CABLE SYSTEM INSTALLATIONS CORPORATION v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 351, No. 1:2012cv07407 - Document 100 (D.N.J. 2016)
Court Description: OPINION. Signed by Judge Joseph H. Rodriguez on 6/30/2016. (dmr)
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CABLE SYSTEM INSTALLATIONS CORPORATION v. INTERNATIONAL BROTHERHOOD OF E...KERS, LOCAL UNION NO. 351 Doc. 100 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY CABLE SYSTEM INSTALLATIONS CORP., et al., Plaintiffs, v. INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 351, et al., Defendants. : : : : : : : : : : : : : Hon. J oseph H. Rodriguez Civil Action Nos. 12-740 7; 12-7435; 12-7447 OPINION This m atter com es before the Court on Motion to Confirm Arbitration [88] of Defendant International Brotherhood of Electrical Workers, Local 351 (“Local 351”) and on Cross-Petition to Vacate Arbitration by Cable System s Installations Corp. (“CSI”). Petitioner-Consolidated Wind Turbine and Energy Cables Corp. (“WTEC”) also joins in the Cross-Petition to Vacate, in part. The unusual procedural posture of this case results, in part, from the consolidation of three separate cases that all center on the sam e arbitration award. Although there are several issues present within the consolidated cases, the present m otion is lim ited to a single issue of whether the Arbitration Award at issue m ust be vacated or confirm ed because of potential bias on the part of the J oint Arbitration Com m ittee. The Court has considered the written subm issions of the parties and the argum ents advanced at the hearing on J une 13, 20 16. For the reasons expressed on the record that day and those that follow, the Arbitration Award as to CSI will be confirm ed. 1 Dockets.Justia.com The Court will lift the stay as to the case against WTEC and perm it discovery on the dam ages issues inherent in the determ ination of whether WTEC is an alter-ego of CSI. I. Background1 Petitioner CSI is a California electrical contractor. Respondent Local 351 is a labor union that is party to a collective bargaining agreem ent with the Southern Division of the Southern New J ersey Chapter, Inc., National Electrical Contractors Association (“SNJ NECA”), effective October 1, 20 0 8 until at least Septem ber 30 , 20 11 (“CBA”). (Dick Aff., ¶ 4, Ex. 1.) On J anuary 11, 20 11, CSI signed a Letter of Assent with Local 351, represented by signatory Edward H. Gant (“Gant”), Business Manager of Local 351, which authorized SNJ NECA to be CSI’s collective bargaining representative for all m atters contained in or pertaining to the CBA. (O’Brien Cert., Ex. 1.) The Letter of Assent also states that CSI agreed to be boun d by the CBA. (Id.; Dick Aff., ¶ 5.) There is no dispute that CSI is a signatory to the CBA. On December 20 , 20 11, counsel for Local 351 sent correspondence to CSI and another com pany, WTEC, alleging that CSI and WTEC were in violation of the CBA with respect to solar installation work being perform ed in Vineland, Cum berland County, New J ersey (the “Vineland project”). (Dick Aff., ¶ 7, Ex. 2.) The letter stated, “[s]teps are being undertaken to secure your com pliance with the Agreem ent with the Local Union,” suggested that CSI contact Local 351's Business Manager, and requested that CSI or its counsel contact counsel for Local 351. (Dick Aff., Ex. 2.) 2 1 Portions of the background are taken from the Court’s August 1, 20 12 Mem orandum Opinion and Order. See Cable System s Installations Corp., v. International Brotherhood of Electrical Workers, Local 351, Civil Action No. 12-1912, [Dkt. No 16]. 2 CSI argues that the letter was not a grievance and did not state that Local 351 had filed a grievance or intended to file a grievance against it. (Dick Aff., ¶ 7.) In addition, CSI claim s that no one at 2 CSI claim s that none of its em ployees perform ed any work on the Vineland project. (Dick Aff., ¶ 6.) Local 351, however, has asserted that a Robert J . McConathey certified that he was an agent of CSI when he applied for a perm it on behalf of CSI on October 21, 20 11 to conduct $ 779,0 0 0 worth of electrical work at the Vineland site. (O’Brien Cert., Ex. 5, 6.) In addition, on October 7, 20 11, WTEC filed a construction perm it application for building ($ 9,221,0 0 0 ) and electrical ($ 779,0 0 0 ) work at the Vineland site, with Robert McConathey sign ing off as WTEC’s agent on a subsequent request for plan review. (O’Brien Cert., Ex. 3, 4.) The contractor’s address, phone num ber, license num ber, and Federal Em ployer ID num ber provided were identical for WTEC and CSI. On Novem ber 29, 20 11, a perm it was filed for the sam e job site, changing the contractor to Robert J . McConathey/ AGEE LLC. (O’Brien Cert., Ex. 7.) Thus, on Decem ber 28, 20 11, J oseph Knecht, J r. (“Knecht”), Secretary of the Southern New J ersey Labor Managem ent Com m ittee (“Com m ittee”) and one of the Com m ittee’s m em bers representing em ployers, sent correspondence addressed to “CSI/ WTEC” stating that the Com m ittee scheduled a hearing “for your com pany” on J anuary 3, 20 12 at 10 :0 0 a.m . “regarding alleged violations of Local Union 351's Collective Bargaining Agreem ent over work on a solar installation project in Cum berland County N.J .” (Dick Aff., ¶ 8, Ex. 3.) Counsel for CSI responded to Knecht’s letter on Decem ber 30 , 20 11 requesting a two-week postponem ent of the J anuary 3 hearing on the grounds that counsel had recently been retained by CSI, counsel and CSI were not available on J anuary 3 to CSI “with responsibility for this m atter,” including CSI’s Associate General Counsel, saw the letter until after J anuary 3, 20 12. (Dick Aff., ¶ 7.) 3 attend the hearing, CSI had never received a grievance concerning the subject of the hearing, CSI was not notified of the existence of an alleged grievance prior to its receipt of Knecht’s Decem ber 28 letter, and CSI had no inform ation concerning the nature of the alleged dispute. (Certification of David A. Tango (“Tango Cert.”), ¶ 4, Ex. 1.) Knecht sent counsel for CSI an e-m ail on Decem ber 30 at 10 :51 p.m . denying CSI’s request for an adjournm ent, and stating that the Com m ittee’s hearing would take place as scheduled, as “CSI/ WTEC was given adequate tim e to m ake preparations for Tuesday’s m eeting.” (Tango Cert., ¶ 5; Ex. 2.) On December 31, 20 11, counsel for CSI responded to Knecht’s Decem ber 30 em ail with a letter requesting that the Com m ittee reconsider its denial of CSI’s request for a postponem ent of the J anuary 3, 20 12 hearing. In support of CSI’s request for reconsideration, counsel for CSI explained that CSI was not given adequate notice of the hearing, CSI had never received a copy of the grievance or any other docum entation concerning the grievance, Article 1.6 of the CBA3 was not com plied with as the m eeting required under the first step of the grievance process was never held, CSI only learned that Local 351 had allegedly filed a grievance when it received Knecht’s Decem ber 28 letter, CSI had no knowledge or inform ation about the allegations raised by Local 351, and Local 351 would not be prejudiced by adjourning the hearing. Counsel for CSI 3 Article I, Section 1.6 of the CBA provides: All grievances or questions in dispute shall be adjusted by the duly authorized representative of each of the parties to this Agreem ent. In the event that these two are unable to adjust any m atter within 48 hours, they shall refer the sam e to the Labor Managem ent Com m ittee. (Dick Aff., ¶ 4, Ex. 1 at p. 5.) 