IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
May 18, 2010
INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS, LOCAL 5, PLAINTIFF
INTER-STATE TILE & MANTEL CO, INC., DEFENDANT
The opinion of the court was delivered by: Judge Conner
AND NOW, this 18th day of May, 2010, upon consideration of the report of the magistrate judge (Doc. 69), to which objections were filed, (see Doc. 70), recommending that judgment be entered on behalf of plaintiff International Union of Bricklayers and Allied Craftworkers, Local 5 ("Local 5"), and specifying the amount of judgment due under the collective bargaining agreement,and, following an independent review of the record, it appearing that the collective bargaining agreement governing the above-captioned dispute required defendant Inter-State Tile & Mantel Company, Incorporated ("Inter-State") to "make retro-active pay adjustments to employees and make the Union whole for all monies owing for required health and welfare contributions, including pensions, and to otherwise comply with the terms and conditions of the Local 5 Agreement," (Doc. 70, Ex. B at 19), that Inter-State did not meet its obligation to make the required fund contributions to the union, (see Doc. 65, Ex. B; Doc. 68 at 1-2), that an "arbitrator's award is not, as a rule, open to remand," Teamsters Union Local No. 115 v. DeSoto, Inc., 725 F.2d 931, 940 (3d Cir. 1984), but that ambiguities in the method of calculating "make-whole" relief may require remand to the arbitrator, see Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 F.2d 327, 332 (3d Cir. 1991); Hart v. Overseas Nat'l Airways, Inc., 541 F.2d 386, 391 (3d Cir. 1976), and it further appearing that there is no ambiguity with respect to the method of calculating the amounts which Inter-State must contribute under the collective bargaining agreement to each of the various union funds,*fn1 (see Doc. 69 at 10-15), and that Inter- State did not raise its mitigation of damages defense before the arbitrator, that the arbitrator's award is silent on the issue of mitigation, that the arbitral award need not require mitigation of damages, see Pa. Nurses Ass'n, Local 729 v. John F. Kennedy Med. Ctr., 247 F. Supp. 2d 665, 676 (E.D. Pa. 2003), and that Inter-State's mitigation of damages defense-which it has not heretofore raised-is untimely proffered, (see Doc. 69 at 22-25); Pittsburgh Metro Area Postal Workers' Union v. United States Postal Serv., Civ. A. No. 95-1706, 1997 U.S. Dist. LEXIS 12582, at *30 (W.D. Pa. May 12, 1997); see also Teamsters, Chauffeurs, Salesdrivers & Helpers, Local Union No. 330 v. Elgin Eby-Brown, 670 F. Supp. 1393, 1398 (N.D. Ill. 1987) (explaining that the "failure to present the [mitigation] issue and evidence" during the arbitration hearing waives the right to present the arguments at a later proceeding), and recognizing that the magistrate judge has recommended that liquidated damages and interest be assessed pursuant to Section 3 of the collective bargaining agreement, (see Doc. 69 at 33), and that the total amount of liquidated damages and interest is ministerially calculable under this section,*fn2 it is hereby
1. The report and recommendation (Doc. 69) of the magistrate judge is ADOPTED.
2. Local 5's motion (Doc. 60) to enforce judgment and liquidate the judgment is GRANTED as follows:
a. The total amount due the Health and Welfare Fund is $1,011.130.63.
b. The total amount due the International Pension Fund is $557,139.45.
c. The total amount due the International Masonry Institute is $108,556.37.
d. The total amount of liquidated damages due the fund is $83,841.32.
e. The total amount of interest due the fund is $749,336.90.
3. Local 5's motion (Doc. 52) to enforce judgment and to appoint a special court-appointed master/trustee and to hold defendant in contempt pursuant to Federal Rule of Civil Procedure 70 is DENIED.
CHRISTOPHER C. CONNER United States District Judge