Moore v. Navillus Tile, Inc. (276 F. Supp. 3d 110, 2017)

United States District Court for the Southern District of New York 2017-09-20

Internal Revenue Code Labor

Citations

Full opinion text

McMahon, C.J.:

Following a bench trial, the Court, for its findings of fact, conclusions of law, and verdict:

Findings of Fact on Liability

I.The Parties

1. Plaintiffs in Moore v. Navillus Tile, Inc., No. 14 Civ. 8326 (“the Moore Action”), are Trustees of four different groups of multi-employer fringe benefit funds.

2. Plaintiffs Terrence Moore, Kevin Kelly, John Coffey, Ronald Richardson, Michael Salgo, Michael Anderson, and Kevin O’Brien are Trustees of the Metal Lathers Local 46 Pension Fund, the Metal Lathers Local 46 Trust Fund, the Metal Lathers Local 46 Annuity Fund, the Metal Lathers Local 46 Vacation Fund, the Metal Lathers Local 46 Apprenticeship Fund, and the Metal Lathers Local 46 Scholarship Fund (collectively, the “Local 46 Funds”). (Joint Pretrial Order Stipulations (“JPTO Stip”), § III.B ¶ 1.)

3. The Local 46 Funds are “employee benefit plans” and “multiemployer plans” within the meaning of 29 U.S.C. § 1002(3) and (37), with their principal place of business at 61-02 32nd Avenue, Woodside, NY 11377. The Local 46 Funds are jointly administered by a Board of Trustees, comprised of an equal number of labor and management representatives in accordance with Section 302(c)(5) of the Labor Management Relations Act of 1947 (“LMRA”), 29 U.S.C. § 186(c)(5). (JPTO Stip. § III.B ¶1.)

4. Plaintiffs Angelo Angelone, Eric Lee, and Michael Salgo are Trustees of the Cement & Concrete Workers Pension Trust Fund, the Cement & Concrete Workers Welfare Trust Fund, the Cement & Concrete Workers Annuity Trust Fund, and the Cement <& Concrete Workers Scholarship Trust Fund. Plaintiff Kieran O’Sullivan is Trustee of the Cement & Concrete Workers Training and Education Trust Fund (collectively, the “Cement Workers Funds”). (JPTO Stip. § III.B ¶ 2.)

5. The Cement Workers - Funds are “employee benefit plans” and “multiera-ployer plans” within the meaning of 29 U.S.C. § 1002(3).and (37), with their principal place of business at 35-30 Francis Lewis Boulevard, 2nd Floor, Flushing, NY 11358. The Cement Workers Funds are jointly administered by a Board of Trustees, comprised of an equal number of labor and management representatives in accordance with LMRA § 302(c)(5), 29 U.S.C. § 186(c)(5). (JPTO Stip. § III.B ¶ 2.)

6. Plaintiffs Gino Castignoli, Michael Rendina, Robert Bertuzzi, Eddie Barbaria, Frank Martorano, Jr., Joseph Mitrione, Michael Salgo, and Kevin O’Brien are Trustees of the Cement Masons’ Local 780 Trust Fund, the Cement Masons’ Local 780 Pension Fund, the Cement Masons’ Local 780 Annuity Fund, the Cement Masons’ Local 780 Vacation Fund, and the Cement Masons’ Local 780 Apprenticeship Fund (collectively, the “Local 780 Funds”). (JPTO Stip. § III.B ¶ 3.)

7. The Local 780 Funds are “employee benefit plans” and “multiemployer plans” within the meaning of 29 U.S.C. § 1002(3) and (37), with their principal place of business at 1983 Marcus Avenue, Suite C116, New Hyde Park, NY 11042. The Local 780 Funds are jointly administered by a Board of Trustees, comprised of an equal number of labor and management representatives in accordance with LMRA § 302(c)(5), 29 U.S.C. § 186(c)(5). (JPTO Stip. § III.B ¶ 3.)

8. Plaintiffs Joseph Geiger, Stephen Mclnnis, Michael Cavanaugh, Paul Capur-so, John Sheehy, Paul Tyzner, David Mé-berg, Kevin O’Callaghan, John DeLollis, and Catherine Condon are Trustees of the New York City District Council of Carpenters Pension Fund, the New York City District Council of Carpenters Welfare Fund, the New York City District Council of Carpenters Apprenticeship, Journeyman Retraining, Educational and Industry Fund, and the New York City District Council of Carpenters Annuity Fund (collectively, the “Carpenters Funds”). (JPTO Stip. § III.B ¶4.)

9. The Carpenters Funds are “employee benefit plans” and “multiemployer plans” within the meaning of 29 U.S.C. § 1002(3) and (37), .with their principal place of business at 395 Hudson Street, New York, NY 10014. The Carpenters Funds are jointly administered by a Board of Trustees, comprised of an equal number of labor and management representatives in accordance with LMRA § 302(c)(5), 29 U.S.C. § 186(c)(5). (JPTO Stip. § III.B ¶ 4.)

10. Plaintiffs in Gesualdi v. Navillus Tile, Inc., 15 Civ. 8441 (the “Gesualdi Action”), are Trustees of a fifth group of multi-employer benefit funds, set up to benefit the members of the Teamsters Local 282 (“Local 282”).

11. Plaintiffs Thomas Gesualdi, Louis Bisignanó, Darin Jeffers, Michael O’Toole, Michael Bourgal, Frank H. Finkel, Joseph A. Ferrara, Sr., Marc Herbst, Denise Richardson, and Thomas Corbett' are Trustees and Fiduciaries of the Local 282 Welfare Trust Fund, the Local 282 Pension Trust Fund, the Local 282 Annuity Trust Fund,-the Local 282 Job Training Trust Fund, and the Local 282 Vacation and Sick Leave Trust Fund (collectively, the “Local 282 Funds”). The Local 282 Funds are “employee benefit plans” and “multiemployer plans” within the meaning of 29 U.S.C. § 1002(3) and (37), with their principal place of business at 2500 Marcus Avenue, Lake Success, NY 1Í042. (JPTO Stip. § III.B ¶ 5.)

12. Defendant Navillus Tile, Inc. d/b/a Navillus Contracting (“Navillus”) is a New York corporation with offices at 633 Third Avenue, New York, NY 10017. (JPTO Stip. § III.C ¶ 1.) Navillus is one of the largest unionized subcontractors in New York, serving primarily as a, masonry and concrete subcontractor on large union construction projects. (D. O’Sullivan Deck ¶ 39, DX-171; Tr. at 198:24-199:02.)

13. Defendant Advanced Contracting Solutions, LLC, d/b/a ACS NY LLC (“ACS”) is a Delaware limited liability company, formed on July 16, 2013. (PX-25.) On September 30, 2013, ACS filed as a foreign corporation in New York under the name ACS NY LLC. (JPTO Stip. § III.C ¶2.) ACS is an open-shop subcontractor that primarily performs concrete foundar tion and superstructure work. (Moriarty Decl. ¶ 2, DX-172.)

14. Defendant Time Square Construction, Inc. (“TSC”) is a New York corporation with offices at 355 Lexington Avenue, New York, NY 10017. (JPTO Stip. § III.C ¶ 3.) TSC is principally a general contractor. (K. O’Sullivan Decl. ¶¶ 20-22, DX-176.)

15. Defendant HDK Construction, LLC (“HDK”) .is a Delaware-limited liability company, authorized to do business in New York, maintaining its principal offices for doing business at 355 Lexington . Avenue, New York, NY 10017. (JPTO Stip. § III.C ¶ 4.)

