In Re Trump Entertainment Resorts, Unite Here Local 54

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 14-4807
____________
IN RE: TRUMP ENTERTAINMENT RESORTS
UNITE HERE Local 54,
Appellant
On Appeal from the United States Bankruptcy Court
for the District of Delaware
(D. Del. Bankruptcy No. 14-12103)
Bankruptcy Judge: Honorable Kevin Gross
Argued on March 4, 2015
Before: SHWARTZ, SCIRICA and ROTH, Circuit Judges
(Opinion filed: January 15, 2016)
Kathy L. Krieger, Esquire (Argued)
Darin M. Dalmat, Esquire
Evin F. Isaacson, Esquire
James & Hoffman
1130 Connecticut Avenue, N.W.
Suite 950
Washington, DC 20001
William T. Josem, Esquire
Cleary, Josem & Trigiani
325 Chestnut Street
Constitution Place, Suite 200
Philadelphia, PA 19106
Counsel for Appellant
Roy T. Englert, Jr., Esquire (Argued)
Joshua S. Bolian, Esquire
Robbins, Russell, Englert, Orseck, Untereiner & Sauber
1801 K Street, NW
Suite 411-L
Washington, DC 20006
Counsel for Appellees Trump
Entertaiment Resorts Inc, TER
Development Co LLC, TERH LLP Inc.,
Trump Entertainment Resorts
Development Company LLC, Trump
Entertainment Resorts Holdings LP,
Trump Marina Associates, Trump Plaza
Associates LLC and Trump Taj Mahal
Associates
2
Mark B. Conlan, Esquire
Gibbons
One Gateway Center
Newark, NJ 07102
Counsel for Appellee Official Committee
of Unsecured Creditors of Trump
Entertainment Resorts
James T. Bentley, Esquire
Lawrence V. Gelber, Esquire
Schulte, Roth & Zabel
919 Third Avenue
New York, NY 10022
Counsel for Appellee National
Retirement Fund
Allan S. Brilliant, Esquire
Dechert
1095 Avenue of the Americas
New York, NY 10036
G. Eric Brunstand Jr., Esquire
Dechert
90 State House Square
Hartford, CT 06103
Counsel for Appellee First Lien Lenders
Diana O. Embree, Esquire
Barbara A. O’Neill, Esquire
Paul A. Thomas, Esquire
3
National Labor Relations Board
Contempt Litigation Branch
1015 Half Street, S.E.
Washington, DC 20570
Counsel for Amicus Appellant National
Labor Relations Board
David M. Bass, Esquire
Michael D. Sirota, Esquire
Cole Schotz
25 Main Street
Court Plaza North
P.O. Box 800
Hackensack, NJ 07601
Counsel for Amicus Appellees 710 Long
Ridge Road Operating Company II,
LLC, 240 Church Street Operating
Company II, LLC, 1 Burr Road
Operating Company II, LLC, 245
Orange Avenue Operating Company II,
LLC and 107 Osbourne Street Operating
Company II, LLC
OPINION
ROTH, Circuit Judge:
4
This appeal requires us to resolve the effect of two
potentially conflicting provisions of federal law. Section
1113 of the Bankruptcy Code allows a Chapter 11 debtor to
“reject” its collective bargaining agreements (CBAs) under
certain circumstances.1 The National Labor Relations Act
(NLRA) prohibits an employer from unilaterally changing the
terms and conditions of a CBA even after its expiration.2
Thus, under the NLRA, the key terms and conditions of an
expired CBA continue to govern the relationship between a
debtor-employer and its unionized employees until the parties
reach a new agreement or bargain to impasse. This case
presents a question of first impression among the courts of
appeals: is a Chapter 11 debtor-employer able to reject the
continuing terms and conditions of a CBA under § 1113 after
the CBA has expired?
UNITE HERE Local 54 (Union) appeals the
Bankruptcy Court’s order granting the Debtors’ motion to
reject their CBA with the Union pursuant to § 1113(c). The
Union contends that the Bankruptcy Court lacked subject
matter jurisdiction to approve the Debtors’ motion because
the CBA had expired. The Debtors, Trump Entertainment
1
11 U.S.C. § 1113.
2
See 29 U.S.C. § 158(a)(5); NLRB v. Katz, 369 U.S. 736, 743
(1962) (holding that an employer commits an unfair labor
practice if, without bargaining to impasse, it unilaterally
changes existing terms or conditions of employment); Litton
Fin. Printing Div. v. NLRB, 501 U.S. 190, 198 (1991) (citing
Laborers Health & Welfare Trust Fund for N. Cal. v.
Advanced Lightweight Concrete Co., 484 U.S. 539, 544 n.6
(1988) (applying the Katz doctrine to expired CBAs)).
5
Resorts, Inc., and its affiliated debtors,3 contend that §
1113(c) governs all CBAs, expired and unexpired, and that
the Bankruptcy Court’s interpretation of § 1113 is consistent
with the policies underlying the Bankruptcy Code.
We conclude that § 1113 does not distinguish between
the terms of an unexpired CBA and the terms and conditions
that continue to govern after the CBA expires. Thus, we will
affirm the order of the Bankruptcy Court.