4 asserted that, given these circumstances, conducting the hearing on J anuary 3 would dem onstrate the Com m ittee’s lack of im partiality. (Tango Cert., ¶ 6, Ex. 3.) On Decem ber 31, 20 11 Knecht sent counsel for CSI an em ail in response to CSI’s Decem ber 31 letter. Knecht’s em ail stated that CSI was provided with m ore tim e than the 48 hours typically provided for a hearing4 and that Knecht believed Local 351 “m ade several attem pts” to contact CSI without success. (Tango Cert., ¶ 7, Ex. 4.) Knecht sent counsel for CSI another e-m ail on Decem ber 31 stating that he reached out to a representative from Local 351 to request that Local 351 postpone the hearing, but his request was denied. (Tango Cert., ¶ 8, Ex. 5.) Counsel for CSI responded to Knecht’s em ail on Decem ber 31 by requesting specific inform ation concerning Local 351's “attem pts to contact CSI without success,” including any docum ents supporting Knecht’s contention. Counsel for CSI also reiterated the previously highlighted “notice, procedural, and due process deficiencies,” and its unavailability and the unavailability of CSI to attend the hearing on J anuary 3, which were the bases for its previously requested adjournm ent of the hearing. (Tango Cert., ¶ 9, Ex. 6.) On J anuary 2, 20 12, at 6:51 p.m ., counsel for CSI again em ailed Knecht to inform him and the Com m ittee that CSI and its attorneys were not available to attend the 4 The grievance and arbitration procedure is delineated in Article 1 of the CBA. Article I, Section 1.5 of the CBA states: There shall be a Labor-Managem ent Com m ittee of three (3) representing the Union and three (3) representing the Em ployers. It shall m eet regularly at such stated tim es as it m ay decide. However, it shall also m eet within forty-eight (48) hours when notice is given by either party. It shall select its own Chairm an and Secretary. The Local Union shall select the Union representatives and the Chapter shall select the m anagem ent representatives. (Dick Aff., ¶ 4, Ex. 1 at p. 4-5.) 5 J anuary 3 hearing. Counsel for CSI further inform ed Knecht that CSI was not perform ing any work in Cum berland County, New J ersey, and that CSI is a com pletely separate entity from WTEC. Counsel for CSI requested that he be perm itted to call in to the J anuary 3 hearing via telephone to place CSI’s notice, procedural, and due process objections on the record and request that all previously sent correspondence be placed in the record. (Tango Cert., ¶ 10 , Ex. 7.) Later that sam e night, at 9:0 5 p.m ., Knecht sent an e-m ail in response stating that he would speak with Local 351 in the m orning and reply to counsel as soon as possible. (Tango Cert., ¶ 11, Ex. 8.) In a subsequent em ail sent a few m inutes later, Knecht inform ed CSI’s counsel that “typically attorneys are not present at labor m anagem ent hearings. J ust other contractors and business agents.” (Tango Cert., ¶ 11, Ex. 9.) Knecht e-m ailed counsel for CSI on J anuary 3, 20 12 at 9:56 a.m . to notify him that CSI could participate in the 10 a.m . hearing by telephone and consult its attorneys afterwards, but attorneys who “are not in house attorneys of the contractor are not perm itted in labor m anagem ent hearings.” (Tango Cert., ¶ 12, Ex. 10 .) At 10 :0 8 a.m ., counsel for CSI responded to Knecht’s em ail by requesting that the hearing be delayed until 10 :30 a.m . so that a representative from CSI could call in to the hearing by telephone to place CSI’s notice, procedural, and due process objections on the record. (Tango Cert., ¶ 13, Ex. 11.) To that end, CSI’s Associate General Counsel, based in Tam pa, Florida, called in to the hearing at 10 :30 a.m . on J anuary 3, 20 12 to place on the record CSI’s “notice, procedural, and due process objections.” (Dick Aff., ¶ 9, Ex. 3.) 