16. Defendant Donal O’Sullivan is currently the sole owner of Navillus.

17. Defendant Kevin O’Sullivan is currently the sole owner of TSC.

18. Helen O’Sullivan, sister of Donal and Kevin, was initially named’ as an individual Defendant to this action, but Plaintiffs withdrew all claims against her during trial. (See Tr. at 849:06-13.) Helen has worked at Navillus since 1989, and has never had an ownership interest in, or control over, Navillus, TSC, or HDK. (D. O’Sullivan Decl. ¶ 36, DX-171.)

II. Navillus

19. Donal and Kevin O’Sullivan founded Navillus in 1987, with their brother Leonard, shortly after emigrating from Ireland. (Id. ¶ 1; K. .O’Sullivan Deck ¶ 7, DX-176.) Navillus has since grown from a small tile business to one of the largest union construction firms in New York. (D. O’Sullivan Deck ¶ 2, DX-171.)

20. In 1998, Leonard O’Sullivan left Navillus, leaving Donal and Kevin O’Sullivan each with 50% ownership of Navillus. (Id. ¶ 30; K. O’Sullivan Deck ¶ 9, DX-176.)

21. In 2006, Kevin O’Sullivan resigned as Navillus’ Vice President. (D. O’Sullivan Deck ¶ 31, DX-171.) On January 6, 2015— after commencement of this lawsuit—Kevin O’Sullivan sold his 50% interest in Na-villus to Donal O’Sullivan for $10,970,200. (Id. ¶ 33; DX-41; DX-150.)

22. Donal O’Sullivan is currently the sole owner of Navillus and also serves as its President and CEO. (D. O’Sullivan Deck ¶ 1, DX-171.) In addition to Donal O’Sullivan, Navillus’ board members are Peter Downes (Chief Estimator), Colin Mathers (Director of Operations), and Sa-leem Asmed (Vice President of Scaffolding Division). (Id. ¶¶ 34-35.) Padraigh Naugh-ton is Navillus’ Chief Financial Officer. (Id. ¶ 35.) Helen O’Sullivan is in charge of the payroll, department. (Id. ¶ 36.)

23.' Today, Navillus primarily serves as a masonry and concrete subcontractor, although it does other types of work as well, including stóñé, tile, steel, restoration, re-pointing, roofing, carpentry, electrical, plastering, and fireproofing work. (Id. ¶ 3; Tr. at 198:24-199:02.) "Navillus also occasionally serves as a general contractor on projects where it self-performs the majority of the work. (Tr. at 196:13-25.) From calendar year 2011 through calendar year 2016, subcontracting work accounted for approximately 83% of Navillus’ revenues, while general contracting work accounted for approximately 17% of revenues.' (D. O’Sullivan Deck ¶ 39, DX-171.)

24. The majority of Navillus’ current revenues come from concrete superstructure work. In calendar year 2016, Navillus’ revenues from concrete work amounted to $124 million. (Id. ¶ 39.)

25. Navillus’ audited revenues increased from $145 million in fiscal year 2011 to .$240 million in fiscal year 2016, a roughly 65% increase. (Id. ¶ 10; see DX-30; DX-31; DX-32; DX-33; DX-34.)

, 26. Since 2015, Navillus has been headquartered at 633 Third Avenue, New York, NY, where it leases 12,000 square feet of office space. (D. O’Sullivan Deck ¶ 52, DX-171.) From December 2011 until 2015, Na-villus’ was headquartered at 575 Fifth Avenue, New York, NY. (Id. ¶ 52.) Prior to 2011, Navillus also had headquarters at 53-18 11th Street in Long Island City, Queens and briefly at 460 Park Avenue in Manhattan. (Id.) Navillus also leases space on First Street in Queens and previously had yards on Review Avenue in Queens and in Sayreville, NJ. (K. O’Sullivan Decl. ¶¶ 29-30, DX-176.)

27. Navillus maintains its own telephone and computer systems. (D. O’Sullivan Decl. ¶ 52, DX-171.) Navillus maintains its own books and records, files its own taxes, and does not comingle funds with any other entity. (Id. ¶ 54.) Navillus does not share insurance policies, bank accounts, human resources, payroll systems, or professional services with any other company, nor does it pay for any other company’s bank accounts, human resources, payroll systems, or professional services. (Id.)

28. Navillus owns millions of dollars’ worth of construction equipment, including a fleet of over twenty-three vehicles. Navil-lus also rents or leases a substantial amount of equipment from various rental companies depending on the needs of the company. (Id. ¶ 55; DX-39.) From 2011 through 2016, Navillus made payments totaling over $280 million to more than 1,000 different vendors for the purchase or lease of equipment, materials, and services. (D. O’Sullivan Decl. ¶ 55, DX-171.)

29. One of Navillus’ vendors is Manhattan Tool, an entity that Donal O’Sullivan has owned since 2014. Manhattan Tool leases equipment to over 300 different construction companies in New York. (Id.)

30. From 2011 through the end of 2016, Navillus received revenues from roughly 450 different jobs through contracts with over 100 different customers. (Id. ¶ 56.)

A. Navillus’ Relationship with Unions

31. Navillus has been a union employer since it hired its first employees in 1989, and in 2016, Navillus employed over 1,600 union workers. (Id. ¶ 5.) However, in recent years Navillus has bid on some nonunion projects. (Tr. at 202:08-10.)

32. Navillus is now one of the biggest contributors to union fringe benefit funds in New York. (D. O’Sullivan Decl. ¶ 31, DX-171.) From calendar year 2011 through calendar year 2016, Navillus contributed more than $172 million to benefit funds, including $83 million to the funds represented by Plaintiffs. (Id. ¶ 9.)

33. Navillus is party to collective bargaining agreements (“CBAs”) with the following unions:

a. Bricklayers and Allied Craftwork-ers, Local 1;

b. Bricklayers and Allied Craftwork-ers, Local 7 (formerly Marble Carvers, Cutters & Setters Union of NY & NJ, Local 4; Marble Finishers Union of NY, Local 20; Tile Setters Union of NY & NJ, Local 52; and Tile Finishers of NY, Local 88).

c. NYC District Council of Carpenters, Locals 157 and 1556 (“Carpenters”);

d. Laborers International Union of North America (“LIUNA”) Cement & Concrete Workers of New York City (Laborers’ Locals 6A, 18A, and 20 Concrete Workers) (“Cement Workers”);

e. Cement Masons, Local 780 (“Local 780”);

f. International Union of Operating Engineers, Locals 13,15,138;

g. LIUNA Local 731 (Excavators);

h. LIUNA (Laborers) Local 66;

i. LIUNA Construction and General Building Laborers’ (Mason Tenders) Local 79;

j. Metallic Lathers and Reinforcing Ironworkers; Local 46 (“Local 46”);

k. Plasterers, Locals 1 and 262;

1. Pointers, Local 1;

m- Ironworkers Local 197 Stone Derrickmen & Riggers;

n. Stone Setter, Local 1;

o. Teamsters, Local 282 (“Local 282”);

p. LIUNA Laborer's Local 1010 (Pavers);

q. Ironworkers, Local 580; and

r. Locals 14,15,15A, and 15D (Operating Engineers and Surveyors).

(Id. ¶ 5.)

34. Navillus is a member of a multi-employer collective bargaining association known as the Building'Contractors Association, Inc. (“BCA”) and has authorized the BCA to represent Navillus for purposes of entering into CBAs. (JPTO Stip. § III.D ¶ 1.) Navillus is also a member of a multi-employer collective bargaining association known as the Hoisting and Scaffolding Trade Association, Inc. (“HASTA”), which has also entered into certain CBAs on Navillus’ behalf. (JPTO Stip. § HID ¶2.)

