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VORK OUN Kk OU Dv INDEX NO. 650329/2017
NYSCEF BOC. NO. 1 RECEIVED NYSCEF 01/19/2017
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
si IAS EE i i Ral oncinanaaatK
HECTOR FIGUEROA, as Trustee and the Trustees of the
Building Service 32 BJ Health Fund, Building Service 32 BJ
Pension Fund, Thomas Shortman Training & Scholarship Fund,
Building Service 32 BJ Legal Fund and the Building Service 32 BJ : VERIFIED PETITION
Supplemental Retirement & Saving Fund TO CONFIRM
ARBITRATION AWARD
Petitioners,
- against —
Index No. /2017
TEMCO SERVICE INDUSTRIES, INC.
Respondent(s)
TO THE SUPREME COURT OF THE STATE OF NEW YORK
Petitioners, by their attorneys, RAAB, STURM & GANCHROW, LLP,
complaining of Respondent(s), respectfully allege:
1 Petitioner Hector Figueroa, is the Trustee of the Building Service 32BJ Health
Fund, the Building Service 32 BJ Pension Fund, the Thomas Shortman Training & Scholarship
Fund, the Building Service 32 BJ Legal Fund and the Building Service 32 BJ Supplemental
Retirement & Saving Fund. The benefit Funds ("Funds"), are trust funds organized pursuant to
the Taft-Hartley Act of 1947. The Funds are located at 25 West 18" Street, New York, New York
10011.
2 Upon information and belief, the Respondent herein, Temco Service Industries,
Inc. (“Temco”) is and was a cleaning contractor for various buildings located in and around the
New York metro area, for the period covered in the instant dispute.
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3. Respondent Temco maintains an office located at 417 Fifth Avenue, 9th floor, New
York, New York 10016. Upon information and belief, Temco was and still is engaged in the
regular conduct of business at said premises within the State of New York.
4. For all relevant time periods herein the Employer was party to a number of
collective bargaining agreements with Union Local 32BJ, Service Employees International
Union ("Union") covering the service employees employed at the various Premises cleaned by
the Employer and covering inter alia; the wages, hours, conditions and benefits of said
employees. All the union contracts which Temco was bound required Temco to make regular
monthly and in some cases weekly, contributions to the various 32 BJ Funds.
5. One of the collective bargaining agreements by which the Union and Employer
were bound was the “2012 Contractors Agreement between Service Employees International
Union, Local 32 BJ and the Realty Advisory Board on Labor Relations, Inc. (“RAB”) Agreement
(“Agreement”).
6. Article X of the Agreement required the Employer to make certain employee
benefit contributions on behalf of the covered employees at the buildings. Article X was entitled,
“Health, Pension, Training, Legal and Supplemental Retirement & Savings Fund”. See Article X
paragraphs “A” through “F”. Article X is located on pages twenty five through thirty eight of the
Agreement. See the copy of Article X is attached hereto as Exhibit “A”.
7.
Article VI of the 2012 Agreement is entitled “Arbitration” and contained a broad
arbitration provision. The Arbitration clause covered the arbitration of all disputes and
differences arising between the parties with regard to the Agreement. Article VI is located at
pages fifteen through twenty of the Agreement. Paragraph five of the Article VI stated that; “In
any proceeding to confirm an award, service may be made by registered or certified mail within or
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without New York State, as the case may be. (A copy of Article VI is annexed hereto as Exhibit
“B”),
8. Upon information and belief, the other union contracts signed by Temco all contain
substantially the same language with regards to the payments required to be made by the
employer Temco to the Funds for benefit contributions; and with regards to Arbitration clause as
set forth in Article X and Article VI of the 2012 Agreement. See the attached Exhibits “A” and
“B”,
9, Certain disputes and grievances did arise between the Funds and the Employer
concerning the Employer's failure to make timely contributions to the Building Service 32BJ
Health Fund, and or the Building Service 32 BJ Pension Fund and or to the Building Service 32BJ
Legal Fund and/or to the Thomas Shortman Training and Scholarship Fund and/or to the Building
Service 32BJ Supplemental Retirement & Saving Fund, as required pursuant to the terms of the
Agreement.
10. In accordance with the terms of the Agreement, an arbitration hearing was
demanded by the Funds. There were two arbitration hearing dates scheduled and held before the
Arbitrator at the Office of the Contract Arbitrator on September 23, 2016 and November 2, 2016.
Chuck McGinley, a representative for Temco appeared on behalf of the Employer on the
arbitration dates. Michael Geffner, Esq. the attorney for the Funds, was present on behalf of the
Petitioner Funds, as was the Funds’ representative Mr. David Murphy. The last arbitration hearing
date was on November 2, 2016.
il. On November 30, 2016 the Arbitrator issued the Arbitration Award for this case.
{A copy of the Award rendered by Arbitrator Noel B. Berman dated November 30, 2016 is
annexed hereto as Exhibit "C").
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12. As appears from the Award, the Arbitrator directed the following;
“Based on the evidence submitted, I find that Temco Service Industries Inc. is delinquent in its
benefit contributions to the Building Service 32 BJ Funds, for the specific reporting period of June
1, 2013 to date, in the following amounts.:
Principal contributions $438,450.83
(reflects a credit of $16,785.23)
Interest at 9% on late and unpaid contributions. $453,965.19
Liquidated damages at 20% of contribution: -$ 87,690.16
Total due on the Award.. -- $ 980,106.18
The Arbitration Award further stated that:
“The total awarded amount is $980,106.18. Temco is directed to make payment of the above-
mentioned principal contributions and interest by electronic means, through the parties ESS
system of invoice reporting and payments. The liquidated damages portion of the award shall be
paid by conventional paper payment. Payments shall be made within (14) days of the date hereof.”
See the copy of the Award attached hereto as Exhibit “C”.
13. As appears from the Award, Temco was directed to pay the 32 BJ Funds principal
contributions of $438,450.83, interest of $453,965.19 and liquidated damages of $87,690.16, for
a total due to the 32 BJ Funds of $980,106.18. As of today’s date these amounts are still due to the
Funds.
14. Upon information and belief, an original of the Arbitration Award was mailed to
the Employer by certified mail by the Office of the Contract Arbitrator.
15. To date, despite repeated demands for payment, the Employer has failed and
refused to comply with any part of the Arbitrator's Award and therefore the entire Award remains
completely unpaid.
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WHEREFORE, Petitioners demand that a judgment confirming the arbitration
award of Arbitrator Noel Berman dated November 30, 2016 be rendered against the Temco
Service Industries, Inc. the Respondent, herein in the amount of $980,106.18, plus interest from
the date the arbitration award was issued, together with the costs and disbursements of this
proceeding and such further relief as this Court may deem just and appropriate.
Dated: New York, New York
January 6, 2016
By CMa ie
aura Breen
RAAB, STURM, & GANCHROW, LLP
Attorneys for Petitioners
2125 Center Avenue, Suite 100
Fort Lee, New Jersey 07024
Tel: 201-292-0150
Fax: 201-292-0152
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VORK OUN Kk OU Dv INDEX NO. 650329/2017 NYSCEF BOC. NO. 1 RECEIVED NYSCEF 01/19/2017 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK si IAS EE i i Ral oncinanaaatK HECTOR FIGUEROA, as Trustee and the Trustees of the Building Service 32 BJ Health Fund, Building Service 32 BJ Pension Fund, Thomas Shortman Training & Scholarship Fund, Building Service 32 BJ Legal Fund and the Building Service 32 BJ : VERIFIED PETITION Supplemental Retirement & Saving Fund TO CONFIRM ARBITRATION AWARD Petitioners, - against — Index No. /2017 TEMCO SERVICE INDUSTRIES, INC. Respondent(s) TO THE SUPREME COURT OF THE STATE OF NEW YORK Petitioners, by their attorneys, RAAB, STURM & GANCHROW, LLP, complaining of Respondent(s), respectfully allege: 1 Petitioner Hector Figueroa, is the Trustee of the Building Service 32BJ Health Fund, the Building Service 32 BJ Pension Fund, the Thomas Shortman Training & Scholarship Fund, the Building Service 32 BJ Legal Fund and the Building Service 32 BJ Supplemental Retirement & Saving Fund. The benefit Funds ("Funds"), are trust funds organized pursuant to the Taft-Hartley Act of 1947. The Funds are located at 25 West 18" Street, New York, New York 10011. 2 Upon information and belief, the Respondent herein, Temco Service Industries, Inc. (“Temco”) is and was a cleaning contractor for various buildings located in and around the New York metro area, for the period covered in the instant dispute. lof5 3. Respondent Temco maintains an office located at 417 Fifth Avenue, 9th floor, New York, New York 10016. Upon information and belief, Temco was and still is engaged in the regular conduct of business at said premises within the State of New York. 4. For all relevant time periods herein the Employer was party to a number of collective bargaining agreements with Union Local 32BJ, Service Employees International Union ("Union") covering the service employees employed at the various Premises cleaned by the Employer and covering inter alia; the wages, hours, conditions and benefits of said employees. All the union contracts which Temco was bound required Temco to make regular monthly and in some cases weekly, contributions to the various 32 BJ Funds. 5. One of the collective bargaining agreements by which the Union and Employer were bound was the “2012 Contractors Agreement between Service Employees International Union, Local 32 BJ and the Realty Advisory Board on Labor Relations, Inc. (“RAB”) Agreement (“Agreement”). 6. Article X of the Agreement required the Employer to make certain employee benefit contributions on behalf of the covered employees at the buildings. Article X was entitled, “Health, Pension, Training, Legal and Supplemental Retirement & Savings Fund”. See Article X paragraphs “A” through “F”. Article X is located on pages twenty five through thirty eight of the Agreement. See the copy of Article X is attached hereto as Exhibit “A”. 7. Article VI of the 2012 Agreement is entitled “Arbitration” and contained a broad arbitration provision. The Arbitration clause covered the arbitration of all disputes and differences arising between the parties with regard to the Agreement. Article VI is located at pages fifteen through twenty of the Agreement. Paragraph five of the Article VI stated that; “In any proceeding to confirm an award, service may be made by registered or certified mail within or 2 0f 5 without New York State, as the case may be. (A copy of Article VI is annexed hereto as Exhibit “B”), 8. Upon information and belief, the other union contracts signed by Temco all contain substantially the same language with regards to the payments required to be made by the employer Temco to the Funds for benefit contributions; and with regards to Arbitration clause as set forth in Article X and Article VI of the 2012 Agreement. See the attached Exhibits “A” and “B”, 9, Certain disputes and grievances did arise between the Funds and the Employer concerning the Employer's failure to make timely contributions to the Building Service 32BJ Health Fund, and or the Building Service 32 BJ Pension Fund and or to the Building Service 32BJ Legal Fund and/or to the Thomas Shortman Training and Scholarship Fund and/or to the Building Service 32BJ Supplemental Retirement & Saving Fund, as required pursuant to the terms of the Agreement. 10. In accordance with the terms of the Agreement, an arbitration hearing was demanded by the Funds. There were two arbitration hearing dates scheduled and held before the Arbitrator at the Office of the Contract Arbitrator on September 23, 2016 and November 2, 2016. Chuck McGinley, a representative for Temco appeared on behalf of the Employer on the arbitration dates. Michael Geffner, Esq. the attorney for the Funds, was present on behalf of the Petitioner Funds, as was the Funds’ representative Mr. David Murphy. The last arbitration hearing date was on November 2, 2016. il. On November 30, 2016 the Arbitrator issued the Arbitration Award for this case. {A copy of the Award rendered by Arbitrator Noel B. Berman dated November 30, 2016 is annexed hereto as Exhibit "C"). 3 0f 5 12. As appears from the Award, the Arbitrator directed the following; “Based on the evidence submitted, I find that Temco Service Industries Inc. is delinquent in its benefit contributions to the Building Service 32 BJ Funds, for the specific reporting period of June 1, 2013 to date, in the following amounts.: Principal contributions $438,450.83 (reflects a credit of $16,785.23) Interest at 9% on late and unpaid contributions. $453,965.19 Liquidated damages at 20% of contribution: -$ 87,690.16 Total due on the Award.. -- $ 980,106.18 The Arbitration Award further stated that: “The total awarded amount is $980,106.18. Temco is directed to make payment of the above- mentioned principal contributions and interest by electronic means, through the parties ESS system of invoice reporting and payments. The liquidated damages portion of the award shall be paid by conventional paper payment. Payments shall be made within (14) days of the date hereof.” See the copy of the Award attached hereto as Exhibit “C”. 13. As appears from the Award, Temco was directed to pay the 32 BJ Funds principal contributions of $438,450.83, interest of $453,965.19 and liquidated damages of $87,690.16, for a total due to the 32 BJ Funds of $980,106.18. As of today’s date these amounts are still due to the Funds. 14. Upon information and belief, an original of the Arbitration Award was mailed to the Employer by certified mail by the Office of the Contract Arbitrator. 15. To date, despite repeated demands for payment, the Employer has failed and refused to comply with any part of the Arbitrator's Award and therefore the entire Award remains completely unpaid. 4o0f 5 WHEREFORE, Petitioners demand that a judgment confirming the arbitration award of Arbitrator Noel Berman dated November 30, 2016 be rendered against the Temco Service Industries, Inc. the Respondent, herein in the amount of $980,106.18, plus interest from the date the arbitration award was issued, together with the costs and disbursements of this proceeding and such further relief as this Court may deem just and appropriate. Dated: New York, New York January 6, 2016 By CMa ie aura Breen RAAB, STURM, & GANCHROW, LLP Attorneys for Petitioners 2125 Center Avenue, Suite 100 Fort Lee, New Jersey 07024 Tel: 201-292-0150 Fax: 201-292-0152 5 of 5