6 During Local 351's presentation of its case, Gant, Business Manager of Local 351, served as Chairm an of the Com m ittee 5, and presented Local 351's grievance to the Com m ittee, first stating that Local 351 sent a copy of its grievance to CSI, then clarifying that the letter he was referring to was the Com m ittee’s Decem ber 28, 20 11 correspondence scheduling the J anuary 3, 20 12 hearing. (Dick Aff., ¶ 10 .) After Gant finished presenting Local 351's grievance, CSI’s Associate General Counsel placed on the record the notice, procedural, and due process objections previously m ade, and also inform ed the Com m ittee that CSI did not have any em ployees working on the Cum berland County job and that, to his knowledge, the job was being perform ed by WTEC. (Dick Aff., ¶ 11.) CSI’s Associate General Counsel also inform ed the Com m ittee that CSI and WTEC each has its own em ployer identification num ber. (6/ 11/ 12 Dick Aff., ¶ 11.) The Com m ittee subsequently inform ed CSI’s Associate General Counsel that it did not need to hear anything further from him , and CSI’s Associate General Counsel hung up the phone. (Dick Aff., ¶ 11.) The Com m ittee decision, dated J anuary 4, 20 12, states: The Labor Managem ent Com m ittee Convened on J anuary 3, 20 12 at 10 :0 0 am in the office of Local Union 351 to review L.U. 351's grievance against CSI/ WTEC stating that CSI/ WTEC has violated L.U. 351's Collective Bargaining Agreem ent. After careful review of the perm itting process, it was concluded that CSI and WTEC are one in the sam e. It was also concluded that CSI is signatory to L.U. 351 which binds them and 5 Article I, Section 1.7 of the CBA provides: All m atters com ing before the Labor-Managem ent Com m ittee shall be decided by a m ajority vote. Four (4) m em bers of the Com m ittee, two (2) from each of the parties hereto, shall be a quorum for the transaction of business, but each party shall have the right to cast the full vote of its m em bership and it shall be counted as though all were present an d voting. In the absence of a deadlock, the Labor Managem ent Com m ittee's decision shall be final and binding. (Dick Aff., ¶ 4, Ex. 1 at p. 5.) 7 WTEC to the Collective Bargaining Agreem ent. Article IV Section 4.2 of the CBA states that the local shall be the sole source of m anpower for projects within its jurisdiction. It was determ ined that CSI/ WTEC perform ed all electrical work at a perm it value of 10 m illion dollars at 3152 South Delsea Drive, Vineland N.J . 0 8360 without notifying L.U. 351 or hiring any of their m anpower. Therefore, it is the decision of this Labor Managem ent Com m ittee that Local Union 351 shall seek back wages and benefits for all electrical work perform ed at, or related to, the project at 3152 South Delsea Drive, Vineland N.J . 0 8360 . (Dick Aff., ¶ 13, Ex. 4.) CSI then filed an action to vacate the Com m ittee’s arbitration award on March 28, 20 12, arguing that the J anuary 4, 20 12 arbitration award issued by the Com m ittee should be vacated because CSI was denied a fair hearing, as (1) CSI was never provided with a copy of the grievance that was the subject of the J anuary 3, 20 12 hearing; CSI first learned of the alleged grievance when it received the Decem ber 28, 20 11 correspondence setting the J anuary 3 hearing; (2) CSI was not afforded an opportunity to “adjust” Local 351's dispute prior to the m atter being addressed by the Com m ittee, seem ingly in violation of Article I, Section 1.6 of the CBA; (3) CSI’s request to adjourn the J anuary 3, 20 12 proceeding was sum m arily denied, depriving CSI of the opportunity to investigate the m atter and adequately prepare for the hearing, which was CSI’s first under the CBA. Further, CSI’s General Counsel has sworn that Robert McConathey was never em ployed by CSI and was not authorized to file perm its on behalf of CSI, “and no electrical work was perform ed on the [Vineland] jobsite by or on behalf of CSI under any perm its allegedly filed by Robert McConathey.” (6/ 11/ 12 Dick. Aff., ¶ 4, 8.) Rather, McConathey was working for another com pany as a subcontractor for WTEC. (Id. at ¶ 5.) On May 24, 20 12, Local 351 filed a cross-m otion to confirm the J anuary 4, 20 12 arbitration award issued by the Com m ittee, arguing that Local 351 and the Com m ittee 8 acted in accordance with the CBA, and CSI is not entitled to m ore procedure or protection than the CBA provides. Local 351 also argued that the Decem ber 20 , 20 