I.
A.
The facts giving rise to this appeal are undisputed.
The Debtors own and operate the Trump Taj Mahal casino in
Atlantic City, New Jersey. The casino employs 2,953
employees, 1,467 of whom are unionized. UNITE HERE
Local 54 is the largest of the employee unions, representing
1,136 employees. The most recent CBA between the Union
and Taj Mahal was negotiated in 2011 for a three-year term.
It contained a duration provision – titled “term of contract” –
that provided:
The collective bargaining agreement shall
remain in effect until 11:59 p.m. on September
14, 2014 and shall continue in full force and
effect from year to year thereafter, unless either
party serves sixty (60) days written notice of its
3
The affiliated debtors include Trump Taj Mahal Associates,
LLC, the Union’s counter-party to the CBA.
6
intention to terminate, modify, or amend the
Collective Bargaining Agreement.
In early 2014, due to the casino’s deteriorating
financial health,4 the Debtors attempted to negotiate a new
agreement. Specifically, on March 7, the Debtors gave the
Union notice of their “intention to terminate, modify or
amend” the CBA and asked the Union to begin negotiations
for a new agreement. The Union did not respond. On April
10, the Debtors followed up on their request. On April 30,
the Union responded that “while [it is] also anxious to
commence bargaining, the Union is simply not ready, some
five months out [from expiration of the CBA], to commence
negotiations” but it would “contact [the Debtors] within the
next several months.”
On August 20, at the Debtors’ request, the Union met
with the Debtors to discuss terms for a new agreement.
Although the Debtors emphasized their critical financial
situation, the Union was not receptive to negotiations. On
August 28, the Debtors proposed modifications to the CBA,
including replacing the pension contributions with a 401(k)
program, and replacing the health and welfare program with
subsidized coverage under the Affordable Care Act. The
Union responded that it was prepared to work with the
Debtors on workers’ pensions, but not on the health and
welfare proposal. No agreement was reached.
4
In 2011, Taj Mahal’s earnings before interest, taxes,
depreciation, and amortization (EBITDA) were
approximately $32 million. The casino’s earnings plummeted
to a loss of $6.1 million in 2013. As of June 30, 2014, Taj
Mahal’s twelve-month EBITDA was a loss of $25.7 million.
7
On September 9, 2014, the Debtors filed for Chapter
11 bankruptcy protection. On September 11, the Debtors
asked the Union to extend the term of the CBA, but the Union
refused, unless the Debtors agreed to terminate the extension
upon the filing of a § 1113 motion. It is undisputed that, with
no new agreement in place and with the Debtors having
served notice to modify the agreement, the CBA expired on
September 14, 2014.
On September 17, the Debtors sent the Union a
proposal with supporting documentation to demonstrate the
Debtors’ “dire” financial condition, and requested to meet “on
any day and at any place” within the next seven days. The
Union proposed to meet on September 24, for the first
bargaining session. After the meeting on September 24, the
Union requested additional information, which the Debtors
promptly provided. Two days later, the Union sent a
“counter-proposal” to the Debtors, which consisted largely of
more information requests. Also on September 26, the
Debtors filed a motion pursuant to 11 U.S.C. § 1113 seeking
to reject the CBA and implement the terms of the Debtors’
last proposal to the Union. The Debtors asserted that
rejection of the CBA was necessary to their reorganization
based on a three-part business plan, which anticipated
concessions from the first lien lenders, local and state
authorities, and the Union.
On October 17, 2014, following evidentiary hearings,
the Bankruptcy Court granted the Debtors’ motion to reject
the expired CBA and authorized the Debtors to implement
their last proposal.
8
B.
In granting the Debtors’ motion, the Bankruptcy Court
addressed three issues. First, the court considered whether it
had the authority to grant the motion to reject the CBA, given
that the CBA had expired after the Debtors filed for
bankruptcy but before the Debtors filed the rejection motion.
The court concluded that § 1113 permits rejection of expired
CBAs, reasoning that § 1113 is not limited to “unexpired” or
“executory” CBAs. The court observed that, in passing §
1113 as a whole, Congress “recognized the need for an
expedited process by which debtors could restructure labor
obligations” and “provided several checks” to protect union
employees.5 The court could not discern a reason for
distinguishing between expired and unexpired CBAs because
granting the union the power to delay the bankruptcy process
would subvert the “policy and bargaining power balances
Congress struck in Section 1113.”6
Having decided that § 1113 encompasses expired
CBAs, the Bankruptcy Court determined that the Debtors
satisfied the requirements of § 1113. Specifically, the court
found that the Debtors’ proposal provided “for those
necessary modifications . . . that are necessary to permit the
reorganization of the debtor;” that the Union rejected the
proposal without good cause; and that the balance of the
equities clearly favored rejection of the CBA.7 The
Bankruptcy Court noted that, based on “uncontroverted
5
In re Trump Entm’t Resorts, Inc., 519 B.R. 76, 86 (Bankr.
D. Del. 2014).
6
Id. at 87.
7
See id. at 88-92; see generally 11 U.S.C. § 1113(b)(1).
