Erwin Popkin, Esq. 

December, 2003        

New York State and city officials should move forward on a $1.5 billion expansion plan for the Jacob K. Javits Convention Center in New York City as a means of providing new jobs in construction and tourism-related services.

The project which would double exhibition space, add a fifth-floor ballroom and include a hotel, has been stalled despite two years of talks between the city and state, Fields said. It is time for Gov. George E. Pataki and Mayor Michael R. Bloomberg "to stop talking and start acting," C. Virginia Fields - Manhattan Borough President - said in a statement calling for the project to get under way in 2004.

That timetable would allow the project to take advantage of Liberty Bonds, a low-cost tax-exempt financing vehicle made available by the federal government to aid economic revitalization after the September 2001 terrorist attack on the World Trade Center.

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A multi-employer fringe benefit plan stated facts sufficient to allege that two masonry companies were alter egos of a company that failed to pay contributions required under a collective bargaining agreement, and thus are possibly liable for such contributions.

However, the individual owners of the two companies, who were officers of their companies and the company that owed contributions, are not personally liable for the companies' contributions, said Judge Karen Nelson Moore, writing for the US Court of Appeals for the Sixth Circuit.

Corporate officers and shareholders do not fall within the Employee Retirement Income Security Act's definition of "employer," and therefore cannot be held personally liable for a corporation's ERISA obligations by virtue of their relationship to the corporate employer alone, the court said. However, if officers and/or shareholders have acted as the "alter egos" of their corporations or otherwise met the requirements that justify "piercing the corporate veil", they might be personally liable, the court added.

The court first found that the plan did not allege sufficient facts for considering the individuals as the alter egos of Greg Anthony Construction or for piercing the corporate veil of Pezzo Builders and Columbus Masonry to reach the individuals. The court said the fact that one of the individuals was an officer in each of the three companies did not establish alter ego liability.

"At best, [the plans'] allegations suggest that the individual sown companies that intertwine their activities with Greg Anthony Construction. These limited allegations do not support piercing the corporate veil of any of these companies to reach the individual officers or shareholders," the court said.

The court did find that the plan made a prima facie showing that Prezzo Builders and Columbus Masonry were the alter egos of Greg Anthony Construction, by alleging facts that established complete "unity of ownership" such that the corporations did not have "separate personalities." The court noted that all three companies had the same address and the same president and treasurer. In addition, Greg Anthony Construction used Columbus Masonry letterhead for submitting union reports and business memoranda and started a job that was completed by Columbus Masonry.

The court said the other element of the alter-ego doctrine, that there be an element of injustice or fundamental unfairness, was also satisfied because "in the absence of dismantling the corporate fiction," the plan would not be able to recover the full amount due under the collective bargaining agreements.

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New claims filed with state agencies for unemployment insurance benefits declined by 15,000 to a seasonally adjusted total of 355,000 for the week ended Nov. 15, the Labor Department's Employment and Training Administration reported Nov. 20.

It was the lowest level of new UI claims since February 2001 - shortly before the recession began and the weekly total eventually rose to more than 500,000. Analysts said the latest figures add to mounting evidence that the labor market is generating a net increase of jobs after more than two years of shrinking payrolls.

"The ongoing downtrend in claims suggests that labor markets continued to strengthen in November," said economists at UBS Investment Research in New York.

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Mass layoffs of 50 or more workers by a single employer in the construction industry during the third quarter (July, August, September) of 2003, dropped to 101 from 143 during the second quarter (April, May, June), according to data released by the Labor Department's Bureau of Labor Statistics Nov. 20. The latest figures compare with 63 mass layoffs in construction reported for the third quarter of 2002.

BLS also reported, based on preliminary data, that 11,161 construction workers filed initial claims for unemployment benefits with sate agencies during the third quarter of 2003, less than half of the number that applied in the second quarter - 23,064. The latest figures compare with 12,177 construction workers who filed initial claims for unemployment benefits during the third quarter of 2002.