Significant Decisions Widget

Representing Unions Before The National Labor Relations Board

Fri, 03 Jul 2015 19:35:44 GMT

Friedman & Anspach has represented its union clients in many important cases before the NLRB, including where federal courts have issued 10(j) injunctions. We have successfully pursued unfair labor practice charges against employers who have prematurely declared impasse or failed to bargain in good faith in contract negotiations, as well as employers who have illegally fired or threatened employees for union activities. In such cases we have gotten workers reinstated or restored contract benefits, and have gained large back pay and benefit fund awards. We have also defended our clients against duty of fair representation charges. In the organizational context, we have handled a wide variety of election matters, and have defeated employer attempts to decertify or withdraw recognition from certified bargaining agents.

Duane Reade, Inc.: the Board affirmed the Administrative Law Judge's decision that the employer had unilaterally implemented its final offer in the absence of a valid impasse. Duane Reade, Inc., 342 NLRB 1016 (2004).

Hope Community, Inc.: the NLRB ordered an election after a hearing in which it ruled against the employer's contention that the union's petitioned-for-unit was comprised of statutory supervisors. Hope Community, Inc., Case No. 2-RC-23016 (2005).

St. Nicholas Home, Inc.: the NLRB overruled various objections filed by the employer concerning conduct affecting the results of a representation election, including claims that the union had promised to waive initiation fees, that voters were threatened or promised benefits, and that misleading fliers were disseminated. St. Nicholas Home, Inc., Case No. 29-RC-11807 (2009).

Great Atlantic & Pacific Tea Co., d/b/a Waldbaum's: the Administrative Law Judge found that the employer had illegally denied relevant information to the union during collective bargaining and had unlawfully interfered with consumer handbilling outside its stores. Great Atlantic & Pacific Tea Co., d/b/a Waldbaum's, Case Nos. 29-CA-29008, et al., 2009 NLRB LEXIS 166 (May 27, 2009).

One Stop Kosher Supermarket, Inc.: the Board affirmed the Administrative Law Judge's decision ordering the employer to recognize and bargain with the union. Prior to the Board's final determination, the federal court had issued a 10(j) injunction against the employer in Blyer v. One Stop Kosher Supermarket, Inc., 720 F. Supp. 2d 221 (2010). One Stop Kosher Supermarket, Inc., Case No. 29-CA-29865, 355 NLRB 1237 (2010).

Paulsen v. Calhoun Foods, LLC, d/b/a Key Food: the federal court issued a 10(j) injunction requiring the employer to recognize and bargain with the union and to refrain from interrogating or otherwise interfering with employees' Section 7 rights, pending the NLRB's final determination of the case in Calhoun Foods, LLC, d/b/a Key Food, Case Nos. 29-CA-30878 and 29-CA-30861 (May 8, 2012). Paulsen v. Calhoun Foods, LLC, d/b/a Key Food No. 12 Civ. 931 (CBA), 2012 U.S. Dist. LEXIS 58045 (Apr. 24, 2012).

Allied Aviation Service Company of New Jersey: the Regional Director ordered an election after accepting the union's position that employees with supervisory titles were not, in fact, statutory supervisors. In particular, the Regional Director found that these employees lacked disciplinary authority. Allied Aviation Service Company of New Jersey, Case No. 22-RC-077044 (May 7, 2012).

Representing Labor Unions in the Arbitration Forum

Fri, 03 Jul 2015 19:39:36 GMT

Friedman & Anspach has represented unions in a wide variety of arbitration cases, including gaining the reinstatement of terminated or laid-off employees with large back pay and benefit fund awards, redressing immigration discrimination, protecting bargaining unit work and enforcing seniority provisions.

Local 553, I.B.T. v. Fred Schildwachter & Sons, Inc.: the arbitrator ordered the employer audit its records to determine the nature and extent of its subcontracting, so as to identify the employees entitled to back-pay for regular and/or overtime work. Additionally, the arbitrator enjoined the employer from hiring subcontractors to perform bargaining unit work and ordered managers to cease and desist from performing bargaining unit work. This happened in spite of the employer’s argument that the remedies provided for under the contract were exclusive, and no other remedies may be awarded. AAA 133000025313 (2013).

