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Tqm Construction Co v. New Jersey Building

June 15, 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NOT FOR PUBLICATION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 Plaintiff's motion for reconsideration of this Court's denial of Plaintiff's motion to vacate Bernard Suskewicz's arbitration award dated December 17, 2010. 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 for below, Plaintiff's motion for reconsideration is denied.

I. BACKGROUND

The facts of this case are more fully detailed in this Court's April 4, 2011 Opinion. Only those facts relevant for the present motion are included here.

In or around Summer 2010, TQM Construction Co. ("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 ("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. After Collins had worked at the project for two days, 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.

TQM was noticed on November 15, 2010 of arbitration of a claim alleging that Petitioner had failed to use Union labor for the remaining performance of the CBA-covered work and cleanup work at the Elizabeth Job. Resp. Brief at 3-4. A hearing was held on December 8, 2010 during which TQM was not represented by counsel. After a hearing, on December 17, 2010, Arbitrator Suskewicz issued a decision in favor of the Union.

On February 8, 2011, TQM Construction filed a petition with this Court to vacate the arbitrator's award. On March 7, 2011, Respondents filed a cross-motion to confirm the arbitration award and opposition to Petitioner's motion to vacate the arbitration award to which Petitioner filed its reply brief. On March 16, 2011, Respondent requested permission to file a surreply, which Petitioner opposed. On April 4, 2011, this Court denied Petitioner's motion to vacate the arbitration award and granted Respondent's motion to confirm the arbitration award. In its Order, this Court wrote that, "Petitioner's request to file a surreply is denied as moot." In actuality, this Order should have read "Respondent's request to file a surreply is denied as moot." This oversight was merely a typo and was not intended to imply that Petitioner's reply brief wasnot filed out of right, or that the Court failed to receive Petitioner's reply brief.

II. LEGAL STANDARD

"Reconsideration is an extraordinary remedy" and should be "granted 'very sparingly.'" See L.Civ.R. 7.1(I) cmt.6(d); see also Fellenz v. Lombard Investment Corp., Nos. 04-3993, 04-5768, 04-3992, 04-6105, 2005 WL 3104145, at *1 (D.N.J. Oct. 18, 2005). A motion for reconsideration must "set[] forth concisely the matter or controlling decisions which the party believes the Judge or Magistrate Judge has overlooked." L.Civ.R. 7.1(I). When the assertion is that the Court overlooked something, the Court must have overlooked "some dispositive factual or legal matter that was presented to it." McGovern v. City of Jersey, No. 98-5186, 2008 WL 58820, at *2 (D.N.J. Jan. 2, 2008). The Court will reconsider a prior order only where a different outcome is justified by: (1) intervening change in law; (2) availability of new ...


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