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Bensalem Park Maintenance, Ltd v. Metropolitan Regional Council of Carpenters

July 5, 2011

BENSALEM PARK MAINTENANCE, LTD., PLAINTIFF,
v.
METROPOLITAN REGIONAL COUNCIL OF CARPENTERS, DEFENDANT.



The opinion of the court was delivered by: Robert F. Kelly, Sr. J.

MEMORANDUM

Presently before the Court is a Motion to Dismiss submitted by Defendant, Metropolitan Regional Council of Carpenters (the "Union"). In the Motion, the Union seeks to dismiss Plaintiff, Bensalem Park Maintenance, Ltd.'s (the "Company") Complaint. Also before the Court is a Motion for Reconsideration submitted by the Union asking this Court to rescind our Order of May 6, 2011, which stayed enforcement of the arbitration award and a Motion for Default Judgment submitted by the Union. For the following reasons, the Union's Motion to Dismiss will be granted, the Union's Motion for Reconsideration will be denied as moot, and the Company's Motion for Default Judgment will be denied.

I. FACTS

The Company is a Pennsylvania corporation that has two separate and distinct contracts at the Parx Casino and Racetrack located in Bensalem, Pennsylvania. (Compl. ¶ 8.) The first is with Bensalem Racing Association, Inc. and Keystone Turf Club, Inc., which are entities licensed by the Pennsylvania State Horse Racing Commission to conduct thoroughbred horse racing. (Id.)

Pursuant to this contract, the Company provides personnel and management for racetrack operations for facilities, valet, cleaning, maintenance, and certain trade positions. (Id.) The second contract is with Greenwood Gaming and Entertainment, Inc., an entity licensed by the Pennsylvania Gaming Control Board to conduct gaming. (Id.) Pursuant to this contract, the Company provides personnel and management for slot operations, valet, cleaning, maintenance, and certain trade positions. (Id.) The Union was recognized by the Company as the collective bargaining representative for a bargaining unit of all employees in the classifications of journeyman, apprentices, or foremen who performed any work within the jurisdiction of the Union. (Id.)

The relationship between the Company and the Union is defined by two agreements- a 2006 Memorandum of Understanding ("2006 MOU") signed in November 2006 and effective until April 30, 2010 and a 2010 Memorandum of Understanding ("2010 MOU"), signed on April 29, 2010 and effective until April 30, 2011. (Id. at ¶ 17.) Those agreements, in turn, incorporate some provisions from the General Building Contractors Association, Incorporated Agreement ("GBCA") and the Interior Finishers Contractors Association ("IFCA") agreement. (Id.) Article 14 of the GCBA sets forth a comprehensive three-step dispute resolution process "to be followed with respect to all disputes of any nature whatsoever which may arise between the parties hereto or their individual members." (Compl. Ex. A, Art. 14, p. 20.) Article 14 specifically states:

(i) If the dispute affects or arises on a particular job or operation, an attempt shall be made to settle it by discussion between the Foreman and/or the Superintendent on the job or operation, on the one hand, and the Steward on the job or operation and/or the Council's Business Representative for the area in which the job or operation is located, on the other hand.

(ii) If the discussion provided for in paragraph (i) above is not held, or it does not result in a prompt settlement of the dispute, an attempt shall be made to settle the dispute by discussion between the Contractor and/or the Superintendent on the job or operation, on the one hand, and the Council's Executive Secretary-Treasurer and/or the Business Representative aforesaid on the other hand.

(iii) If the discussion provided for in paragraph (ii) above does not result in a prompt settlement of the dispute, or the dispute affects or involves more than one job or operation, an attempt shall be made to settle the dispute by discussion between the Executive Secretary Treasurer of the Council, on the one hand, and the Executive Director of the Association, or his designee, on the other hand. If such discussion does not result in a prompt settlement of this dispute and either the Council or the Contractor involved in the dispute desires further action in the dispute, the Council or the Contractor involved in the dispute as the case may be, shall have the right to decide whether such further action shall be taken, and such further action, also, shall be to refer the matter to arbitration in the manner hereinafter provided.

(Id. at pp. 20-24.) Regarding financial remedies available to the party who prevails at arbitration, the GCBA provides:

. . . should the Arbitrator direct a financial remedy, such remedy shall commence to run from the date the arbitration is filed and shall bear an interest rate from that date to the date of payment equal to six percent per year, compounded monthly from the date the Arbitration is filed to the date that payment is made. (Id. at 23.)

On June 1, 2009, the Union filed a grievance alleging that the Company "assigned work duties to non-bargaining unit members, despite the fact that such work falls squarely within its jurisdiction[.]" (Compl. ¶ 27.) On January 13, 2010, the Union demanded arbitration. (Id. at ¶ 28.) The Union defined the grievance issue as: "The Employer has violated, and is continuing to violate, the collective bargaining agreement by causing the assignment of bargaining unit work to non-bargaining unit personnel." (Compl. Ex. D, p. 4.) The Union's Grievance was referred to the Arbitrator, and hearings were held on June 14, 2010, September 17, 2010, November 24, 2010, and December 2, 2010. (Compl. ¶ 30.) At the hearings, the Union raised a number of alleged violations of the Union's work jurisdiction relating to upholstery work, tent work, door repair work, surveying, furniture moving, signs, slot machines, roulette wheels, and other miscellaneous work, as well as with subcontracting maintenance work. (Id. at ¶ 31.) The time frame for the issues raised spanned from 2006-2010. (Id.) On March 6, 2011, the Arbitrator issued his Award. (Id. at ¶ 33.) After reviewing the "evidence and arguments presented by the parties" the Arbitrator deemed that the issue to be decided was: (1) "Did the Employer violate the Agreement by giving bargaining unit work to non-bargaining unit contractors and employees;" and (2) "If so, what shall the remedy be?" (Compl. Ex. E, p. 5.) The Arbitrator determined that the Company had indeed violated the Agreement on numerous occasions by improperly assigning or subcontracting work within the Union's jurisdiction to non-bargaining unit laborers or subcontractors. (Id. at 18.) In regards to the remedy awarded, the Arbitrator stated verbatim:

By way of remedy, the Employer shall:

Pay Union wages at the then prevailing straight time journeyman rates for the hours of work lost by the bargaining unit due to the Employer's improper assignment or subcontracting of such work as has been found above and make all contributions to fringe benefits required for such hours under the Agreement.

The number of hours lost for which the Employer is liable are 4,240 hours for furniture moving; 2,508 hours for lock changes; 96 hours for set and scenery set up and tear down; 1,450 hours for upholstery work; 5,180 hours for signage; 112 hours for carpeting; 5,200 hours for slow machine work; and 1,642 for door maintenance; and 3,696 hours for the subcontracting of bargaining unit work for unspecified maintenance services within the Union's work jurisdiction provided by subcontractors Bittenbender, TN Ward, Graebel and Hooke.

Be liable for any additional hours of work within the jurisdiction of the bargaining unit, as determined in the above Decision that was performed by labor or subcontractors yet to be determined by the Union. To that end, the Employer shall comply with all reasonable requests by the Union until June 30, 2011 for additional documents that can reasonably be expected to lead to the discovery of such work.

Cease and desist from further assigning or subcontracting of bargaining unit work to non-bargaining unit labor.

Pay reasonable attorney fees and costs, including the cost of duplicating and compiling documents introduced during the arbitration, given the egregious nature of the Employer's violation of the Union's work jurisdiction. (Id. at 18-19) (emphasis added). In addition to the foregoing, the Arbitrator included jurisdiction retention language, which states:

The undersigned will retain jurisdiction over this matter for a period of one year to implement the within remedy and assist in the resolution of disputes over the ...


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