11 letter sent by its counsel provided CSI with sufficient notice that there was a “question in dispute” as contem plated under Article I, Section 1.6 of the CBA. Without addressing the alter-ego theory or a single em ployer theory, the Court, vacated the decision set forth in the Labor-Managem ent Com m ittee’s J anuary 4, 20 12 letter on the ground that the J oint Com m ittee denied CSI’s reasonable request for postponem ent of the arbitration. The parties returned to arbitration for a hearing and the J oint Com m ittee issued an award in favor of Local 351 on Novem ber 15, 20 12. The award stated that CSI violated the CBA by failing to utilize union labor to install the solar panels at the Vineland project. See Cert. of Robert F. O’Brien, Ex. 11, Novem ber 15, 20 12 Com m ittee Award. The J oint Com m ittee also found that CSI and WTEC “were functioning as the sam e entity during the tim e of construction.” Id. On December 4, 20 12 both CSI and WTEC separately filed a Com plaint and Petition to Vacate the Novem ber 15, 20 12 Award. Local 351 filed an action on Decem ber 9, 20 12 against CSI and WTEC seeking to recover contributions to the funds it alleged were owed for work done on the Vineland project. The CSI and Local 351 actions were assigned to this Court, while the WTEC action was assigned to the Honorable Robert B. Kugler. The three m atters were consolidated by this Court.6 Following discovery m otion practice, the Court granted CSI’s m otion to stay pending determ ination of the 6 The present captioned case was consolidated with Wind Turbine and Energy Cables Corp. v. International Brotherhood of Electrical Workers, Local 351, Docket No. 12 CV-7435 (RBK) and IBEW Local 351 Welfare Pension, Annuity and J oint Apprenticeship Training Funds and their Board of Trustees v. Cable System s Installations, LLC and Wind Turbine and Energy Cables Corp., Docket No. 12-CV-7447 (J HR) on February 7, 20 13. See Cable System s Installations Corp. v. International Brotherhood of Electrical Workers, Local 351, Docket No. 12-740 7, # 12. 9 IBEW action. [Dkt. No. 60 ]. The WTEC Action was stayed on August 20 , 20 15 and the issue of dam ages was bifurcated from the liability determ ination. [Dkt. No. 85]. As a result, presently before the Court is the issue of CSI’s liability as set forth in CSI’s Petition to Vacate the Arbitration Award and IBEW’s Cross-Petition to confirm the sam e. CSI m oves to vacate the arbitration award on the ground that there is evidence of bias and partiality by the J oint Com m ittee when it rendered the Novem ber 15, 20 12 award. CSI claim s that tem poral proxim ity of the arbitration hearing and issuance of the arbitration award is highly suggestive of bias; the hearing took place on Novem ber 13, 20 12, two days before the award was issued, and CSI claim s the quick turnaround indicates that the argum ents presented at the hearing were not fully considered. Also, Gant was the Chairm an of the J oint Com m ittee and CSI claim s he had a vendetta and obvious bias against CSI and WTEC. In addition, CSI and WTEC argue that if the Court confirm s the award, the upshot will be to foreclose WTEC’s right to litigate the alter-ego issue because the present m atter is captioned as against both CSI and WTEC. II. Standard of Review The issue before the Court is whether the Arbitration Award issued by the J oint Com m ittee is the product of bias and/ or im partiality. J oint com m ittee awards are reviewed under the sam e standards as binding arbitration awards. International Bhd. of Team sters, Chauffeurs, Warehousem en and Helpers of Am erica, Local 249 v. Western Pennsylvania Motor Carriers Ass'n, 574 F.2d 78 3, 786 n.3 (3d Cir. 1978) (citing General Drivers, Warehousem en & Helpers, Local Union No. 89 v. Riss & Co., Inc., 372 U.S. 517 (1963); Bieski v. Eastern Autom obile Forwarding Co., 396 F.2d 32 (3d Cir. 1968); Price v. Team sters, 457 F.2d 60 5 (3d Cir. 1972)). 