Raymond G. Heineman, Esq.

(RGH-4738)
KROLL HEINEMAN, LLC
Metro Corporate Campus I
99 Wood Avenue South, Suite 307
Iselin, New Jersey 08830
Tel: (732) 491-2100
Fax: (732) 491-2120
Attorneys for Petitioners

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NEW JERSEY BUILDING LABORERS’ )))))))) Hon.

DISTRICT COUNCILS and LOCAL 325, )
LIUNA, ) Civil Action No.08-
)
Petitioners, )
PETITION TO CONFIRM
v. ARBITRATION AWARD

MOLFETTA INDUSTRIES CO., INC., and

MOLFETTA CONSTRUCTION,

Respondents.

Petitioners, New Jersey Building Laborers’ District Councils and Local 325, Laborers’

International Union Of North America (“Union”) by their undersigned attorneys, allege and say:

1. The Union petitions this Court for an Order pursuant to Federal Arbitration Act,

(“FAA”), 9 U.S.C.A. §§ 9 and 13, confirming the award of the arbitrator in the matter of the

arbitration between the Union and Molfetta Industries, Co., Inc., and Molfetta Construction,

(“Respondent”), made on April 11, 2008, and directing that judgment be entered accordingly.

This petition is made on the following grounds.

2. At all times relevant, the Union was, and still is, a labor organization within the

meaning of Section 2(5) of the Labor Management Relations Act, (“LMRA”), 29 U.S.C.§

152(5), with a principal place of business and address at 104 Interchange Plaza, Cranbury, New

Jersey 08512.
 3. (a) At all times relevant herein, Molfetta Industries, Inc., having an address at 22

Jackson Street, Little Ferry, New Jersey, has been engaged in the building and construction

industry in the State of New Jersey including a job site at Jackson and Observer Highway,

Hoboken, New Jersey, and is an Employer within the meaning Section 2(2) of the LMRA 29

U.S.C. § 152 (2).

3. (b) At all times relevant herein, Molfetta Construction, Co., having an office and

address at 1015 Tonnelli Avenue, North Bergen, New Jersey, has been engaged in the building

and construction industry in the State of New Jersey, and an employer within the meaning of

Section 2(2) of items LMRA, 29 USC § 152 (s).

3. (c) Molfetta Industries, Inc. and Molfetta Construction Co. have functionally

integrated operations, centralized contact of labor relations, common management and common

ownership.

3. (d) Respondent constitutes a “single employer” so that a collective bargaining

agreement executed by one business entity binds the related business entity on all job sites.

4. The jurisdiction of this Court is based upon National Labor Relations Act, 29

U.S.C. § 141 et. Seq., the LMRA, 29 U.S.C. § 151 et. Seq., and FAA, 9 U.S.C.A. § 9 Venue

properly lies in this District pursuant to 29 U.S.C. § 1332 (e) (2) because the Union maintains its

principal offices in New Jersey and the underlying arbitration took place in New Jersey.

5. (a) On December 13, 2002. Respondent’s President, Michael Nichio, signed the

Statewide collective bargaining agreement between the Union and the Building, Site and General

Construction Contractors and Employees, which was effective by its terms from May 1, 2002

through April 30, 2007 and from year to year thereafter, including all times relevant herein. A

copy of the current collective bargaining agreement and the signature page executed by Michael
Nircio are attached hereto as Exhibits “A” and “B” respectively.

5. (b) On March 5, 2008, Respondent’s President Michael Nircio signed Employer

Contribution Reports, including a short form collective bargaining agreement, referring the

Statewide collection bargaining agreement described above in paragraph 5 (a), on behalf of

Molfetta Construction, Inc. The Employer Contribution Report and Short Form Agreement is

attached as Exhibit “C”.

6. The collective bargaining agreement described at paragraph 5, provides at Article

XXI, Arbitration and Grievances, for the final and binding arbitration of disputes under the rules

of the New Jersey State Board of Mediation.

7. The collective bargaining agreement, described at paragraph 5, providing for the

staffing of Respondent’s job sites through the referral procedure of the territorial local union

within the payment of contractual wages and fringe benefits on all job sites in the State of New

Jersey Article II, X and XI and provides, at Section 17.20, Preservation of Bargaining Unit

Work for the application of the collective bargaining agreement to related business entities .

8. On or about September, 2007 through February, 2008 Respondent failed to

apply the collective bargaining agreement with the union and to its Jackson and Observer

Highway, Hoboken, New Jersey job site in violation of the collective bargaining agreement

described above in paragraphs 5 through 7 and failed to employ shop steward Raymond

Boccamini.

9. On September 20, 2007, the Union submitted its dispute with Respondent,

described above in Paragraph 9 to arbitration before the New Jersey State Board of Mediation.

10. On November 8, 2007, an arbitration hearing was held before the arbitrator

designated by the New Jersey Board of Mediation at which both Respondent and the Union had
the opportunity to present testimony, and evidence, oral argument, including the submission of

proof by brief.

11. On April 11, 2008 after finding that Respondent was duly notified of the hearing

and considering all of the evidence presented in connection therewith, the Arbitrator made the

following award in writing, served upon the parties, a copy of which is attached as Exhibit “D”.

The award states that Raymond Boccamini is to be paid $43.02/hr. for 360 hours totaling

$15,487.20. Four Journeymen are to be paid at the rate of $42.27/hr for 1440 hours totaling

$60,868.80 for lost work opportunities for a grand total of $76,356.00.

12. With the award, the Arbitrator found Respondent liable to the Union for the lost

work opportunities and unpaid wages and benefit contributions resulting from the violation of

the collective bargaining in the amount of $76,356.00, plus interest, attorney’s fees and costs.

Notwithstanding the Award and Opinion of the Arbitrator and notice of the same, Respondent

has failed and refused in all respects, to comply with the Opinion and Award issued by the

arbitrator.

12. The arbitrator’s award was made in accordance with the terms and provisions of

the parties’ written agreement and is in all respects proper. No application has been made to

correct vacate, or modify the arbitrator’s award.

14. The parties have agreed , or the law so provides, that a judgment may be entered

upon the award made pursuant to the arbitration.

15. This application is based upon the Collective Bargaining Agreement, and

Opinion and Award identified above - all of which are attached.

WHEREFORE, Petitioners pray for the following relief:

(a) An Order confirming the Arbitration Award;

 (b) Entry of a judgment or decree by the clerk which may be enforced as any

other judgment or decree;

(c) Costs of this petition and of all subsequent proceedings and disbursements;

(d) Costs, attorney’s fees, and interest thereupon, as provided by law; and

(e) Such other relief as the Court deems equitable.

KROLL HEINEMAN, LLC

Attorneys for Petitioners

s/RAYMOND G. HEINEMAN
By: _________________________
RAYMOND G. HEINEMAN

Dated: June 4, 2008

at Iselin, New Jersey