at ¶ 6). This CBA ("Local 269 CBA"), to which Local 269 and Respondent were signatories, covered the period October 1, 2007 through September 30, 2010, and governs the instant dispute. Lighton also has CBAs with bricklayers, building laborers, operating engineers, mechanical contractors, and sheet metal workers. (See Id. at ¶ 7).

According to Paul Aliseo ("P. Aliseo"), Vice President of Lighton, Lighton was invited to bid on the J&J Janssen Pharmaceutical Solar Project ("SPV Farm Project") for SunPower Corp. ("SunPower") in late February / early March 2010. (See Id. at ¶ 4). The SPV Farm Project would consist of the installation of a 4.2 megawatt power tracker system at the Janssen Pharmaceutical SPV Farm, which is located in Tittusville, New Jersey, a geographical area covered by the Local 269 CBA. (See Id.; see also Pet'r's Pet. To Confirm at ¶ 9). On March 8, 2010, Lighton submitted its proposal to SunPower for the SPV Farm Project. (See P. Aliseo Aff. at ¶ 5). On or about March 19, 2010, Local 269 business manager Dennis Doyle ("Doyle") learned of Lighton's bid. (See Pet'r's Pet. To Confirm at ¶ 9). Thereafter, Doyle alleges that he contacted P. Aliseo and told him that certain work on the SPV Farm Project should be assigned to Local 269 workers pursuant to the Local 269 CBA, which provides that bargaining unit work includes "[a]ll handling settling, and installation of all photovoltaic and related equipment, including all components for the mounting and support thereof." (See Id. at ¶ 10; see also Watson Cert., Ex. B, Article IX).

On or about April 2, 2010, Doyle learned that Lighton was awarded the SPV Farm Project. (See Pet'r's Pet. To Confirm at ¶ 11). Doyle also learned that "Lighton had subcontracted a portion of the SPV Farm Project work, which includes the unloading, handling, and installation of components specifically intended for the mounting and support of the SPV" to J. Fletcher Creamer & Son ("Creamer"), which is not a signatory to the Local 269 CBA. (See Id. at ¶¶ 11-12). Doyle believed that this work constituted bargaining unit work pursuant to the Local 269 CBA, and that by subcontracting the SPV Farm Project work to Creamer, Lighton was in violation of the CBA. (See Id. at ¶ 12). According to P. Aliseo, "[a]t the time of [Lighton's] initial proposal to SunPower, Lighton intended to subcontract the steel erection work . . . for the SPV Farm Project to [Creamer] . . . [because] Lighton does not possess the expertise that Creamer possessed in [these] areas[.]" (P. Aliseo Aff. at ¶ 8). P. Aliseo further claims that while SunPower did verbally accept Lighton's proposal around the time alleged by Doyle, this acceptance was "subject to the award and execution of a [s]ubcontract [with Creamer]." (See Id.).

Thereafter, on or about April 20, 2010, Doyle had a telephone conversation with Gerald Aliseo ("G. Aliseo"), President of Lighton. (See Id. at ¶ 13; see also G. Aliseo Aff. at ¶¶ 1, 3). Doyle claims that he told G. Aliseo that the subcontracting of the work to Creamer constituted a violation of Articles 2.10(B) and 2.13 of the Local 269 CBA because Creamer did not recognize the IEBW or one of its local unions as the collective bargaining representative of its employees. (See Id.). Subsequently, SJ/NECA chapter manager Joseph A. Knecht, Jr. ("Knecht") encouraged Local 269 to meet with Lighton so that the dispute could be resolved without resorting to formal proceedings. (See Respt's' Cross-Pet. at ¶ 14). P. Aliseo and G. Aliseo met with Doyle, but the parties were unsuccessful in resolving their dispute. (See Pet'r's Pet. To Confirm at ¶ 14). Lighton claims that immediately after the meeting, G. Aliseo spoke with Sam Pratt ("Pratt"), project manager for SunPower, and informed him that Local 269 was continuing to claim the rights to the erection, welding, and mounting of the structural steel support system. (See Respt's' Cross-Pet. at ¶ 20). Pratt informed Lighton that SunPower was no longer planning on subcontracting that portion of the work to Lighton, and instead would be subcontracting the work directly to Creamer. (See Id.). Ultimately, SunPower made the decision to award separate subcontracts to both Lighton and Creamer covering different scopes of work. ( See Pratt Aff., ¶¶ 2-4). Indeed, SunPower has two separate subcontracts, one directly with Creamer and one directly with Lighton; the Creamer subcontract contains the site construction, foundations and steel erection in its scope of work, while the Lighton subcontract contains the electrical work in its scope of work. (See Urban Aff., ¶ 3).

On April 28, 2010, Local 269 filed a grievance pursuant to Article 1.6 of the Local 269 CBA and requested that the Labor-Management Committee ("LMC") hold a hearing within 48 hours as required by the Local 269 CBA. (See Pet'r's Pet. To Confirm at ¶ 15; see also Watson Cert., Ex. B, Article IX). The grievance alleged that Lighton had violated provisions of the Local 269 CBA by subletting, assigning, and/or transferring the handling, setting, and installation of photovoltaic and related equipment to Creamer for the SPV Farm Project. (See G. Aliseo Aff., Ex. E.). Specifically, the grievance alleged that Lighton was in violation of Sections 2.10(B) and 2.13(A), which provide:

2.10 (B) The subletting, assigning, or transfer by an individual [e]mployer of any work in connection with electrical work to any person, firm or corporation not recognizing the IBEW or one of its Local Unions as the collective bargaining representative of his employees on any electrical work in the jurisdiction of this or any other Local Union to be performed at the site of the construction, alteration, painting or repair of a building, structure or other work, will be deemed a material breach of this Agreement.