, B. The Collectiye Bargaining Agreements at Issue

35. As a result of-its membership in the BCA and HASTA, Navillus is bound to a CBA with Local 46 (the “Local 46 CBA”) and a CBA with the Carpenters (the “Carpenters CBA”). (Mem. Decision and Order Den. Defs.’ Mots, for Summ. J. (“Summ. J. Decision”), Dkt. No. 165, at 20; JPTO Stip. § III.D ¶5; see PX-7. (Local 46 CBA); PX-4 (Carpenters CBA).)

36. As part of the BCA, Navillus has been bound to a series of CBAs with Local 282. (JPTO Stip. -§ III.D ¶ 3.) The most recent CBAs between Navillus and Local 282 are for the periods July 1, 2008 to June 30, 2013 (the “2008 Local 282 CBA,” GX-3) and July 1, 2013 to June 30, 2016 (the “2013 Local 282 CBA,” GX-4) (collectively, the “Local 282 CBAs”).

37. At all times material to this litigation, Navillus was also bound by a CBA with Local 780 (the “Local 780 CBA”). (Summ. J. Decision at 22-23; see PX-5 (Local 780 CBA); see also JPTO Stip. § III.D ¶ 5.)

38. Navillus had a CBA with the Cement Workers from July 1, 2008 to June 30, 2011, which was renewed on July 1, 2011 and again on July 1, 2014 (the “Cement Workers CBA”). (Summ. j. Decision at 21-22; see PX-1 (Cement Workers CBA); see also JPTO Stip. § III.D ¶5.) Donal O’Sullivan signed Independent Employer Interim Agreements with the Cement Workers for the period July 1, 2011 to June 30, 2014, and for the period July 1, 2014 to June 30, 2017. (Summ. J. Decision at 10,21-22; PX-2; PX-3.)

39. Article III of the Local 46 CBA defines the work covered under the contract. (PX-7 at ML46_000100 to 000102.) Article I defines the geographic jurisdiction of the contract, which includes the five boroughs of New York * City. (PX-7 at ML46_000100.) .

40. Article XII of the Local 46 CBA requires contributions to the Local 46 Funds “for every hour worked or paid for all employees covered by this Collective Bargaining Agreement.” (PX-7 at ML46-000111 to 000112.)

41. Article XIII of the Local 46 CBA provides:

If the Employer merges or consolidates with another Employer or purchases, acquires, sells, leases or otherwise transfers its business operations to another Employer, the Employer agrees that it will guarantee that the Successor will be bound by all the terms and provisions of this Collective. Bargaining Agreement and the Employer shall assume responsibility for the continuation of the Collective Bargaining Agreement between this Union and any Successor.

(PX-7 at ML46_000115.)

42. Article XIX of the Local 46 CBA provides:

It is agreed that if any Employer contracts for or performs lathing work falling within the jurisdiction of the Union, as such -jurisdiction is set forth in the. Union’s Collective Bargaining Agreement with the Employing Metallic Furring and Lathing Contractors Association of New York, the Employer agrees that it will assign such work to Employees represented by the union and further, the Employer agrees that all the terms of this Collective Bargaining Agreement shall be applicable to the performance of such work. The Employer must not subcontract bargaining unit work, unless the subcontractor receiving the subcontract is bound and obligated under this Agreement. In the event that the subcontractor ... fails to make contributions to the Local 46 ;.. Funds or working assessments, as required by this Agreement ... the Employer shall be responsible for such non-compliance

(PX-7 at ML46-000117; see also PX-7 at ML46J300115 (“If[ ] a party to this Agreement employs a sub-contractor, the subcontractor shall be bound by all provisions of this Agreement.”).)

43. Article VII of the Cement Workers CBA defines the work covered by the contract. (PX-1 at CCW-NAV000783 to CCW-NAV000789.) Article I provides the geographical jurisdiction of the contract, which includes the five boroughs of New York City. (PX-1 at CCW-NAV000768.)

44. Article III of the Cement Workers CBA prevents an employer covered by the CBA from forming any new business entity—or from subcontracting any work covered by the CBA to another entity—unless that entity agrees to be bound by the CBA, and makes the original employer liable for any delinquent payments. (PX-1 at CCW_NAV000769 to

CCW_NAV000772; see also PX-1 at CCW-NAV000831.)

45. Article III Section 2 of the Cement Workers CBA provides: “If the Employer covered by the Agreement or any such owner or principal forms or acquires ... an interest, whether by ownership, stock, equitable or managerial, in another ... business entity,... performing bargaining unit work within this jurisdiction, the Agreement shall cover such other operation and such other bargaining unit Employee shall be considered an accretion to the bargaining . unit.” (PX-1 at CCW_NAV000772 to CCW-NAV000773 (emphasis added).) Article XIX Section 2 contains -an identical provision. (PX-1 at CCW-NAV000831.)

46. Article III Section 3 of the Cement Workers CBA provides:

If and when the Employer shall perform any work of the type covered by the Agreement, under its own name or under the name of another, as a corporation, company, partnership, or any other business entity, including joint venture or sole proprietorship, and1 the two (2) enterprises have substantially identical management, business purpose, operation, equipment, customers, supervision and/or ownership, wherein the employer exercises either directly or indirectly any significant degree of ownership management or control, the terms and conditions of the Agreement shall be applicable to all such work.

(PX-1 at CCW-NAV000773.)

47. Article III Section 5 of the Cement Workers CBA provides:

If and when the Employer shall perform any on-site construction work of the type covered by the Agreement, under its own name or under the name of another, as a corporation, company, partnership, or any other business entity, including a joint venture, and where there exists betwe'en the Employer and such other business entity interrelation of operations, common management, centralized control of labor relations and/or common ownership, the terms and conditions of the Agreement shall be applicable to all- such work. In determining the existence of the aforementioned criteria, the presence of the requisite control of commonality only at the top level of management shall be deemed to satisfy those criteria.

(PX-1 at CCW-NAV000774.)

48. Article IV of the Local 780 CBA defines the-work covered by the contract. (See PX-5 at 5-6.) Article III defines the geographical jurisdiction of the contract, which includes the five boroughs of New York City. (See PX-5 at 4-5.)

49. Article VI of the Local 780 CBA defines the hourly rates and fringe benefit contributions that must be made to the Local 780 Funds for journeypersons and apprentices “working on all jobs in the jurisdictional area of the Union” as defined in Article III for every hour worked. (PX-5 at 8-15.) ■

50. Article II Section 14 of the Local 780 CBA provides, in relevant part:

... [N]o Employer which is a party to this collective bargaining agreement shall enter into a contract with any other person, partnership, firm, corporation, joint venture or other entity to perform bargaining unit work on a job site, unless such person, partnership, firm corporation, joint venture or other entity has signed a collective bargaining agreement with the Union or is a member of an Association which has signed a collective bargaining agreement with the Union.

(PX-5 at 4.) Article XV Section 7 contains a nearly identical provision. (PX-5 at 25.)

51. Article VI Section 3(c) of the Local 780 CBA requires Navillus to comply with certain books and records requirements and provides, in part:

In addition, the aforementioned books and records of any affiliate, subsidiary, alter ego, joint venture or other related company of the Employer shall also be made available at all reasonable times for inspection and audit by, but not limited to, the accountants, outside independent auditors or other representatives of the Trustees of the [Local 780 Funds].

(PX-5 at 12.)

52. ■ Article XV Section 8 of the Local 780 CBA provides:

If an Employer covered by this Agreement or any such owner or principal forms or acquires by purchase, merger or otherwise, an interest, whether by ownership, stock, equitable or managerial, in another company, corporation, partnership or joint venture, performing bargaining unit work within this jurisdiction, this Agreement shall cover such other operation and such other bargaining unit employees shall be considered an accretion to the bargaining unit.

(PX-5 at 25 (emphasis added).)

53. Article VI Section 3(g) imposes personal liability on officers, stockholders, owners, and employees of Navillus responsible for the proper payment of contributions to the Local 780 Funds. (See PX-5 at 13.)

54. The Carpenters CBA defines the work covered by the CBA in Article III. (See PX-4 at 2-16.) Article IX defines the geographical jurisdiction of the CBA, which includes the five boroughs of New York City. (See PX-4 at 27-28.)

55. Article XVI of the Carpenters CBA requires Navillus to make certain fringe benefit contributions to the Carpenters Funds “for each horn’ worked of all employees covered by this Agreement and employed by said Employer within the territory of this Agreement.... ” (PX-4 at 46-47.)

56. Article VIII, Section 2 of the Carpenters CBA prohibits Navillus from “subcontracting] any work covered under this Agreement to any one in order to circumvent the payment of wages, fringe benefits, and working conditions provided herein.” (PX-4 at 27.)

57. Article X of the Carpenters CBA provides that any Navillus subsidiary or joint venture is bound by the terms of the CBA “when such subsidiaries or joint ventures engage in building construction work.” (PX-4 at 28.) It also provides that the CBA is binding on Navillus, “its successors and/or assigns, as well as any firm, be it corporation, partnership or joint venture [in] which the Employer,... its successors or assigns has or acquires a financial interest.” (PX-4 at 8-9.)

58. Article XVIII, Section 19(a) of the Carpenters CBA provides, in pertinent part:

If and when the Employer shall perform any work of the type covered by this Agreement, under its own name or under the name of another, as a corporation, company, partnership, or any other business entity, including a joint venture, wherein the Employer exercises either directly or indirectly any significant degree of ownership management or control, the terms and conditions of this Agreement including Fringe Benefits shall be applicable to all such work.

(PX-4 at 64.)

59. The 2008 Local 282 CBA defines the work covered by the contract in Section 5. (GX-8 at 2-3.) Section 4 defines the geographical jurisdiction of the CBA, which includes the five boroughs of New York City. (GX-3 at 2.)

60. Section 3(D)(1) of the 2008 Local 282 CBA provides that the CBA “shall apply to all present and future operations in the building construction and renovation industry in the area of the Union’s jurisdiction ... by the Employer, or by any person or persons who substantially own or control the Employer, whether such ownership or control is direct or indirect.” (GX-3 at 1 (emphasis added).)

61. Section 3(D)(3) of the 2008 Local 282 CBA provides that the CBA “shall be binding upon the parties hereto, their successors, administrators, executors and assigns.” (GX-3 at 2.) It further provides that:

In the event the entire operation or any part thereof is sold, leased, transferred or taken over by sale, transfer, lease, assignment, receivership or bankruptcy proceedings ... the Employees of the Employer affected shall be employed by the successor and such operation or part thereof shall continue to be subject to the terms and conditions of this Agreement for the life thereof .... No transaction described herein shall become effective unless and until the Union has been notified in writing by the Employer and the successor that the successor has agreed to assume the obligations of this Agreement.

(GX-3 at 2.) Section 3(D)(4) provides: “It is the intent of this provision to extend coverage of this Agreement to the maximum extent permissible, and to prevent any escape or evasion of this Agreement by any means, however sophisticated, and whether or not motivated by legitimate business reasons.” (GX-3 at 2.)

62. Section 31 of the 2008 Local 282 CBA provides:

The Employer hereby agrees that in order to protect and preserve the work opportunities of the Employees covered under this Agreement, it shall not establish or have an ownership interest in a DOUBLE BREASTED operation within the geographical jurisdiction of Local 282 ... or outside Said area if the work is to be performed within said .area.

(GX-3 at 20 (capitalization in original).)

63; The 2013 Local 282 CBA adopts the same terms as the 2008 Local 282 CBA with amendments not relevant here. (See GX-4 at 1.)

III. TSC / HDK

64. In 2004 or 2005, Kevin O’Sullivan decided to launch a new general contractor business, which ultimately became TSC. (See K. O’Sullivan Decl. ¶¶ 10-1Í, DX-176.)

65. Kevin and Donal O’Sullivan formally incorporated TSC on February 15, 2006. (Id. ¶ 11; DX-12.)

66. Kevin O’Sullivan became President of TSC, and has always been TSC’s only corporate officer and only director, al-' though both Donal and Kevin O’Sullivan were equal co-owners of the company until 2012. (K. O’Sullivan Decl. ¶¶ 2,12, DX-176; DX-13; DX-14.)

67. TSC’s first project was the development of a property that Kevin and Donal O’Sullivan co-owned with two other individuals at 48th Street and Eighth Avenue in Manhattan (the “48th Street Project” or “785 Eighth Avenue”). Navillus served as the concrete subcontractor on that project, as well as on TSC’s second project, 47 East 34th Street. (K. O’Sullivan Deck ¶¶ 20-21, 79-8Ó, DX-176; D. O’Sullivan Deck ¶ 50, DX-171.) ' '■

68. TSC was formed during a period of transition in the New York construction industry. While union work had previously dominated the market, non-union contractors were beginning to acquire a greater portion of the construction work in the city. (D. O’Sullivan Deck ¶46, DX-171.) Now, approximately ten years later, virtually all privately-funded residential construction projects in the city are non-union. (See Tr, at 295:09-296:11.)

69.TSC was, from its inception, an “open-shop” general contractor, meaning that it utilized both unionized and non-unionized subcontractors. (K. O’Sullivan Deck ¶¶ 105-06, DX-176.)

• 70. Once TSC was incorporated, Kevin O’Sullivan'hired several'Navillus employees to help run the company: Thea Clarke, who had been-Kevin O’Sullivan’s assistant at Navillus; Fergal Conefrey, an executive project manager for interior tile and stone at Navillus; and Anthony DelGreco, a director of operations at- Navillus. (Id. ¶ 24.)

71. TSC uses the same accountants as Navillus: Grassi & Co,, CPAs. (Id. ¶ 25.)

72. TSC began setting up its own bank accounts, first with Commerce'; Bank, which became TD Bank. (Id. ¶94.) On September 29, 2006, TSC began opening accounts with Chase and then, in October 2013, with NorthEast Community Bank. (See id.; DX-09.)

73. For the first six months of TSC’s existence, it subleased office space from Navillus at 53-18 11th St. in Long Island City, Queens, for $3,000 per month. (K. O’Sullivan Deck ¶26, DX-176; Clarke Deck ¶ 13, DX-175.)"

74. Beginning on October 25, 2006, TSC began leasing office space at 355- Lexington Avenue, where its offices remain today. (K. O’Sullivan Deck ¶ 26, DX-176; DX-123; DX-126.)

75. In order to obtain automobile insurance for TSC, Kevin O’Sullivan purchased a 2000 Mitsubishi Gallant- from Navillus that had been used by Helen O’Sullivan. (K. O’Sullivan Deck 1143, DX-176.) When TSC acquired more vehicles and no longer needed the Mitsubishi,' it sold the vehicle back to Navillus. (Id.)

76. ’ On May 1, 2012, TSC began leasing a portion of a. storage yard at 52-11 29th Avenue in Long Island City, Queens from Borden LIC Properties LLC. (Id. ¶ 29; DX-138.) Borden LIC Properties LLC is an entity jointly owned by Donal and Kevin O’Sullivan. (K, O’Sullivan' Decl. ¶ 29, DX-176.) The storage yard in question was also used by Navillus; however, when TSC began leasing a portion of the property, a fence was installed to divide TSC’s portion of the yard from Navillus’,,(Id.)

77. When Donal and Kevin O’Sullivan decided to develop the storage yard at 52-11 29th Avenue into a commercial self-storage facility, TSC had to find a new storage yard. (Id. ¶ 30.) At that time, Na-villus was renting a storage yard at 40 Jernee Mill Road in Sayreville, New Jersey. It assigned that lease to TSC in February 2014. (Id.; DX-125.) On March 18, 2015, TSC renewed the lease for an additional year. (DX-124.)

78. In August 2014, another construed on company contacted Donal O’Sullivan via email about temporarily leasing the property at 40 Jernee Mill Road, which the company believed was being used by Na-villus based on its observation of the property. (DX-101.) Donal O’Sullivan forwarded the email to Padraig Naughton, asking when “our lease” was due to expire. (DX-101.) Naughton informed him that the lease was currently with TSC and would inquire if Kevin O’Sullivan planned to renew it. (DX-101.)

79. In 2008, the Hoñ. Shira Schéindlin, ruling on a motion for a preliminary injunction in a separate case, concluded that, as of the date of her opinion, Navillus and TSC were not alter egos or joint employers; nor did they constitute a single employer. See Time Square Constr., Inc. v. Mason Tenders Dist. Council of Greater N.Y. & Long Island, No. 07 Civ. 7250, 2008 WL 55116, at *6-*7 (S.D.N.Y. Jan. 2, 2008).

80. Donal and Kevin O’Sullivan owned equal shares of TSC until 2012, when Donal O’Sullivan sold his shares to Kevin O’Sullivan. Kevin O’Sullivan felt that the sale would relieve pressure from the unions, which were accusing the brothers of running a double-breasted operation. (D. O’Sullivan Decl. ¶62, DX-171; Tr. at 121:18-124:08.) Kevin O’Sullivan testified that one of the reasons he wanted to purchase the shares was because another lawsuit had been filed that accused Navillus and TSC of being alter egos. (Tr. at 882:21-883:03.)

81. The brothers testified that they agreed to the terms of the sale on or about January 8, 2012, but decided to make the purchase effective on April 1, 2012, so that they could complete an independent valuation of TSC after the' conclusion of its fiscal year on March 31, 2012. (PX-144'; DX-40; DX-151; DX-164.) The brothers signed a Purchase Agreement dated January 8, 2012 (DX-40 at CONSNAV001209-COÑSNAV001210), but Kevin O’Sullivan did not pay Donal 'O’Sullivan the purchase price of $301,467.50 until October 19, 2012. (K. O’Sullivan Decl. ¶ 39, DX-176; D. O’Sullivan Decl. ¶62, DX-171; PX-144; DX-151; DX-164.)

82. I do not credit the brothers’, testimony that they agreed to the sale in January 2012, because documents in the record contradict their timeline of events. The study that was used to determine the fair market value of Donal O’Sullivan’s shares was dated October 19, 2012—the very day that Kevin O’Sullivan transferred the funds to Donal O’Sullivan’s account. (DX-164.) It was purportedly this study that set the purchase price of $301,467.50. However, the Purchase Agreement specifies that the purchase price was to be $301,467.50. (See DX-40 at CONSNAV001209.) Since the brothers could not have known on January 8, 2012, what the company’s valuation would be as of March 31, 2012—and since the valuation study was not completed until much later in the year—it is obvious that the January 8 date is a fiction, and that the brothers reached their agreement (and signed the Purchase Agreement) much later in the year. Kevin O’Sullivan effectively admitted as much. (Tr. at 887:10-13.)

83. I conclude, as a matter of fact, that Donal and Kevin O’Sullivan executed the Purchase Agreement and Assignment of Shares on October 19, 2012, and backdated both documents due to concerns about allegations from the unions that TSC and Navillus were alter egos;

A. Two Fifth Avenue and the Formation of HDK

84. In February 2012, TSC obtained the contract for restoration and renovation work at Two Fifth Avenue'. (K. O’Sullivan Deck ¶ 41, DX-176.) Two Fifth Avenue was first job that TSC had secured in approximately eighteen months. (Id. ¶,47; Tr. at 878:11-16.) Although TSC was to be the general contractor at Two Fifth Avenue, Kevin O’Sullivan decided that TSC would self-perform some of-the work in order to generate additional revenue. (K. O’Sullivan Deck ¶41, DX-176; Dooley Deck ¶ 13.)

85. In order to create an extra layer of liability insurance for the Two Fifth Avenue job, Kevin O’Sullivan decided to' pay TSC’s laborers through a separate legal entity, called a “paymaster” or “payroll master.” (K. O’Sullivan Deck ¶ 41, DX-176.) HDK was originally created to be that paymaster. (Id. ¶¶ 41-42.)

86. On January 27, 2012, HDK was formed by the filing of its Certificate of Formation with the Delaware Secretary, of State. (PX-143.) The initials “HDK” stood for three of the O’Sullivan siblings: Helen, Donal, and Kevin. (Tr. at 851:25-852:06.)

87. The Certificate lists Donal and Kevin O’Sullivan as HDK’s only two members. (PX-143.) However, HDK’s -LLC Agreement, dated January, 30, 2012, lists Kevin O’Sullivan as the only member of HDK. (See DX136.)

88. - Kevin O’Sullivan hired Martin Dooley to be the superintendent/project manager for Two Fifth Avenue. (K. O’Sullivan Deck ¶ 45, DX-176.) Dooley, who had been employed by Navillus from 1998 or 1999 until June 2010 (Dooley Deck ¶¶ 3-4), was responsible for overseeing the project’s other subcontractors; he also oversaw the HDK employees who were performing the demolition, masonry, and cleanup work. (Dooley Deck ¶¶ 13-14.)

89. As Two Fifth Avenue was the first project on which TSC actually performed some of the construction work, TSC needed a vehicle to move equipment to and from the project. (K. O’Sullivan Deck ¶ 44, DX-176.) Thus, on March.28,. 2012, TSC .purchased a GMC van from Navillus for $7,000. (Dooley Deck ¶ 31;. see DX-168.)

90. TSC also needed heavy-duty scaffolding and a sidewalk bridge for the Two Fifth Avenue project. (K. O’Sullivan Deck ¶ 45, DX-176.) Unable to find the needed scaffolding quickly from local suppliers, TSC purchased the necessary materials from Navillus. (Id. ¶45; Dooley Deck ¶¶ 25-26; Tr. at 879:03-09.) Navillus charged TSC approximately $40,000 for the scaffolding. (DX-169.) TSC borrowed Navillus’ truck to transport this scaffolding material from the divided storage yard in Long Island City to the Two Fifth, Avenue job site. (Dooley Deck ¶ 26.)

91. When a technical masonry issue arose on Two Fifth Avenue, .Dooley and Fergal Conefrey asked Colin Mathers, Na-villus’ Director of Operations, to assist. (Dooley Deck ¶ 17.) Mathers agreed to meet with the project’s engineers and representatives of the project’s owners .and coop board, along with Dooley and Cone-frey, to explain his advice on the masonry problem. (Dooley Decl. ¶ 17.)

92. TSC also used Navillus as a visa sponsor for one of its workers on Two Fifth Avenue, Donald Dunnion. Dunnion was originally employed by Navillus; his employer sponsor information was not corrected when he switched to working for TSC on Two Fifth Avenue. (Tr. at 895:11— 896:04.)

B. The Sugar Hill Project

93. In early 2012, Navillus submitted a bid' to general contractor Mountco Construction (“Mountco”) for a concrete superstructure and foundation subcontract on a project at 400 West 155th Street in the Sugar Hill district of West Harlem (the “Sugar Hill” project). (D. O’Sullivan Decl. 168, DX-171; Downes Decl. ¶ 16, DX-178; PX-118A.)

94. Navillus’ bid was prepared by Peter Downes, Navillus’ Chief Estimator and Vice President. (Downes Decl. ¶ 17, DX-178.) Navillus typically bids on approximately 350 to 400 projects per year, and is generally awarded 10%-15% of the projects on which it bids. (Id. ¶ 13.) Downes personally prepares approximately 25% of all of Navillus’ bids (generally for the larger and more complex projects); his team prepares the rest, subject to his approval. (Id.)

95. Before submitting the bid, Downes and Donal O’Sullivan went to Mountco’s offices to discuss the project. (Id. ¶ 17; see Tr. at 131:03-10.) Rich Caruso, Mountco’s Vice President of Construction, was present at that meeting, as was Kieran Power, who was hired by Mountco as a consultant to review the concrete subcontractor bids on the project. (Tr. at 405:15-19; 406:21-407:07.) Joel Mounty, .the principal of Mountco, met Donal O’Sullivan after that meeting. (See Tr. at 407:25-408:06.)

96. Mountco considered factors like the contractor’s level of experience and ability to obtain a performance bond to be important when evaluating bids and considered those factors in addition to price. (See Tr. at'416:10-15; 463:10-17.)

97. Navillus’ initial bid for the Sugar Hill project was for $13,113,900. (PX-118A.) Several witnesses testified that Na-villus’ bid was rejected, and that the reason for its rejection was that its bid was too high. (See Tr. at 126:11-18 (D. O’Sullivan testimony); 438:05-09 (Mounty testimony); Downes Decl. If 18, DX-178.)

98. However, Navillus was the only union contractor that submitted a bid to Mountco. (Tr. at 438:20-22.) Mounty testified that, all things being, equal, he would choose a non-union subcontractor over one that used union labor, because having a union subcontractor could create a conflict on the job site. (See Tr. at 441:08-442:04.)

99. As is customary, Mountco sought a “best and final” bid for the Sugar Hill project. (See Tr. at 473:20-474:01; PX-118A.) According to the “leveling sheet” used by Mountco to compare the bids, Navillus (not TSC.) submitted a “best and final” bid for the Sugar Hill project, in the amount of $11,950,000. (PX-118A.) There is no indication on the leveling sheet that any other company that had submitted an initial bid also submitted a “best and final” bid.

100. But Navillus was not ultimately awarded the contract for the Sugar Hill project. (See PX-118A.) Instead, the contract was awarded to TSC, at the exact price of Navillus’ best and final bid, $11,950,000.

101. Kevin O’Sullivan testified that he learned about the Sugar Hill project from his brother Donal O’Sullivan in March or April 2012, after Navillus’ initial bid had been rejected. (K. O’Sullivan Decl. 1Í 48, DX-176; Tr. at 862:07-09.) According to Kevin, Donal told him that Navillus’ bid had been rejected because it was too high and because Mountco would not use union contractors. (K. O’Sullivan Decl. ¶ 48, DX-176.)

102. As noted above, TSC had very little work lined up and needed the business. (Id. ¶¶ 48-49.) The only other job that TSC had in early 2012 was the project at Two Fifth Avenue. (Id. ¶ 47; Tr. at 878:11-16.) Indeed, in an email dated July 26, 2012, Navillus’ Chief Financial Officer, Padraig Naughton, told Donal O’Sullivan that he had to “write off’ an undisclosed sum that TSC owed to Navillus in order to keep TSC afloat, which resulted in a reduction in Navillus’ 2012 profits. (PX-100.)

103. TSC had never previously performed concrete foundation or concrete superstructure work as a subcontractor. (Tr. at 862:15-18.) TSC’s previous experience was exclusively as a general contractor. (Tr. at 862:22-25.) At the time, TSC did not have any employees who were experienced in concrete construction, nor did it have a superintendent or project manager on staff. (Tr. at 863:01-08.) TSC did not own any of the equipment necessary to perform the job, such as foundation excavators, concrete forms, or compressors. (Tr. at 879:08-20.) TSC had also never performed work on a public-sector project and had no experience dealing with'the obligations of a prevailing wage job. (K. O’Sullivan Decl. ¶49, DX-176.) In other words, TSC had no objective way to perform the Sugar Hill job and lacked the experience that Mounty testified that he valued in selecting subcontractors to work on his projects.

104. Navillus, of course, had plenty of experience doing concrete construction on public-sector jobs as a subcontractor.

105. Donal O’Sullivan offered to help Kevin “find the right people to hire” in order to get TSC the Sugar Hill contract. (Id.) Per Donal O’Sullivan’s advice, Kevin O’Sullivan contacted one of Navillus’ project managers, . John Kuefner, who recommended he ask Rory MeSwiney for assistance in preparing TSC’s bid. (Id. ¶50.)

106. Kévin O’Sullivan hired MeSwiney, then a Navillus project manager, as a consultant to prepare TSC’s bid for Sugar Hill. (Id. ¶ 51; Tr. at 864:18-20.) At the time, MeSwiney was twenty-five years old, had never previously been employed by TSC, and had never previously prepared a bid for a concrete construction subcontract during his work at Navillus. (See Tr. at 864:21-865:03, 992:23-993:05.)

107. Kevin- O’Sullivan testified that he contacted Kieran Power, Mountco’s consultant who was evaluating the concrete bids on Sugar Hill, about submitting, a bid from TSC for the project in April 2012. (Tr. at 863:22-864:10.) Power had previously worked for Kevin O’Sullivan for three years and served as Senior Project Executive on TSC’s largest project,- 785 Eighth Avenue. (Tr. at 863:09-13, 864:01-10.) Power told Kevin O’Sullivan that TSC’s bid was “very late” but would be considered. (Tr. at 864:05-10.)

108. TSC submitted its initial bid for the Sugar Hill project on April 16, 2012, in the amount of $12,000,000. (PX-116.) Unlike the bids from other companies, which separated the estimated cost into foundation- work and superstructure work and contained détailed estimates for various types of work, the TSC bid contained no such breakdown. (Compare PX-118A with PX-116.) Indeed, TSC’s entire bid was less than two pages long. (PX-116.) As Peter Downes, Navillus’ Chief Estimator, testified, bids for these types of complex jobs are usually much longer and more detailed, with line items for things like the cost of materials and equipment. (See Tr. at 998:10-13.) TSC’s non-conforming bid document -was of a piece with its inexperience in this type of work.

109. Nonetheless, and despite Moriarty’s preference for an experienced contractor (see Tr. at 441:18-15), TSC’s bid was accepted by Mountco two days later, on April 18, 2012. (PX-116; PX-118A.) In the end, the amount of the accepted bid was $11,950,000—the exact amount listed on Mountco’s leveling sheet as being the “best and final” bid submitted by Navillus. (PX-116; PX-118A.)

110. Kevin O’Sullivan testified that he gave McSwiney full authority to determine the final bid amount, including the power to change the overall bid amount from the original $12,000,000. (Tr. at 866:11-19.)

111. Mounty testified that one of the important things that led Mountco to select TSC as the concrete subcontractor was its ability to handle the project’s prevailing wage obligations. (Tr. at 416:10-24.) TSC, as discussed, had absolutely no experience with prevailing wage projects. (K. O’Sullivan Decl, ¶49, DX-176.) Mountco’s acceptance of TSC’s bid based on this criterion makes clear that Mountco was relying on Navillus’ experience in this area in order to complete the job.