Local 338, RWDSU v. Waldbaum's: the arbitrator enjoined managers from performing bargaining unit work. We successfully convinced the arbitrator to reject the employer's appeal to past practice and the ambiguity of the contract. MS 80134 (1998).

Local 817, I.B.T. v. Lincoln Scenic: the arbitrator reinstated an employee who had been terminated for insubordination. The arbitrator accepted our position that insubordination did not fall under the summary discharge provision. AAA 133000110199 (2000).

Local 814, I.B.T. v. Beth Israel Medical Center: the arbitrator reinstated several employees laid off in violation of seniority provisions. AAA 133000153100 (2001).

Local 338, RWDSU v. Food Emporium: the arbitrator reinstated an employee who sold alcohol to a minor. In spite of the severity of the offense, the arbitrator pointed to the employee's long tenure and credible testimony. AAA 133000224503 (2003).

Local 338, RWDSU v. Trade Fair Supermarkets: the arbitrator reinstated with backpay an employee who had been terminated over a "no match" letter. The arbitrator found that the employer had terminated the employee for union activity, and that the demand for immigration documents had been pretextual. MS-25272 (2006).

Local 338, RWDSU v. PSK Supermarkets: the arbitrator found that the employer violated the contract by transferring employees to non-bargaining unit stores. The arbitrator rejected the employer's invocation of the contract's management rights clause, and found the transfers to be an inherent contract violation. FMCS 05-51919 (2006).

Local 338, RWDSU v. Waldbaum's: the arbitrator reinstated with full backpay an employee who allegedly sold cigarettes to a minor based on the Union's argument that the inspector's report was hearsay. Panel arbitration (2009).

Local 338, RWDSU v. Stop & Shop: the arbitrator reinstated with full seniority and partial backpay an employee who allegedly violated the company's anti-harassment policy based on the Union's argument that the offense did not fall into the summary discharge category. AAA 1330000165 (2011).

Representing Labor Unions In Federal and State Courts

Sun, 16 Aug 2015 23:32:27 GMT

In our representation of unions, we have successfully defended our clients' rights by defeating attempts to enjoin picketing, allegations of violations of the Labor Management Relations Act (LMRA) and the Labor Management Reporting and Disclosure Act (LMRDA), and dismissing claims of discrimination. Further, we have convinced federal courts to confirm important arbitration awards in areas such as reinstatement of wrongly discharged or laid off members, enforcing the provisions of collective bargaining agreements, and the very limited ability of courts to overturn arbitration awards.

Brady v. Local 817, I.B.T.: The Court of Appeals for the Second Circuit affirmed the District Court’s decision dismissing the plaintiff’s suit against the union for lack of subject matter jurisdiction. Both courts agreed the LMRDA only controls a relationship between a union and its members, and that the plaintiff was neither a union member nor a “member in substance.” Critical to this outcome was the Second Circuit’s ruling that a union may retain the discretion to accept or reject any application for membership. Thus, since plaintiff’s application was denied, he did not have any rights under the LMRDA since he was neither a formal union member nor a "member in substance." Brady v. Int'l Bhd. of Teamsters, Theatrical Drivers & Helpers Local 817, 13-2038-cv, 2014 U.S.A).

Local 338 RWDSU v. Farmland Dairies: the Second Circuit affirmed the District Court's confirmation of an arbitrator's award, which required the employer to employ more drivers in accordance with the terms of the collective bargaining agreement. Both courts agreed that the employer had no valid impossibility defense to its failure to comply with the collective bargaining agreement, particularly where the employer had opportunity to argue impossibility of performing its contract at arbitration but failed to do so. Local 338 RWDSU v. Farmland Dairies, 89 Fed. Appx. 748, 2003 WL 22879308 (2d Cir. 2003).

Duane Reade, Inc. v. Local 338, RWDSU: the Appellate Division and then the New York Court of Appeals affirmed the New York Supreme Court's dismissal of an employer's lawsuit against a union and its officers during an organizing drive, which alleged trespass, tortious interference with prospective business relations, fraud, and defamation. Relying on the long-established state-law precedent, Martin v. Curran, 303 N.Y. 276 (1951), which requires that a suit against an unincorporated association must show that the actions of the association were approved or ratified by every member, and on preemption under the NLRA, the courts denied the employer's claim for monetary damages. Duane Reade v. Local 338, RWDSU, 3 Misc. 3d 405 (N.Y. Sup. Ct. 2003), aff'd 17 A.D. 277 (N.Y. App. Div. 1st Dept 2005), appeal dismissed, 5 N.Y.3d 797 (2005).

