Gciu-Employer Retirement Fund v. quad/graphics, Inc. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 7 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GCIU-EMPLOYER RETIREMENT FUND No. 17-55667
and BOARD OF TRUSTEES OF THE
GCIU-EMPLOYER RETIREMENT FUND, D.C. Nos.
2:16-cv-03391-ODW-AFM
Plaintiffs-counter- 2:16-cv-03418-ODW-AFM
defendants-Appellees,
v. MEMORANDUM*
QUAD/GRAPHICS, INC.,
Defendant-counter-
plaintiff-Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Argued and Submitted October 10, 2018
Pasadena, California
Before: HURWITZ and OWENS, Circuit Judges, and PRESNELL,** District
Judge.
The issue for decision is whether Quad/Graphics, Inc. (“Quad”) partially
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
withdrew from the GCIU-Employer Retirement Fund (“the Fund”) in 2010, after
employees at Quad’s Versailles, Kentucky, facility voted to decertify a collective
bargaining agreement (“CBA”). An arbitrator found that Quad had not withdrawn,
but on review, the district court disagreed. We have jurisdiction of Quad’s appeal
from the district court judgment under 28 U.S.C. § 1291. Like the district court, we
must presume the arbitrator’s factual findings are correct but review his conclusions
of law de novo. See 29 U.S.C. § 1401(c); CMSH Co. v. Carpenters Tr. Fund for N.
Cal., 963 F.2d 238, 239–40 (9th Cir. 1992). We affirm the district court’s decision.1
1. An employer partially withdraws from a multiemployer pension plan when
it “permanently ceases to have an obligation to contribute under one or more but
fewer than all collective bargaining agreements under which the employer has been
obligated to contribute.” 29 U.S.C. § 1385(b)(2)(A)(i); see id. § 1385(a)(2). The
district court correctly held that Quad partially withdrew from the Fund in 2010. The
Versailles CBA “became void prospectively as of the decertification of” the union
as the employee’s bargaining representative in December 2010, extinguishing
Quad’s ongoing obligations to contribute to the Fund on behalf of Versailles
employees. See Sheet Metal Workers’ Int’l Ass’n v. W. Coast Sheet Metal Co., 954
F.2d 1506, 1509 (9th Cir. 1992).
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In a separately filed opinion, we today also affirm the district court’s judgment
concerning the sequence of calculations to be applied in determining withdrawal
liability.
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2. The Versailles CBA did not explicitly extend Quad’s contribution
obligation past the union’s decertification. See id. (“A contract to contribute to a
trust fund of a Union with which [the employer] has no ongoing collective
bargaining relationship makes no sense.”). Rather, the CBA states only that Quad
“will contribute monthly . . . for each . . . shift worked or paid for under this
Agreement.” It does not provide for contributions for any payments for work
performed after decertification. That Quad did not pay the contribution incurred
because of shifts worked in December 2010 until after the following January 1 does
not mean it had ongoing obligations under the CBA. See 29 U.S.C. §
1385(b)(2)(A)(i).
3. Although we may consider extrinsic evidence in interpreting a CBA, see
Ariz. Laborers, Teamsters & Cement Masons Local 395 Health & Welfare Tr. Fund
v. Conquer Cartage Co., 753 F.2d 1512, 1517 (9th Cir. 1985), Quad has identified
no evidence suggesting that the parties intended Quad to be contractually obligated
to pay into the Fund after decertification. The arbitrator’s factual finding that
Versailles employees used some CBA-banked vacation time after the decertification
vote, at most indicates that Quad believed its employees were still entitled to
vacation. It does not bear on whether Quad had continuing obligations to the Fund.
AFFIRMED.
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GCIU-Employer Retirement Fund v. Quad/Graphics, Inc., No. 17-55667 FILED
OWENS, Circuit Judge, dissenting: DEC 7 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I respectfully dissent. I agree with the analytical framework described: As
of a union’s decertification, a collective bargaining agreement (CBA) typically
becomes void prospectively, but an employer’s obligations could continue beyond
decertification if a CBA explicitly provides. See Sheet Metal Workers’ Int’l Ass’n
v. W. Coast Sheet Metal Co., 954 F.2d 1506, 1509 (9th Cir. 1992). I disagree,
however, with the holding that this CBA did not explicitly extend the obligations
of Quad/Graphics, Inc. (Quad) beyond decertification.
The CBA entitled Quad employees to earned vacation time that they could
use at any point during the year. Alternatively, Quad employees could elect not to
use their earned vacation time and have it paid out to them at the year’s end. Quad
was only contractually obligated to “pay out any unused vacation time at the end of
a calendar year on or before January 31st of the following year.” Therefore, even
after decertification, Quad’s obligation to pay for unused vacation time was
continuing since it could not make this contribution until at least January 1, 2011.
See Alday v. Raytheon Co., 693 F.3d 772, 784-85 (9th Cir. 2012).
As such, I disagree that Quad partially withdrew from the Fund in December
2010 and would reverse the district court’s decision.
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