112. After TSC was awarded the Sugar Hill project, Kevin O’Sullivan hired Hazel Corcoran as a consultant (through her company. LJB. Contracting, Inc.) to assist with contract negotiations. (Id. If 53.) Hazel Corcoran had been employed by Navillus as an engineer until approximately 2008. (Id.) Her husband, Patrick Corocran, was also a Navillus employee. (D. O’Sullivan Decl. ¶ 79, DX-171.) ' s '

113. The negotiations over the Sugar Hill contract were conducted by TSC’s outside counsel, Corcoran, McSwiney, Donal O’Sullivan, and Donal O’Sullivan’s assistant, Krystle Venechanos. Kevin O’Sullivan was not copied on most of the email correspondence about the contract negotiations.

a. On April 25, 2012, Power sent a draft scope of work to McSwiney for TSC’s review, copying Corcoran, Caruso, and Donal O’Sullivan.- (PX-176.) Later that same day, Power sent a sample insurance certificate to the same group of individuals. (PX-177.) Kevin O’Sullivan was not copied on either email.

b. On April 27, 2012, Power sent two emails, one attaching TSC’s bid with his notes and one attaching a proposed bond format, again copying only Corcoran, McSwiney, and Donal O’Sullivan from the TSC side. (PX-178; PX-179.)

c. On April 30, 2012, Power sent an email directly to Donal O’Sullivan, copying Corcoran and McSwiney, with questions about TSC’s proposal and requesting a conference call to discuss. (PX-179.)

d. On May 4, 2012, Power sent an email to McSwiney, copying Corcoran and Donal O’Sullivan, with questions about TSC’s proposed use of a crane on the project. (PX-180.)

e. On May 22, 2012, Corcoran sent emails to TSC’s counsel, copying.Donal O’Sullivan and McSwiney, attaching the proposed Sugar Hill subcontract and exhibits for review. (PX-181; PX-182.)

f. On May 29, 2012, TSC’s counsel replied to Corcoran with proposed changes to the Sugar Hill contract..(PX-Í83.) Corcoran replied to this email on May 30, copying McSwiney, Kevin O’Sullivan, and Dpnal O’Sullivan, requesting a conference call “with Donal and Kevin” to discuss. (PX-183; see also PX-185 (emails arranging conference call).)

g. Later on May 30, 2012, Corcoran emailed Power asking for a conference call with Mountco representatives to discuss the contract, copying McSwiney, Donal O’Sullivan, and Venechanos. (PX-184.) Kevin O’Sullivan was not copied on this email. .

h. On June 1, 2012, counsel for Mountco emailed Corcoran to arrange a conference call to “go over the Sugar Hill agreement.” Donal O’Sullivan was copied on this email, but Kevin O’Sullivan was not. (PX*-186.) , .

i.. After a' series of back-and-forth negotiations between counsel for Mount-co and TSC over the contract terms, Corcoran again emailed Donal O’Sullivan on June 5 to arrange a conference call to discuss the contract with TSC’s lawyer, Jason Samuels. (PX-187.) Kevin O’Sullivan was not copied on this email either. Later that day, McSwiney responded to the email chain, stating, “Jason—Just spoke to Donal now, he is gone into a meeting but he said he will call you after to 'discuss the issues himself.” (PX-188 at NAV0004618.)

j. On June 7, 2012, Venechanos sent two emails to TSC’s counsel listing the outstanding issues to be negotiated on the Sugar Hill contract, including “The issue of our right to stop work due to non-payment,” the amount of “Our markup,” that “We must request and see Mountco’s bond,” and that “We must review the MBE requirements in the prime contract.” (PX-188.) Finally, she commented about the issue of indemnity against breach of contract: “Donal, I know you don’t want to push -too hard on this issue, but its [sic] worth pushing" back again.” (PX-188.)

k. On June 11, 2012, TSC’s counsel Jason Samuels emailed Donal O’Sullivan directly, stating, “Donal ... With regard to the ‘second’ modification to Paragraph 5.3.2,1 don’t like that provision at all. It basically allows Mountco to withhold money that they’ve been paid by the Owner for your work .... It’s up to you, how do you want me to handle this?” (PX-189 (emphasis added).) Kevin O’Sullivan was not included on this email.

l. On June 14, 2012, Samuels' sent-Venechanos a package of "the final subcontract documents for signature, copying Donal (but not Kevin) O’Sullivan. Samuels stated, “Please sign two.originals and keep a copy for comparison when Mountco returns their set of fully executed documents to you.” (PX-190.)

m. On June 28, 2012, Mountco sent a document to McSwiney regarding site •audits for a signature, which McSwiney immediately forwarded to Venechanos asking her to “Please advise.” (PX-193.) Venechanos responded,' instructing McSwiney not to sign the document and copying Samuels and Donal O’Sullivan. Samuels responded, saying he would contact Mountco’s counsel “and let her know that we are still discussing the labor certification.” (PX-193.) Again, Kevin O’Sullivan was not copied on any of these emails.

114. Donal O’Sullivan was the driving force in the negotiation of TSC’s Sugar Hill contract; he was not simply a consultant about prevailing wage issues. Aside from participating in one conference call on May 31, there is no evidence that Kevin O’Sullivan played any rol,e in the contract negotiations, while Donal O’Sullivan is copied on nearly every email in the record concerning, the contract’s terms. The emails indicate that TSC’s counsel took instructions directly from Donal O’Sullivan and his assistant about what negotiating positions to take.

115. I do not credit the testimony, of Donal O’Sulhvan that Samuels’ June 11 email stating “It’s up to you,” (PX-189) was anything but an indication that TSC’s counsel was taking direction straight from Donal O’Sullivan. {See Tr. at .142:05-08.) Indeed,- when Donal O’Sullivan was asked whether. Venechanos’ June 7 email about the indemnity clause meant that it was “up to you to decide whether to push back on that indemnity clause,” he responded, “It would seem that way.” (Tr. at 142:04-06.)

116. The fact that Venechanos was involved in these negotiations at all is itself illuminating. Venechanos worked at Navil-lus as Donal O’Sullivan’s assistant and was never employed by TSC. Yet she communicated directly with TSC’s counsel about outstanding issues about what she characterized as “our” rights under the contract. (See PX-188.) Furthermore, when it came time to have the contract signed, TSC’s counsel sent the final copies to Venechanos with instructions for signature—not to Kevin O’Sullivan or anyone at TSC. (See PX-190.)

117. On these facts, I cannot reasonably conclude that TSC won the bid for the Sugar Hill project on its own merits, independent of Navillus’ involvement. Instead, I conclude that, when Donal O’Sullivan learned that Navillus’ bid would be rejected because it was a union-affiliated contractor, he arranged for the contract to be awarded to his brother’s firm at exactly the same price that Navillus had proposed in its best and final offer.-1 further conclude that Donal O’Sullivan remained in charge of negotiating the contract with Mountco, and assured both Mountco and Kevin O’Sullivan that Navillus would supply key employees with sufficient experience to handle the project—which, as discussed below, it did.