Duane Reade, Inc. v. Local 338, RWDSU: the New York Supreme Court dismissed an employer's defamation claim against a union and its officers, which arose out of press releases, flyers, and website postings during a union organizing campaign, based on the New York state requirements for suing an unincorporated association, as well as preemption under the NLRA. Duane Reade, Inc. v. Local 338, RWDSU, 3 Misc. 3d 790 (N.Y. Sup. Ct. 2004).

Isaac v. Allied Trades Council: the District Court refused to enjoin an affiliation between two unions and also dismissed all claims alleging breach of contract under LMRA Section 301 and violations of individual rights under LMRDA Section 101. Isaac v. Allied Trades Council, No. 03 Civ.1896 (DMC) (D.N.J. Nov. 16, 2004).

Glozman v. Local 338, RWDSU: the District Court granted the Union's motion for summary judgment, holding that the union did not violate its duty of fair representation, and that the plaintiff failed to exhaust his administrative remedies with regard to his disability claim. Glozman v. Local 338, RWDSU, 204 F. Supp.2d 615 (S.D.N.Y. 2002).

Local 282, I.B.T. v. JJP Realty Holding Corp.: the Second Circuit upheld the District Court's confirmation of an arbitration award protecting seniority rights. In reaching this decision, both courts found no merit to the employer's claims that it was coerced into signing the collective bargaining agreement with the union. Local 282, I.B.T. v. JJP Realty Holding Corp., 111 F.3d 123 (2d Cir. 1997).

First Nat'l Supermarket v. Local 338, RWDSU: the Second Circuit upheld the reinstatement of an employee who was discharged for coming to work under the influence of prescription drugs and alcohol. The Court noted that, even though the behavior violated the employer's "work rules" for acceptable conduct, the arbitrator found that it did not constitute just cause for dismissal under the terms of the CBA. First Nat'l Supermarket v. Local 338, RWDSU, 118 F.3d 892 (2d Cir. 1997).

Association v. Local 282: the Court dismissed a lawsuit by an association of employers that sought an injunction against city-wide picketing by striking concrete truck drivers. Association v. Local 282, Index No. 18049/93 (N.Y. Sup. Ct. 1993).

Enforcing Benefit Fund Contribution Obligations on Behalf of Multiemployer Plans

Sun, 16 Aug 2015 23:33:28 GMT

Friedman & Anspach leads the field in successfully pursuing employers for unpaid benefit fund contributions. We have a long history of establishing precedents enabling benefit fund trustees to collect contributions from employers who seek to avoid their benefit fund contribution obligations by establishing alter ego companies or other related entities, and have also succeeded in holding the principals of these companies individually liable for benefit fund contributions. In addition, we have effectively struck down counterclaims and defenses raised by employers in ERISA collection matters.

Demopoulos v. United Metro Energy Corp.: A Second Circuit panel unanimously affirmed the District Court's summary judgment decision in favor of the Local 553, I.B.T. Funds, finding that the Employer adopted by its conduct several Master Contracts for all drivers performing covered work. Expanding on a Second Circuit decision this firm previously argued, Brown v. C. Volante Corp., 194 F.3d 351 (2d Cir. 1999), the Court found that an Employer adopted the Master Contracts when it never signed and attempted to limit the number of drivers covered by the CBAs. The Court also held that because the Employer adopted the Master Contracts, it was required to submit to an audit. Demopoulos v. United Metro Energy Corp., No. 24-1684-cv, 2025 BL 93815 (2d Cir. Mar. 21, 2025). In the Eastern District of New York decision below, the District Court also found that the Employer had used alter egos to avoid compliance with the requested audit. Demopoulos v. United Metro Energy Corp., No. 19-cv-5289 (FB) (RML), 2024 BL 177384 (E.D.N.Y. May 23, 2024).

Benson v. Brower's Moving & Storage, Inc.: In the leading case cited frequently to this day by ERISA plans to counter employer defenses to benefit fund collection cases, we successfully convinced the Second Circuit to adopt an interpretation of Section 515 of ERISA that severely limited the defenses available to an employer in actions for delinquent benefit fund contributions. Benson v. Brower's Moving & Storage, Inc., 907 F.2d 310 (2d Cir. 1990).

Brown v. C. Volante Corp.: In this case, we established the precedent that an employer can "adopt" the provisions of a collective bargaining agreement that it has not signed if its conduct, including complying with the terms of the unsigned collective bargaining agreement, shows an intention to be bound by the agreement. This precedent is used by benefit funds to this day to collect delinquent contributions. In this case, the Second Circuit found that the employer in this case was liable for benefit fund contributions, interest, and statutory ERISA damages based upon an unsigned contract because its conduct showed adoption of the contract. Brown v. C. Volante Corp., 194 F.3d 351 (2d Cir. 1999).

La Barbera v. A. Morrison Trucking: The Second Circuit awarded multiemployer pension, health, welfare, job training and annuity funds contributions, interest, and statutory ERISA damages, and accepted the funds' method of calculating the amount due and the interest rate on delinquent contributions. The court also rejected the employer's claims that it had a separate settlement with the funds as a result of its interactions with union officers, including the settlement of a labor dispute. La Barbera v. A. Morrison Trucking, 197 Fed. Appx. 18, 2006 WL 2091227 (2d Cir. July 20, 2006).

Gesualdi v. Juda Constr. Ltd.: A federal court awarded the trustees of a multiemployer benefit fund $12 million in unpaid contributions, interest, and statutory ERISA damages. The court found that multiple corporate entities shared common operations and employees and were alter egos of each other. As a result, the court ruled that the alter ego companies were legally bound to the collective bargaining agreement signed by the signatory, even if they had not signed the agreement, and were responsible for the benefit contributions due under the collective bargaining agreement. The court rejected the defendants’ arguments pertaining to the statute of limitations, admissibility of the audit reports, subject matter jurisdiction, accord and satisfaction, whether defendants were bound to the CBAs, and factual challenges to liability and the amount of damages. Gesualdi v. Juda Constr. Ltd, No. 10 Civ. 1799 (RMB), 2011 WL 5075438 (S.D.N.Y. Oct. 25, 2011). To read more about this case, click here.

Keane v. Zitomer Pharmacy, Inc.: The court rejected an employer's argument that he had made an oral side agreement with the signatory union that only certain employees in the store would receive benefits, the court found that the language of the collective bargaining agreement unambiguously required contributions for all store employees and awarded trustees of a multiemployer pension fund contributions, interest and statutory ERISA damages. Keane v. Zitomer Pharmacy, Inc., No. 06 Civ. 5981 (RJS), 2010 WL 624285 (S.D.N.Y. Feb. 23, 2010).

Durso v. 130-10 Food Corp. d/b/a Trade Fair Supermarkets: The court found an employer liable to multiemployer pension and health and welfare funds for delinquent contributions, interest, and ERISA damages. In the decision, the court denied the employer's claim that, because they nominally worked for a payroll company also owned by the employer, certain of its employees were "leased" and not covered by the collective bargaining agreement. The court held that the alleged leased employees met the definition of employees under ERISA for whom contributions were required under the collective bargaining agreement. Durso v. 130-10 Food Corp. d/b/a Trade Fair Supermarkets, No. 05 Civ. 6065 (NG), 2009 WL 3084268 (E.D.N.Y. Sept. 23, 2009).

Withdrawal Liability

Sun, 16 Aug 2015 23:34:02 GMT

The attorneys at Friedman & Anspach have extensive experience with all stages of withdrawal liability assessment and collection, from the initial notice and demand, to responding to requests for review, to arbitrations, to federal court litigation. Below are some decisions from the federal courts.