9
evidence” at the hearing, the Debtors would be forced to close
the casino and liquidate if the requested relief were not
granted.8 The Bankruptcy Court also expressed concern that
“while [the] Debtors were imploring the Union to engage
with them in discussions, offering to meet ‘24/7,’ . . . the
Union was engaging in picketing, a program of
misinformation . . . and, most egregiously, communicating
with customers who had scheduled conferences at the Casino
to urge them to take their business elsewhere.”9 It was
“clear” to the Bankruptcy Court that “the Union was not
focusing its efforts on negotiating to reach agreement with
Debtors.”10
Finally, the Bankruptcy Court determined that, under §
1113, it could authorize the Debtors to modify the expired
CBA and implement the terms of Debtor’s proposal. The
court observed that the text of § 1113 did not explicitly grant
the court authority to implement the proposed terms, but the
“reasoned view” is that a debtor in possession is authorized
“to implement changes to the terms and conditions of
employment that were included in the section 1113 proposals
approved by the bankruptcy court.”11
The parties petitioned this Court for direct appeal,12
which we granted on December 15, 2014. The Union
challenges only the first issue addressed by the Bankruptcy
8
Id. at 87.
9
Id. at 82.
10
Id.; see id. at 81 (“The correspondence admitted into
evidence is alarming in showing the Debtors were literally
begging the Union to meet while the Union was stiff-arming
the Debtors.”).
10
Court, whether a Bankruptcy Court may grant a motion to
reject an expired CBA under § 1113.13
II.
The Bankruptcy Court had jurisdiction under 28
U.S.C. §§ 157(b) and 1334(a).14 We have jurisdiction under
11
Id. at 92 (citing 7 Collier on Bankruptcy ¶ 1113.06[1][b]
(16th ed. 2014)).
12
See 28 U.S.C. § 158(d)(2).
13
The Union raises the issue of whether the Bankruptcy
Court had the authority to “implement changes in the post-
expiration terms and conditions of employment” in its
Statement of Issue Presented for Review and in a single
footnote in the Argument section of its brief, but does not
articulate any arguments in support of review. Because the
Union does not pursue this argument in its briefing, we
assume, without deciding, that the Bankruptcy Court had the
authority to implement the terms of the § 1113 proposal.
14
Although the Union contends that the Bankruptcy Court
erred in finding that it has jurisdiction under 11 U.S.C. §
1113, this case concerns the scope of a non-jurisdictional
statute. See Arbaugh v. Y&H Corp., 546 U.S. 500, 515-16
(2006). The Bankruptcy Court’s interpretation of § 1113 did
not violate the statute vesting the NLRB with exclusive
jurisdiction to administer the NLRA. See 29 U.S.C. § 160.
As the Bankruptcy Court recognized, § 1113 allows the
debtor only to terminate or modify its ongoing obligations to
its employees; it does not give a bankruptcy court the
authority to interpret or administer the NLRA. See Trump
Entm’t Resorts, Inc., 519 B.R. at 87 (“This is a no greater
11
28 U.S.C. § 158(d)(2)(A). We review the Bankruptcy Court’s
legal determinations de novo.15
III.
The question before us is whether § 1113 authorizes a
Chapter 11 debtor to reject the continuing terms and
conditions of a CBA after its expiration. Two statutory
schemes are at issue: the NLRA and Chapter 11 of the
Bankruptcy Code. We read these two statutory frameworks
seriatim, and assume that Congress passed each subsequent
law with full knowledge of the existing legal landscape.16
intrusion on the NLRB’s jurisdiction than if the Court were to
apply Section 1113 to a [CBA] which has not expired by its
terms.”).
15
In re Makowka, 754 F.3d 143, 147 (3d Cir. 2014).
16
See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990).
12
Our role in interpreting a statute is to give effect to
Congress’s intent.17 Because we presume that Congress
expresses its intent through the ordinary meaning of its
language, we begin our analysis by examining the plain
language of the statute.18 When statutory “language is plain,
the sole function of the courts—at least where the disposition
required by the text is not absurd—is to enforce it according
to its terms.”19
Bankruptcy courts are divided on whether § 1113
permits debtors to reject expired CBAs.20 But a mere
17
See Idahoan Fresh v. Advantage Produce, Inc., 157 F.3d
197, 202 (3d Cir. 1998) (citing Negonsott v. Samuels, 507
U.S. 99, 104 (1993)).
18
See id. (citations omitted).
19
Hartford Underwriters Ins. Co. v. Union Planters Bank,
N.A., 530 U.S. 1, 6 (2000) (internal quotation marks omitted);
see Parker v. NutriSystem, Inc., 620 F.3d 274, 277 (3d Cir.
2010).
20
Compare In re 710 Long Ridge Rd. Operating Co., II, 518
B.R. 810, 830 (Bankr. D.N.J. 2014) (holding that § 1113(c)
applies to CBAs that had expired prepetition), In re
Karykeion, Inc., 435 B.R. 663, 675 (Bankr. C.D. Cal. 2010)
(same), In re Ormet Corp., No. 2:04-CV-1151, 2005 WL
2000704, at *2 (S.D. Ohio 2005) (same), In re Hoffman Bros.
