Opinion
DOCKET NO. A-0153-12T2
09-23-2014
ENGO COMPANY, Plaintiff-Appellant, v. NEW JERSEY CARPENTERS FUNDS, and THE TRUSTEES THEREOF, Defendants-Respondents.
Apruzzese, McDermott, Mastro & Murphy, P.C., attorneys for appellant (Maurice J. Nelligan, Jr., of counsel and on the brief; Jonathan F. Cohen, on the brief). Kroll Heineman Carton, LLC, attorneys for respondents (Albert G. Kroll, of counsel; John P.J. Mattiace, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Simonelli. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4270-12. Apruzzese, McDermott, Mastro & Murphy, P.C., attorneys for appellant (Maurice J. Nelligan, Jr., of counsel and on the brief; Jonathan F. Cohen, on the brief). Kroll Heineman Carton, LLC, attorneys for respondents (Albert G. Kroll, of counsel; John P.J. Mattiace, on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
This appeal arises from an order entered by Judge Travis L. Francis denying an order to show cause filed by plaintiff, Engo Company, seeking to disqualify the permanent arbitrator selected by plaintiff and defendants, New Jersey Carpenters Funds and its Trustees, through a collective bargaining agreement (CBA). Judge Francis also granted plaintiff's motion to stay the arbitration process pending the outcome of this appeal. We now affirm.
Pursuant to the standards established by the Supreme Court in Barcon Associates, Inc. v. Tri-County Asphalt Corp., 86 N.J. 179 (1981), plaintiff seeks a judicial declaration that the permanent arbitrator, J.J. Pierson, is not a neutral, objective arbiter. Plaintiff claims that Pierson receives compensation from defendants for legal services, and is compensated by the Pension and Health Funds. Specifically, it claims that U.S. Department of Labor records show the Carpenters Union paid Pierson $79,035 for "legal" work and for "law firm" work from 2007 to 2011.
In response, defendants claim that on August 20, 1992, plaintiff became part of a CBA with the United Brotherhood of Carpenters, Local 821, called "the Inside Agreement." This Agreement governs all manufacturing work conducted inside plaintiff's manufacturing shop. The Inside Agreement has been renewed a number of times, the latest of which covered a three-year period from June 1, 2007 to May 31, 2010.
Plaintiff is also a signatory to a CBA between the New Jersey Regional Council of Carpenters of the United Brotherhood of Carpenters and the Building Contractors Association of New Jersey. This CBA is referred to as the "Outside Agreement." As the record before us shows, plaintiff became a signatory of the Outside Agreement when it executed a "Short Form Agreement," dated September 13, 1995. As its name denotes, the Outside Agreement governs all installation work conducted outside of plaintiff's manufacturing shop.
Through the Inside Agreement, plaintiff agreed to have the representative on the Board of Trustees represent plaintiff's interests in both the New Jersey Carpenters Welfare Fund and the New Jersey Carpenters Pension Fund. The record shows that the Trustees, which included a member representing plaintiff's interests, appointed Pierson as a permanent arbitrator to adjudicate all disputes between plaintiff and defendants.
Judge Francis specifically addressed this issue and found:
[B]oth parties agree to selecting a permanent arbitrator in the collective bargaining agreement. Although the collective bargaining agreement did not reference Pearson [sic] by name, it referenced another collective bargaining agreement between the Building Contractor's Association of New Jersey and the Northeast Regional Council of Carpenters, which authorized Pearson [sic] as the permanent arbitrator.
Specifically, the CBA between [plaintiff] and the New Jersey Regional Council . . . of Carpenters provides that Article 13 captioned Disputes, if the parties are unable to agree on any settlement, the dispute shall be arbitrated equitably and according to the alternative dispute resolution process established in the collective bargaining agreement between the Regional Council of Carpenters and the Building Contractor's Association of New Jersey.
Under Article 13, [plaintiff] and the Union are unequivocally parties to the CBA for the years in question and clearly Article 13 of the CBA incorporates by reference, the dispute resolution process from the BCA agreement.
Judge Francis noted that our Supreme Court has declared, as a matter of judicial policy, that:
[T]he means chosen by the parties for settlement of their differences under a collective bargaining agreement is given full play. The clear thesis is that the judicial role should be a very limited one, considerably less even than the restricted court function in commercial arbitration matters.
[Standard Motor Freight, Inc. v. Local Union No. 560, Int'l Bhd. of Teamsters, 4 9 N.J. 83, 95 (1967) (quoting United Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564, 566, 80 S. Ct. 1343, 1346, 4 L. Ed. 2d 1403, 1406 (1960)).]
Ultimately, Judge Francis found plaintiff had not presented any competent evidence challenging Pierson's impartiality in this particular case. He found Pierson did not have a financial interest in the outcome of the dispute. His compensation as permanent arbitrator was predetermined by agreement and was not subject to change by the parties here. Judge Francis specifically addressed and rejected plaintiff's claims that Pierson was compromised by having received compensation by the Fund in other unrelated matters. Judge Francis found that Pierson received this compensation "in connection with the performance of his duties as permanent arbitrator."
Defendants argue, and Judge Francis found, that plaintiff's true objective here is to dismantle the entire "permanent arbitration process" plaintiff had agreed to be bound by through multiple CBAs. Judge Francis rejected plaintiff's argument as "non-persuasive." We agree. Plaintiff has not presented any competent evidence that would give grounds for disqualifying Pierson under the standards established by the Court in Barcon Associates, Inc., supra.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION