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Plasterers Local 8 Pension Fund v. Jersey Panel Corp.

United States District Court, D. New Jersey

May 29, 2018




         This matter is before the Court on cross-motions for partial summary judgment. Oral argument was heard on the motions on May 23, 2018 and the record of that proceeding is incorporated here. For the reasons placed on the record that day, as well as those stated here, Defendant's motion will be granted and Plaintiffs' motion will be denied.


         The Parties

         The issue before the Court is limited to determining which labor agreement governs the parties' relationship. Plaintiffs are Plasterers Local 8 Pension Fund, Plasterers Local 8 Pension Plan, Plasterers Local 8 Welfare Fund, Plasterers' Local 8 Health and Welfare Plan, Plasterers Local 8 Annuity Fund, Plasterers Local 8 Annuity Plan, Plasterers Local 8 Joint Apprenticeship Fund, National Plastering Industry's Joint Apprenticeship Trust Fund d/b/a OPCMIA International Training Fund, Plasterers Local 8 Labor Management Cooperation Committee Fund, Plasterers Local 8 Political Action Committee, Cement Masons Union Local No. 592 of Philadelphia, Pennsylvania, and Bill Ousey, a fiduciary. They allege that the Defendant owes $5, 209, 603.94 in delinquent contributions for the period of January 1, 2013 to December 1, 2015 under ERISA and the operative contract, a May 15, 2003 “International Agreement” between Defendant and the Operative Plasterers and Cement Masons' International Association.

         Defendant Jersey Panel Corporation (“JPC”) is a family-owned business that manufactures and installs prefabricated exterior wall systems as well as field-applied exterior wall systems. Dominick P. Baruffi, II has been the President and CEO of JPC from at least 1999 to the present. JPC employs both union and non-union employees. All non-union employees perform shop work exclusively. Union employees work primarily at customer jobsites performing field-applied coating work, although some union employees perform work in JPC's shop from time to time. JPC's employees who performed field work were represented by Operative Plasterers & Cement Masons International Association No. 8 (“Local 8”) from December 1, 1999 until December 1, 2015. William Taylor was the President/Business Agent of Local 8 in 1999 and continued in that role until his death on July 29, 2014. Taylor was JPC's primary contact at Local 8 during the entire time of their relationship from 1999 until 2014. Thomas Kilkenny was also involved in Local 8's leadership, serving as the Business Manager/Financial Secretary of Local 8 from at least 1999 until 2015. Defendant seeks partial summary judgment in its favor, arguing that a “Specialty Agreement, ” consistent with JPC's 16-year course of performance, governs and precludes any claim for damages related to work performed in its shop by non-union employees.

         The Dispute

         On or about September 1, 2015, Local 8 was consolidated into Plaintiff Cement Masons Union No. 592 of Philadelphia, Pennsylvania (“Local 592”). Through this consolidation, Local 8 no longer existed as an independent entity; Local 592 assumed the duties once held by Local 8. On or about October 22, 2015, Local 592 gave written notice of the termination of a Specialty Agreement (discussed below) effective December 1, 2015. On or about November 30, 2015, JPC's union employees informed JPC that they no longer wished to be represented by Local 8, Local 592, or the International Union. Rather, JPC's union employees wanted the Bricklayers and Allied Craftworkers of New Jersey and its Local 5 (collectively, “BAC”) to represent them for purposes of collective bargaining with JPC.

         The Documents

         1. The Specialty Agreements

         During the course of their relationship, JPC and Local 8 executed an International Union of Operative Plasterers' Local No. 8 Collective Bargaining Agreement, Specialty Agreement, three times, with effective dates of December 1, 1999 through December 1, 2004, July 1, 2004 through December 31, 2009, and July 1, 2010 through December 31, 2015. Each Specialty Agreement provided, in Article 7, that it applied:

to all field plastering work performed by Jersey Panel in field operations and shall not cover any work performed in shops by Jersey Panel or any subsidiary thereof. [Although], at the sole discretion of Jersey Panel Corporation, workers covered by the attached agreement may from time to time be utilized to perform some portion of the work at Jersey Panel Corporation's shop. . . . Geographical areas covered by this Agreement are all counties of New Jersey, also includes Delaware and Pennsylvania.

         Baruffi and Taylor negotiated the terms of each Specialty Agreement and counsel for JPC and Local 8 had opportunities to review each agreement. JPC sent its executed copy of each Specialty Agreement with a letter from Baruffi, as CEO of JPC, to Taylor, as Business Agent of Local 8. The cover letters attached to each Specialty Agreement were incorporated by reference into each agreement and provided, “The attached Agreement shall only be applied to field applied coating work performed at the jobsite by Jersey Panel Corporation and to no other work. The Agreement specifically excludes work performed at Jersey Panel Corporation's shop.” Each letter, including one dated June 28, 2010 for the agreement effective July 1, 2010 through December 31, 2015, also expressly “modifie[d] and supersede[d]any previous agreements between Jersey Panel Corporation and the Operative Plasterers' and Cement Mason's International Union.” Taylor executed each Specialty Agreement on behalf of Operative Plasterers' and Cement Masons' International Association.

         2. The ...

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