Packing Co., 173 B.R. 177, 184 (9th Cir. BAP 1994) (holding
that the CBA “continues ‘in effect,’ as recognized by §
1113(e) and as was implicit in § 1113(c)”), Accurate Die
Casting Co., 292 N.L.R.B. 982, 987-88 (1989) (dicta), with In
re Hostess Brands, Inc., 477 B.R. 378, 382-83 (Bankr.
S.D.N.Y. 2012) (holding that § 1113(c) is only applicable to
current CBAs), In re San Rafael Baking Co., 219 B.R. 860,
13
divergence in statutory construction does not render § 1113
ambiguous.21 Instead, we must determine whether § 1113 is
ambiguous by examining “the language itself, the specific
context in which that language is used, and the broader
context of the statute as a whole.”22 “Specifically, in
interpreting the Bankruptcy Code, the Supreme Court has
been reluctant to declare its provisions ambiguous, preferring
instead to take a broader, contextual view, and urging courts
to ‘not be guided by a single sentence or member of a
sentence, but look to the provisions of the whole law, and to
its object and policy.’”23 A provision is ambiguous, “when,
despite a studied examination of the statutory context, the
866 (9th Cir. BAP 1998) (same), In re Sullivan Motor
Delivery, Inc., 56 B.R. 28, 29, 31 (Bankr. E.D. Wis. 1985)
(same), In re Charles P. Young Co., 111 B.R. 410, 413
(Bankr. S.D.N.Y. 1990) (noting that rejection of a CBA
pursuant to § 1113(c) is a moot issue if the agreement expired
by its own terms and before the bankruptcy court holds a
hearing on rejection).
21
See In re Price, 370 F.3d 362, 369 (3d Cir. 2004).
22
Marshak v. Treadwell, 240 F.3d 184, 192 (3d Cir. 2001)
(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997)); see King v. Burwell, 576 U.S. __, 135 S. Ct.2480,
2489 (2015) (“But oftentimes the meaning–or ambiguity–of
certain words or phrases may only become evident when
placed in context.” (quotation marks omitted)).
23
Price, 370 F.3d at 369; see Official Comm. of Unsecured
Creditors of Cybergenics Corp., ex rel. Cybergenics Corp. v.
Chinery, 330 F.3d 548, 559 (3d Cir. 2003) (“Statutory
construction is a holistic endeavor, and this is especially true
of the Bankruptcy Code.” (quotation marks, alterations and
citations omitted)).
14
natural reading of a provision remains elusive.”24 In that
case, and as a last resort, we turn to pre-Code practice and
legislative history to find meaning.25 \
A.
Section 1113 of the Bankruptcy Code governs the
means by which a debtor may assume, reject, or modify a
CBA. It establishes an expedited negotiation process for
modifying a CBA and allows for judicial evaluation of a
petition to reject a CBA if negotiations are unsuccessful.
Specifically, § 1113 provides that a debtor may “reject a
collective bargaining agreement” if the bankruptcy court
determines that (1) the debtor has “ma[de] a proposal” to its
employees “which provides for those necessary modifications
in the employees benefits and protections that are necessary
to permit the reorganization,” (2) “the authorized
representative of the employees has refused to accept such
proposal without good cause,” and (3) “the balance of the
equities clearly favors rejection of such agreement.”26
Section 1113 explicitly forbids debtors from “terminat[ing] or
alter[ing] any provisions of a collective bargaining agreement
prior to compliance with the provisions” of § 1113.27
The Union argues that the plain meaning of a
“collective bargaining agreement” is a “contract between an
employer and a labor union.” Therefore, because the CBA
has expired, there is no “contract” to be rejected under
§ 1113. The Union further contends that Debtors are required
24
Price, 370 F.3d at 369.
25
See id.
26
11 U.S.C. § 1113(a), (b)(1), (c).
27
Id. § 1113(f).
15
to bargain to impasse before making any changes to the key
terms and conditions of the expired CBA. The Union’s
position is based on the NLRA’s requirement that “[o]nce a
collective bargaining relationship has been established, an
employer may not make a change affecting [the] mandatory
bargaining subjects without affording the Union the
opportunity to bargain over the change.”28 Even when a CBA
expires, the employer must maintain the status quo with
respect to mandatory subjects of bargaining until it either
enters into a new contract or bargains to impasse.29
While § 1113 prescribes a process for rejection of a
“collective bargaining agreement,” it does not mention the
continuing obligations imposed by the NLRA. However,
neither does it restrict its prescription to “executory” or
“unexpired” CBAs.30 Following the lead of the Supreme
Court to take a broad, contextual view of the Bankruptcy
28
Champion Parts Rebuilders, Inc. v. NLRB, 717 F.2d 845,
852 (3d Cir. 1983) (citing Katz, 369 U.S. at 743)); see 29
U.S.C. § 158(a)(5) (providing that it “shall be an unfair labor
practice for an employer” to “refuse to bargain collectively
with the representatives of [its] employees”); id. § 158(d)
(defining the employer’s duty to bargain as part of a mutual
duty between the employer and the union to “meet . . . and
confer in good faith with respect to wages, hours, and other
terms and conditions of employment”).