10 The Federal Arbitration Act (the “FAA” or the “Act”), 9 U.S.C. § 1 et seq., provides for lim ited judicial review of arbitration awards. Pursuant to the FAA, there is a strong presum ption in favor of enforcing arbitration awards. Brentwood Medical Assoc. v. United Mine Workers of Am ., 396 F.3d 237, 241 (3d Cir. 20 0 5). “In a proceeding to confirm or vacate an arbitration award, a court's review is exceedingly narrow.” Eichleay Corp. v. Int'l Ass'n of Bridge, Structural & Ornam ental Iron Workers, 944 F.2d 10 47, 10 55– 56 (3d Cir.1991). A court m ay only vacate an arbitration award where: (1) the award was procured by corruption, fraud, or undue m eans; (2) there was evident partiality or corruption in the arbitrators, or either of them ; (3) the arbitrators were guilty of m isconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and m aterial to the controversy; or of any other m isbehavior by which the rights of any party have been prejudiced; or (4) the arbitrators exceeded their powers, or so im perfectly executed them that a m utual, final, and definite award upon the subject m atter subm itted was not m ade. 9 U.S.C. § 10 ; Hall Street Assoc., L.L.C. v. Mattel, Inc., 552 U.S. 576, 584 (20 0 8); Sutter v. Oxford Health Plans LLC, 675 F.3d 215, 219 (3d Cir. 20 12), as am ended (Apr. 4, 20 12), aff'd, 133 S. Ct. 20 64, 186 L. Ed. 2d 113 (20 13). In reviewing an arbitration award, the Court m ust not substitute its own judgm ent. The Court m ust affirm the award “[a]s long as the arbitrator’s award ‘draws its essence from the collective bargaining agreem ent,’ and is not m erely ‘his own brand of industrial justice,’ the award is legitim ate.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36 (1987) (quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960 )). This is because “arbitration is a m atter of contract,” United Steelworkers of Am . v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960 ), 11 so if an “‘arbitrator is even arguably construing or applying the contract and acting within the scope of his authority,’ the fact that ‘a court is convinced he com m itted serious error does not suffice to overturn his decision.’” Eastern Associated Coal Corp. v. United Mine Workers of Am ., Dist. 17, 531 U.S. 57, 62 (20 0 0 ) (quoting Misco, 484 U.S. at 38); see also Ne. Reg'l Council of Carpenters, UBCJ A v. B & L Moving & Installation, Inc., No. CIV.A. 14-4129 CCC, 20 15 WL 333467, at *1 (D.N.J . J an. 22, 20 15). Under these standards, an award will be confirm ed unless it is “irrational.” Eichleay Corp., 944 F.2d at 10 59 (quoting Roberts & Schaefer Co. v. Local 1846, United Mine Workers, 812 F.2d 883, 885 (3d Cir.1987)). As a result, courts m ust not entertain claim s that an arbitrator has m ade factual or legal errors; rather, court review of an arbitration award m ust consider the “liberal federal policy favoring arbitration” and be conducted with a presum ption favoring enforcem ent of the award. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 20 0 3); Moses H. Cone Mem orial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24, 10 3 S.Ct. 927, 74 L.Ed.2d 765 (1983); see also Southco, Inc. v. Reell Precision Mfg. Corp., 556 F. Supp. 2d 50 5, 50 8 (E.D. Pa. 20 0 8), aff'd, 331 F. App'x 925 (3d Cir. 20 0 9). III. Analysis CSI’s argum ent centers on the conduct and the alleged influence of Gant, who is both the President of Local 351 and the Chairm an of the J oint Com m ittee. In addition, CSI claim s that the contours of the arbitration hearing did not provide CSI with the “procedures and protections” of the CBA. Finally, CSI argues that the J oint Com m ittee’s decision is suggestive of bias because it chose to consider som e Local 351’s evidence, including hearsay, while it disregarded CSI’s evidence. After review of the entire record and upon consideration of the argum ents advanced at the hearing, CSI’s claim s of bias 12 are insufficient to overcom e the strong presum ption in