118. Sugar Hill broke ground on July 19, 2012. (See PX-194.)

119. In August 2012, John Kuefner resigned his position at Navillus and formed his own consulting company, CCB Experts, LLC (“CCB”). (Tr. at 691:18-20; PX-80.) According to Kuefner’s testimony, he did not begin consulting on Sugar Hill until shortly after the formation of CCB on August 24, 2012. (Kuefner Decl. ¶¶ 20-21, DX-174; see Tr. at 692:19-694:09.) The first invoice from CCB to TSC for work on the project was dated September 29, 2012. (PX-81 at TS-0000949.) Kuefner testified that when he began working on the Sugar Hill project, he took over as project manager for Rory McSwiney, who returned to Ireland. (Tr. at 749:21-24.) According to Kuefner, he began working on the project after it was already underway and the foundation work was about three-quarters complete. (Tr. at 749:9-12.) He testified that he was not present on the Sugar Hill site while the excavation and foundation work was beginning; that work was supervised'by McSwiney. (Tr. at 749:13-20.)

120. For several reasons, I do not credit Kuefner’s testimony that he did not begin working on the Sugar Hill project until after he resigned from his position at Navillus—which, according to him, was on August 21, 2012. (Kuefner Decl. ¶ 16, DX-174.) That timeline is irreconcilable with the testimony of other witnesses and the documentary evidence in the record.

121. First, William O’Donnell, another Navillus employee who specialized in the pouring of concrete foundations (see Tr. at 634:10-15),. testified that he was asked to provide advice on the Sugar Hill project. O’Donnell, who was never employed by TSC or HDK, took time off from his work at the World Trade Center project to visit the Sugar Hill site in Harlem. (Tr. at 618:01-619:04.) O’Donnell testified that he visited the project five or six times. (Tr. at 617:17-25, 619:05-11.)

122. O’Donnell testified that he met both Kuefner and McSwiney the first time he visited Sugar Hill, and that Kuefner may have been supervising McSwiney, who was “running the job” on a day-to-day basis. (Tr. at 620:10-21.) O’Donnell also testified that he visited the site to provide advice on “what way they would attack the foundation,” meaning that the foundation work was still in its early stages at the time of his first visit. (Tr. at 619:05-11.)

123. In the context in which O’Donnell’s testimony was given, it is reasonable to infer that his advice was sought early in the process of pouring the foundation for Sugar Hill, and that Kuefner was on site at the same time as McSwiney-during this phase of construction. This is inconsistent with Kuefner’s testimony that he was not involved in the Sugar Hill project until after the foundation was three-quarters complete and that he replaced, rather than supervised, McSwiney.

124. Second, Eoin Moriarty, another Navillus employee, testified that he. was contacted by Kuefner in “the spring of 2012” to help, consult on the Sugar Hill project. (Moriarty Decl. ¶ 20, DX-172.) Ku-efner contacted Moriarty to ask him to oversee the wage compliance and certified payroll issues for TSC on .Sugar Hill. (Id.) Moriarty performed this work for TSC through Moriarty’s consulting company, Xcel Advisors. (Id. ¶¶ 20-21.)

125. Again, this evidence supports the conclusion that Kuefner was already performing work, for TSC at the time he retained Moriarty’s consulting company, Xcel Advisors, which had to have been sometime by the spring of 2012. That conclusion is consistent with Kuefner’s own testimony that he had discussions with Kevin O’Sullivan about the project around July 2012 (Kuefner Deck ¶ 19, DX-174), that he filed the paperwork to establish CCB approximately two months before it was formally created on August 24, 2012 (Tr. at 691:21-23; see Kuefner Deck ¶ 18, DX-174), and that, before he left Navillus, he “had already lined up CCB’s work” for TSC on Sugar Hill. (Kuefner Deck ¶20, DX-174.)

126. Therefore, I conclude that Kuef-ner was performing services for TSC related to the Sugar Hill project for several months while still employed by Navillus. Moriarty, who remained employed by Na-villus until August of 2013, was also simultaneously working for .both companies. (Moriarty Deck ¶ 26, DX-172; . see also PX-107 (showing payments from Navillus to Xcel Advisors during this period).)

127. On October 1', 2012, Patrick Cor-coran, husband of Hazel Corcoran, was hired by TSC as general superintendent on the Sugar Hill job. (PX-82; D. O’Sullivan Deck ¶ 79, DX-171; Tr. at 695:20-25.) Patrick Corcoran was also á longtime Na-villus employee who had worked on the Rapid Repair project with Moriarty and the 1717 Broadway project with Kuefner. (D. O’Sullivan' Deck ¶79, DX-171; Tr; at 498:22-23, 501:08.) He was continuously employed by Navillus up until his transfer to TSC on October 1, 2012. (PX-83.) As general superintendent, Corcoran reported to Kuefner and was responsible for hiring employees for the job. (Tr. at 695:20-696:04.)

128. Donal O’Sullivan also visited the Sugar Hill site at least once. (D. O’Sullivan Deck ¶ 82, DX-171.)

129. Although the Sugar Hill contract was awarded to TSC, Kevin O’Sullivan arranged to, have most or all of the employees, including Patrick Corcoran and Moriarty (through his Xcel.Advisors consultancy), paid through HDK. (See Tr. at 348:15-19; PX-56; PX-82.)

130. In addition to management, several .timbermen, lathers, and laborers were moved 'from the Navillus payroll to the HDK payroll to work on the Sugar Hill project. Although complete payroll data is not available, those individuals included, at minimum: Dennis Harvey (see PX-262 (employed by Navillus in June 2012); PX-265 (employed by • HDK in November 2012)); James Gidursky (see PX-107 at MLCCW005400 (employed by Navillus in June 2012); PX-265 (employed by HDK in November 2012)); Nialk Gillespie (see PX-107 at MLCCW005406 (employed by Na-villus in July 2012); PX-266 (employed by HDK in November 2012)); Vincent Cien-fuegos (see PX-255 (employed by Navillus continuously from October 2011 through August 2012, then from July 2013 through November 2013); PX-266 (employed by HDK in November 2012)); and Damian Calders (see PX-257 (employed by Navil-lus in December 2011); PX-266 (employed by HDK November 2012)).

131. At least four individuals, after working for HDK on Sugar Hill, moved to Navillus’ payroll for future projects, including: Daniel Morales (see PX-265 (employed by HDK in November 2012); PX-258 (employed by Navillus in June 2013)); Carlos Carattina (see PX-265 (employed by HDK in November 2012); PX-253 (employed by Navillus in August 2014)); Vincent Cienfuegos (see PX-255 (employed by Navillus continuously from October 2011 through August 2012, then from July 2013 through November 2013); PX-266 (employed by HDK in November 2012)); and Hugh MeCallion (see PX-266 (employed by HDK in November 2012); PX-259 (employed by Navillus in April 2014')).

132. When Mountco’s principal, Joel Mounty, encountered difficulties on the Sugar Hill project, he reached out to Donal O’Sullivan for assistance,

a.In February 2013, when Mountco received inquiries from the New York City Department of Housing Preservation and Development (“HPD”)—the government agency involved in financing the Sugar Hill project (Tr. at 876:23-877:02)—about paperwork it needed from TSC, Joel Mounty personally forwarded the request to Donal O’Sullivan. In that email, Mounty stated: “Donal, you [have] got to step-in [sic] and straighten out TSC on the Sugar Hill project. HPD is all over my ass about TSC not’being responsive and submitting required paperwork in any sort of timely fashion.... I shook your hand on this deal, nobody else’s. I’m only dealing with obstinate staff, people, biting at my [heels].” (PX-155.) ...

b. On September 26, 2013, Mounty again reached out to Donal O’Sullivan when HPD sent a letter to Mountco seeking' additional information. In that email he said, “Donal, I sent this letter to Kevin last night. I’ve previously sent you emails asking that you, Kevin, address HPD’s request for info. I’ve received no reply from any of my emails from you or Kevin.” (PX-158.)

c. On September 30, 2013, Mounty forwarded anot