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Tqm Construction Co v. New Jersey Building Construction Laborers District Council

April 4, 2011

TQM CONSTRUCTION CO., PETITIONER,
v.
NEW JERSEY BUILDING CONSTRUCTION LABORERS DISTRICT COUNCIL, LOCAL 394 RESPONDENT.



The opinion of the court was delivered by: Linares, District Judge.

NOT FOR PUBLICATION

OPINION

Currently before the Court is Petitioner TQM Construction Co.'s ("TQM") petition to vacate an arbitration award issued by Bernard Suskewicz dated December 17, 2010, and Respondent New Jersey Building Laborers District Council, Local 394's ("Union" or "Local 394") cross-motion to confirm the arbitration award. The Court has considered the submissions of the parties and decides this matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court denies Petitioner's motion to vacate the arbitration award and grants Respondent's motion to confirm Arbitrator Suskewicz's December 17, 2010 award.

I. BACKGROUND

In or around Summer 2010, TQM was awarded a contract by the Elizabeth Board of Education to perform general contracting work at Roosevelt School in Elizabeth, New Jersey (the "Elizabeth Job"). Brief in Support of Petitioner's Motion to Vacate And/Or Limit the Arbitration Award ("Pet. Brief") at 1. In connection with the Elizabeth Job, TQM hired various subcontractors prior to commencing work. Id. On or about July 28, 2010, construction began on the Elizabeth Job. On that date, Alfred Castagna ("Castagna") a business manager from Local 394 contacted TQM's president, Bill DeVre, to see if TQM would hire union workers. Devre informed Castagna that the Elizabeth Job was not a significant project, but that he would be willing to hire a single Local 394 worker in a limited capacity for the Elizabeth Job. Pet. Brief at 1.

On or about July 28, 2010, DeVre executed a Short Form Agreement, which incorporated the Collective Bargaining Agreement - entitled the 2007-12 Building, Site and General Construction Agreement (the "CBA") - in full. See Short Form Agreement at Pet. Brief, Ex. A ("The undersigned Employer and Unions hereby agree to be bound by the terms and conditions set forth in the 2007-12 Building Site and General Construction Agreement, which agreement is incorporated herein as if set forth in the full."). Petitioner contends that DeVre only signed the agreement because Castagna represented that it was necessary to get the worker paid. Pet. Brief at 1. Further, Petitioner alleges that the CBA was not provided with the Short Form agreement, nor did it ever receive a copy, despite repeated requests, until this matter was submitted to arbitration. Pet. Brief at 2. Article 7.10(a) of the CBA provides in relevant part:

On every job where laborers are employed by an Employer bound by this Agreement, there shall be a laborer Job Steward who shall be a member of the territorial local union where the job is located and who shall be competent in the work to be performed . . . The Job Steward Shall be the first laborer hired and the last laborer to be laid off. No laborer shall be permitted to work without a Job Steward on the job.

The Job Steward shall not be discharged except for just cause and upon twenty-four hours prior written notice to the business manager.

See CBA, Cross- Motion to Confirm Arbitration Award and in Opposition to Plaintiff's Motion to Vacate ("Resp. Brief"), Ex. A.

James Collins ("Collins") was assigned to the Elizabeth Job by Castagna. Pet. Brief at 2. Collins worked on July 28, 2010, August 2, 2010, August 3, 2010 and August 9, 2010. Pet. Brief at 2. On or about August 2, 2010, a dispute arose at the jobsite whereby DeVre complained about the sufficiency of Collins' work. Id. Accordingly, on or about August 3, 2010, Castagna, DeVre and Collins met at the jobsite. Id. At that time it was agreed between Castagna and DeVre that Collins' work would be limited to: (1) fixing a plastic partition; (2) cleaning concrete in the bathroom area; and (3) digging a single hole in the ground. Id. Collins worked on these tasks on August 3 and August 9, 2010. Collins was paid for a full days work on July 28, August 2, August, 3, and August 9, 2010. Id.

Pursuant to the terms of the CBA, TQM was noticed on November 15, 2010 of arbitration of a claim alleging that Petitioner had failed to use Union labor for cleanup work and for the remaining performance of the CBA-covered work at the Elizabeth Job without a Job Steward present on site. Resp. Brief at 3-4. On December 18, 2010, Arbitrator Suskewicz convened a hearing which afforded both "Union and Employer a full and complete opportunity to make opening statements, to present and offer relevant evidence, to examine witnesses and to argue in support of their respective positions." See Suskewicz Opinion, Resp. Brief, Ex. C. At the conclusion of the record, in addition to the facts listed above herein, the arbitrator propounded the following facts:

* Petitioner asserted that there was no work due the Union under the CBA on the job site from August 3 to August 9, 2010, and following August 9 to the project's completion.

* Collins and DeVre disagreed on whether Collins had been discharged on August 3. The arbitrator found Collins' testimony to be "implausible" given his August 9, 2010 return to the job site. Collins was paid for his August 9, 2010 work.

* Petitioner's contention that there was no Union work on the site, and thus no obligation to employ a job steward, from August 3 to August 9, 2010 and following August 9, was disputed by testimony from Union witnesses and DeVre.

* Union witnesses testified that work due the Union under the CBA was ongoing during the above times. Specifically, Union witnesses saw work performed during a period spanning the entire month of August, which included demolition, material preparation, cleanup work, site preparation and ...


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