favor of enforcem ent of the award in this case. The J oint Com m ittee’s m anagem ent of the hearing “draws its essence” from Article I, Section 1.7 of the CBA, as the Com m ittee m em bership was equally com prised of m em bers of a union and em ployer m anagem ent. To the extent CSI argues that Secretary Knochtel was hostile and obstructionist, the record indicates that the em ail com m unications relied upon by CSI can be interpreted as having a harsh undertone and could suggest bias. See Dick Decl., Exs. I, J , and K. However, one could also read the com m unications as having no inflection and providing quick instructions or responses. Even to the extent that the em ails and the com m unications can dem onstrate curt, or rude, behavior, the Court cannot conclude on this basis alone that the arbitration was unfair. Eastern Associated Coal Corp., 531 U.S. at 62. In addition, the CBA does not set forth any procedures or policies for the contours of a hearing. CSI’s argum ent that this fact provides a convenient platform for the Local 351 to abuse the hearing is m arginally persuasive. However, the CBA provides for, and the J oint Com m ittee was com prised of, equal m em bers from both union and em ployer ranks. In addition, if the lack of policies and procedures set forth in the CBA appears to underm ine the arbitral process to the sole disadvantage of CSI, CSI could have chosen not to sign the CBA. Misco, Inc., 484 U.S. at 36. Finally, CSI’s claim s that it did not have any m em bers on the arbitration panel, that it was not given the opportunity to object to Local 351’s m em bers’ participation, and that the award was hastily issued and m irrored the J anuary 20 12 award is not unusually suggestive of bias. Because the com position of the panel com ported with Article I, Section 1.7 of the CBA, the Court will not upset the arbitration award. In 13 addition, the fact that the award was issued quickly after the second hearing on rem and, is not unusually suggestive of bias. The award states that the com m ittee was persuaded by the fact that CSI, and not WTEC, pulled the electrical perm its for the project. Dick Decl., Ex. L, Nov. 15, 20 12 Award. On October 7, 20 11, WTEC filed for perm its for the solar panel work on the Vineland project. The addresses listed for WTEC in the initial perm it application inform ation all pointed to CSI: the business address was the CSI’s, the business agent Robert McConathey worked for CSI, and the Federal Em ployer Identification Num ber was issued to CSI. See O’Brien Cert., Exs. 3-6. Although WTEC requested a plan review on October 11, 20 11, it did not change any of the “CSI” inform ation and McConathey certified that he was an agent authorized to bind WTEC. When CSI filed its perm it application on October 21, 20 11, the business address, phone num ber, and Federal Em ployer ID Num ber all m atched the WTEC October 7, 20 11 perm it. Id. This perm it was am ended by CSI on Novem ber 17, 20 11 to change the am ount of the cost; the identifying inform ation rem ained the sam e. Id. Local 351 claim s that it m et with AGEE, LLC to discuss issues with the Vineland job site prior to the first J oint Com m ittee hearing, which was held on Novem ber 29, 20 11. By way of letter dated Decem ber 20 , 20 11, Local 351 inform ed CSI and WTEC that it believed that the com panies were in violation of the CBA for failing to use the proper workforce. A grievance was filed by way of letter dated Decem ber 27, 20 11 against WTEC and CSI stating, inter alia, that “[t]he em ployers have violated num erous provisions of the Collective Bargaining Agreem ent by their conduct and the conduct of their alter-ego com pany.” Id. Ex 9. The hearing was held on J anuary 3, 20 12. 