HOP Energy, LLC v. Local 553 Pension Fund, I.B.T.: We successfully represented the Board of Trustees of an ERISA multiemployer pension plan in arbitration, before the district court, and before the Second Circuit in this withdrawal liability matter. The Second Circuit panel affirmed the decisions of the federal district court and the arbitrator which upheld the assessment of $1,204,007 in withdrawal liability by the Fund. In this significant 2-1 decision, the Circuit upheld the ERISA protections for pension plans in one of the few decisions addressing ERISA Section 4204's sale of assets exemption to the assessment of withdrawal liability. Eschewing the relevance of the language of collective bargaining agreements or other labor accords, the majority found assessment was warranted here because the asset purchase agreement between HOP and its buyer, on its face, disavowed the buyer's statutory obligation to contribute for substantially the same number of contribution base units, i.e., hours, as HOP had prior to the sale. Thus, the agreement did not exempt HOP from withdrawal liability pursuant to ERISA 4204. HOP Energy, LLC v. Local 553 Pension Fund, I.B.T, No. 10 Civ. 3889, 2012 U.S. App. LEXIS 9088 (2d Cir. May 3, 2012).

La Barbera v. United Crane and Rigging Services, Inc.: The court held the principal of a withdrawing employer who owned a sole proprietorship held in "common control" with the employer liable for the employer's withdrawal liability, and that the principal's receipt of the complaint in the lawsuit and subsequent participation in the litigation demonstrated that he had received proper notice of his withdrawal liability, as required under ERISA. This enabled the pension fund to enforce the judgment against the personal assets of the principal, even after the company had declared bankruptcy. La Barbera v. United Crane and Rigging Services, Inc., No. 08 Civ. 3274 (DLI), 2011 WL 1303146, 50 Employee Benefits Cas. 2238 (E.D.N.Y. March 02, 2011).

Miller v. Adco: The court upheld a pension fund's assessment of withdrawal liability based on the company's default of its withdrawal liability under ERISA. Specifically, the court rejected the employer's argument that it had never been notified of its default of withdrawal liability, and the court's finding that the complaint constituted proper notice of default under ERISA established new law for pension fund trustees to use in pursuing withdrawal liability claims. Miller v. Adco, No. 04 Civ. 3378 (WJM), 2005 WL 2044941 (D.N.J. Aug. 24, 2005).

Miller v. Collectron Corporation: A federal court upheld a pension fund's right to collect defaulted withdrawal liability from an employer, finding that the fund had properly notified the employer of its withdrawal liability, and that the employer had willfully disregarded these notices. Miller v. Collectron Corporation, No. 98 Civ. 2221 (JG), 1999 WL 730981 (E.D.N.Y. September 16, 2001).

Defending Benefit Fund Trustees and Union Officers

Sun, 16 Aug 2015 23:34:27 GMT

We have successfully defended trustees in a number of cases by participants alleging violations of ERISA. We also have successfully defended civil RICO, LMRA, and LMRDA cases against trustees and union officials. Below are some examples.

Langman v. Laub: The Second Circuit upheld the district court's dismissal of the lawsuit, finding that break in service rules did not violate the 133 and 1/3% accrual test under ERISA, that the trustees' interpretation of the plan documents was proper, and that no damages were available for an alleged omission in the summary plan description because the plaintiff was not prejudiced. Langman v. Laub, 328 F.3d 68 (2d Cir. 2003).

DeVito v. Local 553 Pension Fund: The court dismissed allegations that the trustees violated the anti-cutback rule, the accrual requirements, and the suspension of benefits provisions under ERISA, thereby defeating the proposed class action. DeVito v. Local 553 Pension Fund, No. 02 Civ. 4686 (RCC), 2005 WL 167590 (S.D.N.Y. January 26, 2005).

Duane Reade v. Allied Trades Council: The court dismissed all remaining claims pursuant to LMRA Sections 301 and 302. After pre-motion briefs, we prevailed in persuading the company to withdraw its RICO and LMRA section 301 claims against the union officers. Duane Reade v. Allied Trades Council, No. 04 Civ. 3542 (BSJ), 2005 WL 3038645 (S.D.N.Y. Oct. 7, 2005).

Andrea Doreen v. Building Material Teamsters Local 282: The court granted summary judgment, dismissing all RICO claims against the trustees. Andrea Doreen v. Building Material Teamsters Local 282, 299 F. Supp.2d 129 (E.D.N.Y. 2004).

Bona v. Barasch: The court dismissed plaintiffs' RICO and LMRDA claims against the union officers and severely limited ERISA claims against trustees of multiemployer funds. Bona v. Barasch, No. 01 Civ. 2289 (MBM), 2003 WL 1395932 (S.D.N.Y. March 20, 2003).