29
See Litton, 501 U.S. at 199; Citizens Publ’g & Printing Co.
v. NLRB, 263 F.3d 224, 233 (3d Cir. 2001).
30
Cf. 11 U.S.C. § 365. Section 365 permits unilateral
rejection of any executory contracts or unexpired leases
burdensome to the estate. See Sharon Steel Corp. v. Nat’l
Fuel Gas Distrib. Corp., 872 F.2d 36, 39 (3d Cir. 1989).
16
Code, we will not embark, as the parties do, on a hyper-
technical parsing of the words and phrases that comprise §
1113,31 or focus on a meaning that may seem plain when
considered in isolation. We will turn instead to the situation
in which § 1113 was enacted and examine the provision in the
context of the Bankruptcy Code as a whole.32
B.
Section 1113 was a product of the organized labor
movement’s push to overturn the Supreme Court’s decision in
31
The Union argues that we should attach significance to the
textual contrast between § 1113(e), which allows for
emergency interim relief “when the collective bargaining
agreement continues in effect,” and § 1113(c). The Union
also contends that the word “terminate” within the context of
§ 1113(d)(2) suggests that there must be an unexpired CBA
that can be “terminated.”
32
In re Price, 370 F.3d at 369 (“Statutory context can suggest
the natural reading of a provision that in isolation might yield
contestable interpretations.”); see King, 135 S. Ct. at 2495)
(“But while the meaning of the phrase . . . may seem plain
‘when viewed in isolation,’ such a reading turns out to be
‘untenable in light of [the statute] as a whole.’ . . . In this
instance, the context and structure of the [statute] compel us
to depart from what would otherwise be the most natural
reading of the pertinent statutory phrase.” (citation omitted));
Kelly v. Robinson, 479 U.S. 36, 43 (1986) (“In expounding a
statute, we must not be guided by a single sentence or
member of a sentence, but look to the provisions of the whole
law, and to its object and policy.”’ (quotation marks
omitted)).
17
National Labor Relations Board v. Bildisco & Bildisco.33
There, the Supreme Court addressed what standard governed
rejection of CBAs in bankruptcy. The Court first held that
CBAs were “executory contracts” under § 365 of the
Bankruptcy Code, and could therefore be rejected under §
365 if the debtor showed that they “burden[ed] the estate, and
. . . the equities balance[d] in favor of rejecting the labor
contract[s].”34 In recognizing national labor policy, the Court
included a bargaining component in the process of rejection,
requiring an employer to make reasonable efforts to negotiate
a voluntary modification of the CBA before acting on a
33
465 U.S. 513 (1984); see 130 Cong. Rec. 20,092 (1984)
(statement of Sen. Kennedy) (stating that the intent of the new
law is “to overturn the Bildisco decision which had given the
trustee all but unlimited discretionary power to repudiate
labor contracts and to substitute a rule of law that encourages
the parties to solve their mutual problems through the
collective bargaining process”); id. at 20,091 (statement of
Sen. Packwood) (stating that “the agreement reached by the
Conferees on the labor provisions in the bill brings to an end
the effort to assure that labor contracts, which are negotiated
in good faith, are properly protected”); see also Wheeling-
Pittsburgh Steel Corp. v. United Steelworkers of Am., AFL-
CIO-CLC, 791 F.2d 1074, 1086 (3d Cir. 1986) (“[While we]
are aware . . . that the most authoritative source of legislative
intent lies in committee reports . . . [, here] there was no
committee report, and we must seek guidance from the
sequence of events leading to adoption of the final version of
the bill, and the statements on the House and Senate floor of
the legislators most involved in its drafting.” (citation
omitted)).
34
Bildisco, 465 U.S. at 526.
18
petition to modify or reject a CBA.35 This first holding of
Bildisco – establishing the standard for rejecting a CBA – was
unanimous.
The Court then addressed whether the debtor’s
noncompliance with the CBA after filing for bankruptcy but
before contract rejection constituted an unfair labor practice.
Justice Rehnquist, writing for the majority, found that “from
the filing of a petition in bankruptcy until formal acceptance,
the [CBA] is not an enforceable contract within the meaning
of NLRA § 8(d).” Thus, it was not an unfair labor practice
for an employer to unilaterally change the terms of a CBA
after filing for bankruptcy but before the court approved
rejection.36 Justice Rehnquist reasoned that the trustee was
“empowered by virtue of the Bankruptcy Code to deal with
its contracts and property in a manner it could not have
employed absent a bankruptcy filing.”37 A rule, requiring
trustees to adhere to a CBA’s terms after filing, “would run
directly counter to the express provisions of the Bankruptcy
Code and to the Code’s overall effort to give the debtor-in-
possession some flexibility and breathing space.”38 He noted:
35
Id.
36
Id. 529-33 (“Since the filing of a petition in bankruptcy
under Chapter 11 makes the contract unenforceable, § 8(d)
procedures have no application to the employer’s unilateral
rejection of an already unenforceable contract. . . . Our
rejection of the need for full compliance with § 8(d)
procedures of necessity means that any corresponding duty to
bargain to impasse under § 8(a)(5) and § 8(d) before seeking
rejection must also be subordinated to the exigencies of
bankruptcy.”).
37
Id. at 528.
38
Id. at 532.
19
The fundamental purpose of reorganization is to
prevent a debtor from going into liquidation,
with an attendant loss of jobs and possible
misuse of economic resources. . . . [A]
beneficial recapitalization could be jeopardized
if the debtor-in-possession were saddled
automatically with the debtor’s prior collective-
bargaining agreement. Thus, the authority to
reject an executory contract is vital to the basic
purpose to a Chapter 11 reorganization, because
rejection can release the debtor’s estate from
burdensome obligations that can impede a
successful reorganization.39
In response to Bildisco, Congress swiftly40 passed §
1113 to overturn the second part of Bildisco’s holding and
39
Id. at 528.
40
See Rosalind Rosenberg, Bankruptcy and the Collective
Bargaining Agreement – A Brief Lesson in the Use of the
Constitutional System of Checks and Balances, 58 Am.
Bankr. L.J. 293, 313 (1984) (“On the same day Bildisco was
decided, Congressman Rodino introduced H.R. 4908 to
clarify the circumstances under which collective bargaining
agreements may be rejected.” (footnotes and quotation marks
omitted)); 130 Cong. Rec. 6191 (statement of Rep. Hyde)
(describing the House as taking action with “mind boggling
speed”); 130 Cong. Rec. 13,205 (statement of Sen. Denton)
(stating that “[i]t is notable that the Bildisco provision was
introduced only 2 days before it was taken up on the floor,
was never considered by the House Judiciary Committee in
hearings or committee markups, and was brought to the
20
prohibit unilateral changes in debtors’ CBAs without
bankruptcy court approval.41 In crafting the stringent
requirements of § 1113, Congress was focused on preventing
employers from terminating negotiated labor contracts and
avoiding burdensome obligations to employees merely by
entering bankruptcy.42
As enacted, § 1113 balances the concerns of
economically-stressed debtors in avoiding liquidation and the
unions’ goals of preserving labor agreements and maintaining
House floor under a rule that did not permit the House to vote
on it separately from the bankruptcy bill.”).
41
See 11 U.S.C. § 1113(f).
42
In re Roth Am., Inc., 975 F.2d 949, 956 (3d Cir. 1992); see
In re Maxwell Newspapers, Inc., 981 F.2d 85, 89 (2d Cir.
1992) (“[Section] 1113 also imposes requirements on the
debtor to prevent it from using bankruptcy as a judicial
hammer to break the union.”); In re Century Brass Prods.,
Inc., 795 F.2d 265, 272 (2d Cir. 1986) (“[Section 1113]
created an expedited form of collective bargaining with
several safeguards designed to insure that employers did not
use Chapter 11 as medicine to rid themselves of corporate
indigestion.”); Sullivan Motor Delivery, Inc., 56 B.R. at 30
(“The elaborate procedure established under § 1113 is a
conscious effort by Congress to slow down the potential for
an avalanche of attempted rejections of [CBAs] by debtor
employers.”); 130 Cong. Rec. 20,092 (1984) (statement of
Sen. Packwood) (noting that “the debtor will not be able to
exploit the bankruptcy procedure to rid itself of unwanted
features of the labor agreement that have no relation to its
financial condition and its reorganization and which earlier
were agreed to by the debtor”).
21
influence in the reorganization process. Unlike § 365, which
does not constrain a debtor’s rejection of burdensome
executory contracts, § 1113 prescribes strict procedural and
substantive requirements before a CBA can be rejected.
Specifically, before the bankruptcy court will consider an
application to reject, the debtor must make a proposal,
provide relevant information, meet at reasonable times, and
confer in good faith. The debtor’s modifications must be
“necessary” to permit reorganization and must treat all
creditors, the debtor, and all affected parties “fairly and
equitably.” The balance of equities must “clearly favor”
rejection of the CBA. The language of § 1113 was designed
to foreclose all but the essential modifications of the working
conditions integral to a successful reorganization.43 In other
words, by requiring compliance with the stringent provisions
of § 1113, Congress sought to ensure that, when the NLRA
yields to the Bankruptcy Code, it does so only for reasons that
will permit the debtor to stay in business.44
This case exemplifies the process that Congress
intended. Rejection of the Debtors’ continuing labor
obligations, as defined by the expired CBA, is necessary to
permit the Debtors’ reorganization – indeed it is essential to
43
See Wheeling-Pittsburgh Steel Corp., 791 F.2d at 1088.
44
See 130 Cong. Rec. 20,231 (1984) (statement of Rep.
Morrison) (“[T]he conference report strikes the necessary
balance between the threat to companies in risk of being
liquidated because of financial problems and the possibility of
abuse of chapter 11 bankruptcy proceedings merely to vitiate
union contracts”); id. at 20,232 (statement of Rep. Morrison)
(“[A] chapter 11 reorganization case that is brought for the
sole purpose or [sic] repudiating or modifying a [CBA] is a
case brought in ‘bad faith.’”).
22
the Debtors’ survival. As the Bankruptcy Court repeatedly
emphasized, the Debtors’ “financial situation is desperate.
Not only are their losses large, but they have been unable to
obtain debtor in possession financing for their bankruptcy
cases and are operating with cash collateral. Debtors’ cash
will run out in less than two months.”45 The Debtors’ expert,
whom the Bankruptcy Court found “highly credible,” testified
that the
Debtors must have relief from the CBA without
which they can not avoid closing the Casino
and liquidating their businesses. . . . [T]he
situation is so grim that without the Court
granting the Motion and Debtors obtaining
other concessions, Debtors would have to give
notice to the New Jersey Department of Gaming
Enforcement not later than October 20, 2014,
that Taj Mahal will close the Casino.46
The Debtors sold assets and closed one of their
casinos, the Trump Plaza Hotel and Casino, to raise cash and
reduce their obligations. As of September 5, 2014, the
Debtors’ working capital cash was approximately $12
million, and its secured debt was approximately $286 million.
Under the relevant terms of the CBA, however, the Debtors
were required to make more than $3.5 million per year in
pension contributions, and $10 to $12 million per year in
health and welfare contributions. After the CBA expired, the
Debtors were required to sustain those payments at the same
levels. To avoid liquidation, the Debtors moved to reject the
45
Trump Entm’t Resorts, Inc., 519 B.R. at 80.
46
Id.
23
CBA. Their § 1113 proposal to the Union included annual
savings of approximately $3.7 million per year in pension
contributions, $5.1 million in health and welfare
contributions, and $5.8 million in work rule changes,
including elimination of paid meal times. Instead of
negotiating with the Debtors, the Union stalled the bargaining
sessions, engaged in picketing, and attempted to harm the
Debtors’ business.47
Notably, the Debtors’ plan of reorganization is
contingent on rejection of the CBA, the obtaining of tax
relief, the conversion of the first lien secured creditor’s debt
to equity, and a capital infusion of $100 million from the first
lien secured creditor. The first lien secured creditor “has
made it clear that it will perform only if the CBA and tax
relief contingencies are achieved because the business will
not succeed without the relief.”48 A successful
reorganization, therefore, depends on the rejection of the
terms that the Debtors are required to maintain under the
NLRA.
The Union recognizes that the Debtors are bound by
the terms and conditions of the expired CBA by virtue of their
obligation to maintain the status quo. Nevertheless, the
Union argues that those obligations are “entirely distinct from
the parties’ voluntarily assumed contractual obligation to
honor their CBA prior to its expiration.” The Union relies on
Laborers Health & Welfare Trust Fund for Northern
California v. Advanced Lightweight Concrete Company.49
47
Id. at 81-82.
48
Id. at 83.
49
484 U.S. 539 (1988).
24
This case involved the withdrawal of an employer from a
multiemployer pension fund and the employer’s subsequent
failure to make payments to the fund as required by the
expired CBA. The trustee of the fund brought suit in federal
court to enforce the terms of the expired CBA. The Supreme
Court distinguished an employer’s obligation to make
contributions to such a pension fund pursuant to the terms of
a CBA from an employer’s continuing obligation under the
NLRA to make post-expiration contributions. The Court held
that, because an employer’s contractual duty to make
multiemployer pension fund contributions does not survive
the CBA’s expiration, the employer’s failure to make post-
expiration contributions does not constitute a violation of §
515 of ERISA.50 The Court concluded that § 515 was
intended to cover only obligations arising under the CBA. To
seek contributions from an employer after the expiration of
the CBA, the trustee would have to go before the NLRB to
obtain a remedy in a proceeding before that body; the district
court did not have jurisdiction to hear the claim.
The Court in Laborers Health found Congress’s intent
in enacting § 515 was clear.51 The Court added that there
were three countervailing policy arguments to support its
decision that the reach of § 515 was deliberate rather than
inadvertent. First, if there is a gap in the enforcement scheme
to enforce contributions to multiemployer funds, its incidence
50
Section 515 was enacted to protect multiemployer funds
and the other employers participating in them from the
withdrawal of an employer from the fund. It obligates
employers, even after withdrawal, to make contributions
under the terms of a plan or of a CBA. 29 U.S.C. § 1145.
51
Laborers Health, 484 U.S. at 551.
25
is unknown and, since it has not been called to the attention of
Congress, “it may not be a problem of serious magnitude.”52
Second, the issues to be decided in a dispute over an
employer’s failure to make fund contributions are more
complex when the refusal is post-CBA rather than a simple
collection action during the life of the CBA.53 Third, a
violation of the duty to bargain in good faith is a labor law
matter and is better decided by the NLRB than by a district
court.54
Conversely, we find the intent of Congress here also to
be clear but that intent was to incorporate expired CBAs in
the language of § 1113. Our review of the decision in
Laborers Health demonstrates to us that the three
countervailing policy arguments in Laborers Health support
our decision here. As we noted above, § 1113 was enacted to
balance the needs of economically-stressed debtors in
avoiding liquidation and the unions’ needs in preserving labor
agreements and safeguarding employment for their members.