14 On the day of both the Novem ber 29, 20 11 hearing and the J anuary 3, 20 12 hearing, the nam ed contractor for the Vineland solar panel installation project was changed. First, on Novem ber 29, 20 11 when the nam ed contractor was changed from CSI to McConathey as an agent for AGEE, LLC, and then on J anuary 3, 20 12, from McConathey to David Ludlum . Id. at Exs. 7, 8. The evidence suggests that McConathey was the authorized agent for WTEC, CSI, and AGEE. Id. Counsel for CSI tried to refute this evidence by arguing that CSI and WTEC were separate corporate entities, with separate Federal ID num bers. Dick Decl. ¶¶ 20 -23. In addition, counsel argued that WTEC perform ed all of the work on the Vineland project and that CSI was never awarded the contract for the Vineland project. Id. Finally, there was no evidence presented by Local 351 to dem onstrate that CSI ever ordered m aterials for the project, hired workers, or pulled perm its for the project. Id. Only hearsay evidence was offered by Local 351 (specifically by Gant) to challenge CSI’s argum ents. Id. at ¶ 19. To refute the argum ent that the perm it inform ation contained references to CSI, by way of Federal ID num ber and address inform ation, CSI argued that the perm it inform ation was erroneously entered by an unauthorized em ployee of CSI. See Konkel Decl., Ex. M. In addition, CSI claim s that the lack of Com m ittee hearing m inutes, the Com m ittee’s decision to disallow written subm issions, and the fact that CSI was not perm itted to retain outside counsel, all indicate that the Com m ittee was biased and im partial. While there is little doubt that procedural irregularities underscored the Com m ittee’s decision, the Com m ittee did not stray beyond the term s of the CBA and the Court cannot find that bias prejudiced the arbitration. Moreover, the Com m ittee’s 15 decision, in its own words, centered on the initial perm it inform ation. It is not for the Court to decide whether that outcom e would have changed if CSI was perm itted to proceed as it saw fit and was perm itted to present docum entation. The Court cannot substitute its own judgm ent for that of the Com m ittee. The evidence that CSI presented in relation to the perm it centered on a “rogue em ployee” theory and was fully presented. The Com m ittee heard testim ony that CSI and WTEC had separate Federal ID num bers. The Com m ittee found that unpersuasive and there is nothing in the record to suggest that bias/ prejudice influenced this determ ination. For these reasons, CSI cannot dem onstrate that it was prejudiced by the Com m ittee’s decisions. As a result, the Court finds that the arbitration award is not the product of bias or im partiality and, therefore, can be confirm ed as to CSI only, as WTEC is not a signatory to the CBA. See New J ersey Reg'l Council of Carpenters v. Heartland Dev. Co., No. CIV No. 0 9-178, 20 10 WL 170 6961, at *3 (D.N.J . Apr. 27, 20 10 ) (citing Int'l Assoc. of Heat & Frost Insulators & Asbestos Workers Local Union 42 v. Absolute Envtl. Servs., Inc., 814 F.Supp. 392, 40 3 (D.Del. 1993) (If a party is not a signatory to a collective bargaining agreem ent, then an arbitrator lacks the authority to issue an award against that party.). Given that WTEC is not a signatory to the CBA, its right to litigate the alter-ego rem ains intact and is not im pacted by the J oint Com m ittee’s determ ination in the arbitration award. See Eichleay Corp., 944 F.2d at 10 59 n. 12 (discussing Laborers' Int'l Union of North Am . v. Foster Wheeler Corp., 868 F.2d 573 (3d Cir. 1989) (An arbitrator's finding of alter-ego cannot bind the non-signatory to a CBA unless a district court has already determ ined that the two entities are a single em ployer.). That issue, as to WTEC rem ains viable and the Court will lift the stay im posed on the consolidated 16 cases to proceed as to a determ ination of whether WTEC is an alter ego of CSI so as to be liable for the arbitration award. An appropriate Order shall issue. Dated: J une 30 , 20 16 s/ J oseph H. Rodriguez HON. J OSEPH H. RODRIGUEZ, United States District J udge 17
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