     11-332-cv
     Gesualdi v. Laws Constr. Corp.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                      SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 4th day of June, two thousand twelve.
 5
 6       PRESENT:
 7                    DENNIS JACOBS,
 8                         Chief Judge,
 9                    RALPH K. WINTER,
10                    REENA RAGGI,
11                         Circuit Judges.
12
13       - - - - - - - - - - - - - - - - - - - - - X
14       THOMAS GESUALDI, as a Trustee and as a
15       Fiduciary of Local 282 Welfare, Pension,
16       Annuity, Job Training and Vacation and Sick
17       Leave Trust Fund; LOUIS BISIGNANO, as a
18       Trustee and as a Fiduciary of Local 282
19       Welfare, Pension, Annuity, Job Training and
20       Vacation and Sick Leave Trust Fund; ANTHONY
21       PIROZZI, as a Trustee and as a Fiduciary of
22       Local 282 Welfare, Pension, Annuity, Job
23       Training and Vacation and Sick Leave Trust
24       Fund; DOMINICK MARROCCO, as a Trustee and
25       as a Fiduciary of Local 282 Welfare,
26       Pension, Annuity, Job Training and Vacation
27       and Sick Leave Trust Fund; ANTHONY
28       D'AQUILA, as a Trustee and as a Fiduciary
29       of Local 282 Welfare, Pension, Annuity, Job
30       Training and Vacation and Sick Leave Trust
31       Fund; FRANK FINKEL, as a Trustee and as a

                                                  1
 1   Fiduciary of Local 282 Welfare, Pension,
 2   Annuity, Job Training and Vacation and Sick
 3   Leave Trust Fund; JOSEPH FERRARA, as a
 4   Trustee and as a Fiduciary of Local 282
 5   Welfare, Pension, Annuity, Job Training and
 6   Vacation and Sick Leave Trust Fund, MARC
 7   HERBST, as a Trustee and as a Fiduciary of
 8   Local 282 Welfare, Pension, Annuity, Job
 9   Training and Vacation and Sick Leave Trust
10   Fund; THOMAS PIALI, as a Trustee and as a
11   Fiduciary of Local 282 Welfare, Pension,
12   Annuity, Job Training and Vacation and Sick
13   Leave Trust Fund; DENISE RICHARDSON, as a
14   Trustee and as a Fiduciary of Local 282
15   Welfare, Pension, Annuity, Job Training and
16   Vacation and Sick Leave Trust Fund,
17
18            Plaintiffs-Appellees,
19
20            -v.-                                  11-332-cv
21
22   Laws Construction Corporation,
23
24            Defendant-Appellant.*
25   - - - - - - - - - - - - - - - - - - - - - X
26
27   APPEARING FOR DEFENDANT-APPELLANT:    PAUL T. VINK, Andrew
28                                         Greene & Associates,
29                                         P.C., White Plains, NY.
30
31   APPEARING FOR PLAINTIFFS-APPELLEES:   JAMES ROBERT GRISI
32                                         (Scott P. Trivella, on
33                                         the brief), Trivella &
34                                         Forte LLP, White
35                                         Plains, NY.
36

37        Appeal from a judgment of the United States District
38   Court for the Southern District of New York (Cote, J.).




         *
           The Clerk of Court is directed to amend the official
     caption as shown above.
                                  2
1         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
2    AND DECREED that the judgment of the District Court is
3    AFFIRMED, in part, VACATED, in part, AND REMANDED.

 4        Defendant-Appellant, Laws Construction Corporation
 5   (“Laws”), appeals the judgment granting summary judgment in
 6   favor of Plaintiffs-Appellees, Trustees and Fiduciaries of
 7   the Local 282 Welfare, Pension, Annuity, Job Training and
 8   Vacation and Sick Leave Trust Fund (“Plaintiffs”). We
 9   assume the parties’ familiarity with the underlying facts,
10   the procedural history of the case, and the issues on
11   appeal.

12        We review de novo a grant of summary judgment,
13   considering whether the district court correctly concluded
14   that there was no genuine issue as to any material fact and
15   that the moving party was entitled to judgment as a matter
16   of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d
17   292, 300 (2d Cir. 2003). In a contract dispute, “a motion
18   for summary judgment may be granted . . . only when the
19   contractual language on which the moving party’s case rests
20   is found to be wholly unambiguous and to convey a definite
21   meaning.” Topps Co. v. Cadbury Stani S.A.I.C., 526 F.3d 63,
22   68 (2d Cir. 2008). Accordingly, the threshold question here
23   “is whether the contract is unambiguous with respect to the”
24   provisions of the contract relied upon by the parties.
25   Cont’l Ins. Co. v. Atl. Cas. Ins. Co., 603 F.3d 169, 180 (2d
26   Cir. 2010) (internal quotation marks omitted). “An
27   ambiguity exists where the terms of the contract could
28   suggest more than one meaning when viewed objectively by a
29   reasonably intelligent person who has examined the context
30   of the entire integrated agreement and who is cognizant of
31   the customs, practices, usages and terminology as generally
32   understood in the particular trade or business.” Law
33   Debenture Trust Co. of N.Y. v. Maverick Tube Corp., 595 F.3d
34   458, 466 (2d Cir. 2010). “Whether the contract is ambiguous
35   is a question of law for the court.” Cont’l Ins. Co., 603
36   F.3d at 180 (internal quotation marks omitted).