2.13 (A) In order to protect and preserve, for the employees covered by this Agreement, all work heretofore performed by them, and in order to prevent any device or subterfuge to avoid the protection and preservation of such work, it is hereby agreed as follows: If and when the [e]mployer shall perform any on-site construction work of the type covered by this Agreement, under its own name or under the name of another, as a corporation, company, partnership, or any other business entity including a joint venture, wherein the Employer, through its officers, directors, partners or stockholders, exercises either directly or indirectly management control or majority ownership, the terms and conditions of this Agreement shall be applicable to all such work. All charges or violations of this Section shall be considered as a dispute and shall be processed in accordance with the provisions of this Agreement covering the procedure for the handling of grievances and the final and binding resolution of disputes. (See Pet'r's Pet. To Confirm at ¶ 16; see also Watson Cert., Ex. B). Local 269 requested the remedies provided by Section 2.13(B)-(C) be awarded by the LMC.

(B) As a remedy for violations of this Section, the [LMC] . . . are empowered, in their discretion and at the request of the Union, to require an Employer to (1) pay to affected employees covered by this Agreement, including registered applicants for employment, the equivalent of wages lost by such employees as a result of the violations; and (2) pay into the affected joint trust funds established under this Agreement any delinquent contributions to such funds which have resulted from the violations. Provision for this remedy herein does not make such remedy the exclusive remedy available to the Union for violation of this Section nor does it make the same or other remedies unavailable to the Union for violations of other Sections or other Articles of this Agreement.

(C) If, as a result of violations of this Section, it is necessary for the Union and/or the Trustees of the joint trust funds to institute court action to enforce an award rendered in accordance with subsection (B) above, or to defend an action which seeks to vacate such award, the Employer shall pay any accountants' and attorneys' fees incurred by the Union and/or Fund Trustees, plus cost of the litigation, which have resulted from the bringing of such court action. (See Id.).

Several letters dated April 28, 2010, were exchanged between the parties. First, Knecht, on behalf of the LMC, sent a letter to G. Aliseo and Lighton to inform them of the grievance filed by Local 269 and scheduling Lighton and Local 269 to participate in arbitration before the LMC on April 30, 2010. (See G. Aliseo Aff., Ex. D). Knecht's letter "recommended that a representative from [Lighton] be present at this hearing[,]" and warned Lighton that it would be "represented by the SJ/NECA and informed of the outcome" if Lighton failed to have a representative present. (See Id.). Second, Doyle sent a letter to Knecht and Lighton, in which the circumstances surrounding the alleged violations were detailed. (See G. Aliseo Aff., Ex. E). Further, Doyle referenced Section 9.2 of the Local 269 CBA, which provides that, "[a]ll handling, setting, and installation of all photovoltaic and related equipment, including all components for the mounting and support thereof" falls under the Local 269 CBA. (See Id.). Doyle also noted that "given Lighton's representation by the [SJ/NECA] and the labor relations policy of swiftly and economically resolving disputes, the [LMC's] long-standing procedure is that attorneys are not admitted into the hearing." (See Id.). Third, G. Aliseo sent a letter to the LMC informing it of Lighton's intention to not attend the arbitration before the LMC "due to the fact that our client, [SunPower], has re-assigned the disputed scope of work to another contractor." (See G. Aliseo Aff., Ex. G).

On April 30, 2010, the arbitration was held before the LMC. (See Watson Cert., Ex. C at p. 1). Lighton did not attend and was represented by Knecht of the SJ/NECA. (See Id.at p. 5). Doyle testified on Local 269's behalf. (See Id. at p. 4). Knecht told the LMC that "Lighton had expressly approved of NECA's representation at the hearing by Mr. Knecht" and had not requested a postponement. (See Id.). Lighton, however, argues that it did not authorize Knect to act as its representative. (P. Aliseo Aff. at ¶ 20). Knecht testified:

i) that Lighton ha[d] not in the past performed the type of work that it sought to sub-contract to Creamer; ii) that Lighton did not believe that Local 269 could provide qualified workers to perform the work; iii) that Lighton also performs work as a general contractor; and iv) that [G. Aliseo], in a telephone conversation on April 29, 2010, told [Knecht] that Lighton did not have an executed contract with Creamer[.] (See Watson Cert., Ex. C at p. 5). Upon cross-examination, Knecht stated that Lighton had solicited a price from Creamer on its own initiative because it did not believe that Local 269 or Lighton was capable of providing qualified workers to perform the work, and confirmed that Lighton had informed SunPower of the dispute with Local 269. (See Id. at p. 6).

The LMC found Doyle's testimony and documents credible, and "[s]pecifically . . . credit[ed] [Doyle's] undisputed testimony that [G. Aliseo] informed him that Lighton had a contract(s) to perform the disputed work and thus was in control thereof." (See Id.). While the LMC found portions of Knecht's testimony on behalf of Lighton credible, it did find that "Lighton was aware of its obligations under the [Local269 CBA] with respect to subcontracting." (See Id.at p. 7).Further, the LMC noted that it was drawing an adverse inference from G. Aliseo and P. Aliseo's "failure and refusal to attend the hearing and submit to questioning about its role in the matter." (See Id.).The LMC also stated that, in rendering its decision, it had considered Lighton's decision to inform SunPower of the dispute with Local 269, which ...


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