Empire State Carpenters Welfare v. Conway Construction of Ithaca, Inc. ( 2016 )

SUMMARY ORDER

Defendant-appellant Conway Construction, Inc. (“Conway”) appeals from a March 15, 2012 judgment and a September 21, 2015 judgment of the United States District Court for the Eastern District of New York (Hurley, J.), denying Conway’s cross-motion for summary judgment, granting Plaintiff-appellee Empire State Carpenters’ (“Empire”) cross-motion for summary judgment, and awarding Empire $202,958.75 in damages stemming from Conway’s unpaid contributions to Empire’s employee benefit funds. Conway argues primarily that the District Court erred in (1) concluding that Conway’s conduct between 1998 and 2003 manifested an intent to adopt the 2001 collective bargaining agreement (“CBA”), (2) holding that Conway was not permitted unilaterally to cease performing under that CBA, and (3) failing sufficiently to reduce Empire’s attorneys’ fees in calculating the damages award. We assume the parties’ familiarity with the facts and record of the proceedings, to which we refer only as necessary to explain our decision to vacate and remand.

Conway argues that the District Court erred in holding that Conway’s conduct manifested an intent to be bound by the terms of the 2001 CBA. In reaching this conclusion, the District Court relied on Brown v. C. Volante Corp., 194 F.3d 351 (2d Cir. 1999), which held that an unsigned CBA may satisfy the requirement that payments to an employee trust fund be made pursuant to a “written agreement with the employer,” 29 U.S.C. § 186(c)(5)(B), if the employer’s “conduct manifested an intent to adopt, or agree to, the unsigned CBAs,” Brown, 194 F.3d at 355. We agree with Conway that the District Court erred in granting Empire’s motion for summary judgment on this issue. The District Court mistakenly concluded that Conway “points to no conduct on its behalf pre-April 2003 negating an intent to be bound by the 2001 Agreement, other than the fact that Conway consistently refused to sign the CBA.” To the contrary, during discovery John Conway testified that “[a]s long as the funds were available from, let’s say, the economy ... I told [Empire’s union representatives’ I’d stay as long as I could. And at that time when I could no longer support their people and cost, I’d have to terminate before I lost my company.” A reasonable juror could construe this testimony to mean that Conway never manifested an intent to be bound by the 2001 CBA and, instead, informed the plaintiffs that he sought merely to compensate union employees at a certain rate until it was longer economically feasible to do so. We therefore conclude that a genuine dispute of material fact exists regarding whether Conway’s conduct manifested an intent to be bound to the terms of the 2001 CBA.¹

We have considered all of the parties’ remaining arguments and conclude that they are without merit. For the foregoing reasons, the judgment of the District Court is VACATED and the cause is REMANDED to the District Court for further proceedings consistent with this order.

1 . Because we vacate on the ground that further proceedings are necessary to determine whether Conway was bound by the terms of the 2001 CBA, we need not consider Conway's other arguments, including that it was entitled unilaterally to repudiate its obligations under the CBA despite the National Labor Relations Board’s decision in John Deklewa & Sons, Inc., 282 NLRB 1375 (1987), enforced sub nom Int'l Ass'n of Bridge, Structural & Ornamental Workers, Local 3 v, NLRB, 843 F.2d 770 (3d Cir. 1988).