37   [1] The Collective Bargaining Agreement (“CBA”) does not
38   unambiguously require Laws to contribute to the Local 282
39   Welfare, Pension, Annuity, Job Training and Vacation and
40   Sick Leave Trust Funds (“the Funds”) for the hours worked by
41   non-Local 282 employees of Jo-Di Trucking, Inc. (“Jo-Di”),
42   the company retained by Laws to haul excavated material.



                                  3
 1        Section 6(D) of the CBA provides that “the Employer
 2   and/or Contractor shall hire only from truck or equipment
 3   suppliers whose drivers receive wages, working conditions,
 4   benefits and standards of employment no less favorable than
 5   those contained [in the CBA],” and that “[i]f the union
 6    . . . notifies the Employer and/or Contractor that a truck
 7   or equipment supplier is not complying, the Employer and/or
 8   Contractor may be responsible for such non-compliance.”
 9   Accordingly, Section 6(D) requires that, in the event that
10   Laws hires an outside trucking company (like Jo-Di), that
11   company must provide to its drivers “wages, working
12   conditions, benefits and standards of employment no less
13   favorable than those contained” in the CBA for Laws’s
14   employees. If Laws hires a company that fails to compensate
15   its workers accordingly, Laws “may be held responsible for
16   such non-compliance.”

17        It is not clear from Section 6(D), however, that the
18   only way for Laws to fulfill that commitment is to
19   contribute to the Funds. Counsel for Plaintiffs conceded
20   that point in oral argument. It appears that Laws would be
21   in compliance with Section 6(D) if the company it retained:
22   directly provided its employees conforming wages,
23   conditions, and benefits; contributed to other funds similar
24   to the Funds on its employees’ behalf; paid its employees a
25   lump-sum at least equal to the value of the contribution to
26   the Funds for Laws’s employees; or provided at least equal
27   wages, conditions, and benefits some other way.

28        That conclusion is confirmed by comparing Section 6(D)
29   to Section 6(D)(2), which governs the Employer’s retention
30   of trucks or equipment from an “Owner-Driver.”1 Under the
31   CBA, the Employer (Laws) expressly agrees to “make
32   contributions to [the Funds] for an Owner-Driver in the same
33   amounts and at the same time as for his own Employees.”
34   Section 6(D) includes no such clear command.

35        Plaintiffs instead rely on Section 7, regarding
36   subcontracting, which provides that (for the work of a
37   subcontractor on the site) “[i]n the event that any


         1
           An Owner-Driver is “a person who owns (or in fact
     controls) one truck or piece of equipment, and who, in fact,
     personally operates that piece of equipment, and who does
     not possess the normal attributes of an ‘Employer’ in the
     industry.” Section 6(D)(2)(a).
                                  4
 1   subcontractor . . . fails to pay the wages required by this
 2   Agreement, or to make contributions to [the Funds], as
 3   required by this agreement, . . . the Employer shall be
 4   responsible for such non-compliance” after it has been
 5   notified by the union. Section 7, which only requires
 6   contributions to be made to the Funds “as required by this
 7   Agreement,” does not unambiguously require Laws to make
 8   contributions to the Funds (in the event that Jo-Di failed
 9   to do so and the union notified Laws). The only part of the
10   CBA governing contributions to the Funds is Section 13(A)-
11   (F), which concerns the Employer’s obligation to make
12   contributions for its own employees -- i.e., Laws’s
13   employees, not Jo-Di’s. This is significant because Section
14   7 would obligate Laws to make contributions that Jo-Di was
15   obligated to make but failed to do. Since Section 13(A)-(F)
16   does not unambiguously require Jo-Di to make any
17   contributions, Jo-Di may not be “required” to do so by the
18   CBA. So it is not clear that Laws would be required under
19   Section 7 to make those contributions in Jo-Di’s stead.

20        Because the CBA does not clearly and unambiguously
21   obligate Laws to contribute to the Funds for the hours
22   worked by Jo-Di’s employees, the district court erred in
23   granting summary judgment to Plaintiffs as to the hours work
24   by Jo-Di’s employees.

25   [2] The district court also granted Plaintiffs summary
26   judgment as to their claim that Laws owes contributions to
27   the Funds based on hours worked by Laws’s own employees. On
28   appeal, Laws argues only that the district court overlooked
29   its factual challenge to the accuracy of Plaintiffs’
30   calculation of unpaid contributions, citing discrepancies in
31   the number of hours of work for which Laws was required to
32   contribute to each of the Funds. The argument fails,
33   however, because the highlighted discrepancies result from
34   differences in the contribution formulas specified for each
35   of the Funds in the CBA, not from any error in Plaintiffs’
36   calculations. Accordingly, the award of summary judgment as
37   to Laws’s liability for unpaid contributions based on hours
38   worked by its own employees must be affirmed.

39   [3] The district court awarded attorneys’ fees to
40   Plaintiffs as the prevailing party seeking to enforce 29
41   U.S.C. § 1145. See 29 U.S.C. § 1132(g)(2). Because we
42   vacate the district court’s grant of summary judgment as to
43   the hours worked by Jo-Di’s employees, we vacate the award
44   of attorneys’ fees as to that portion of the matter as well.

                                  5
1        The judgment of the district court is AFFIRMED, in
2   part, and VACATED, in part, and the matter is REMANDED to
3   the district court for further proceedings consistent with
4   this decision.

5                              FOR THE COURT:
6                              Catherine O’Hagan Wolfe, Clerk
7
8




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