Section 1113 meets a gap in the schemes to permit
reorganizations when labor obligations will prevent the
success of a reorganization. The number of cases cited in
footnote 20 supra demonstrate this gap. Section 1113 was
enacted to ensure that relief from a CBA was granted only in
situations where relief was necessary to permit the
reorganization. It is a counter to the precedent in Bildisco
which permitted modification of a CBA without close
scrutiny by the Bankruptcy Court. Under § 1113, approval
will be granted only if the debtor’s modifications are
52
Id..
53
Id. at 551-52.
54
Id. at 552.
26
necessary to permit reorganization. In this context, when the
employer’s statutory obligations to maintain the status quo
under the terms of an expired CBA will undermine the
debtor’s ability to reorganize and remain in business, it is the
expertise of the Bankruptcy Court which is needed rather than
that of the NLRB. For that reason, whether the CBA is in
effect or is expired, it is the Bankruptcy Court which should
make the review and decide on the necessity of the
modification. We conclude, therefore, that § 1113 applies to
a CBA after it has expired.
The Union contends, however, that because a debtor
may not assume or reject an expired executory contract under
§ 365, it may not reject an expired CBA under § 1113. This
argument ignores an important distinction between a CBA
and any other executory contract: the key terms and
conditions of a CBA continue to burden the debtor after the
agreement’s expiration. Rejection of those terms, therefore,
is not a moot issue as would be in the case of other contracts
or leases.
C.
To hold that a debtor may reject an expired CBA or its
continuing obligations as defined by the expired CBA is also
consistent with the purpose of the Bankruptcy Code, which
gives debtors latitude to restructure their affairs.55 A Chapter
55
See Perez v. Campbell, 402 U.S. 637, 648 (1971) (“This
Court on numerous occasions has stated that ‘(o)ne of the
primary purposes of the Bankruptcy Act’ is to give debtors ‘a
new opportunity in life and a clear field for future effort,
unhampered by the pressure and discouragement of pre-
27
11 reorganization provides a debtor with an opportunity to
reduce or extend its debts so its business can achieve long-
term viability, for instance, by generating profits which will
compensate creditors for some or all of any losses resulting
from the bankruptcy. Congress has recognized that “[i]t is
more economically efficient to reorganize rather than to
liquidate, because it preserves jobs and assets.”56 Similarly,
we have held that “[t]he policy behind Chapter 11 of the
Bankruptcy Code is the ‘ultimate rehabilitation of the
debtor.’”57 As the Bankruptcy Court recognized, “[i]n many
cases, time is the enemy of a successful restructuring” and the
§ 1113 rejection process is a “much quicker process than the
relatively protracted process contemplated by the NLRA.”58
Section 1113 furthers the Code’s rehabilitative policies
by permitting debtors to restructure their labor obligations. A
existing debt.’” (quoting Local Loan Co. v. Hunt, 292 U.S.
234, 244 (1934))).
56
H.R. Rep. No. 95-595, at 220 (1977) (stating that the
premise of business reorganization is that a company’s assets
are worth more as a going concern than if sold for scrap); see
130 Cong. Rec. 20,230 (1984) (statement of Rep. Lungren,
discussing § 1113) (“This is an important provision in the
compromise because it underscores the primary purpose of
chapter 11; that is, to maintain the debtor’s business so that
both the debtor and his employees can keep their jobs. . . .
[T]his chapter 11 allows a company to reorganize rather than
going belly-up. In essence, it is the best way to protect the
jobs of the workers of the company as then constituted.”).
57
In re Exide Techs., 607 F.3d 957, 962 (3d Cir. 2010)
(quoting Nicholas v. United States, 384 U.S. 678, 687 (1966).
58
Trump Entm’t Resorts, 519 B.R. at 86.
28
contrary holding, i.e., that § 1113 does not allow a debtor to
reject expired CBAs or its ongoing obligations, would impede
that overriding goal.59 Whether by force of contract or by
operation of the NLRA, the Debtors here were bound by the
key terms of the expired CBA. But those terms burdened the
estate so as to preclude a successful reorganization. Just
because the Debtors filed the § 1113 motion one week after
the CBA expired, they should not be bound by the expired
agreement’s burdensome terms until the parties negotiate to
impasse. That interpretation of the statute would undercut the
rehabilitative function of Chapter 11.60
59
See 130 Cong. Rec. 20,230 (1984) (statement of Rep.
Lungren) (noting that “[a]ny labor provision which would
subordinate the debtor’s reorganization to a union contract . . .
would impinge on the goals of the 1978 Bankruptcy Reform
Act and indeed on the principal reasons for a bankruptcy
procedure”); id. at 20,231 (statement of Rep. Hall) (asking
whether “the court in balancing equities would include the
union contract – and any other matters that might make it
detrimental to the debtor for the contract to remain in force”
(emphasis added)).
60
See King, 135 S. Ct. 2492-93 (citing N.Y. State Dep’t of
Soc. Servs. v. Dublino, 413 U.S. 405, 419-20 (1973) (“We
cannot interpret federal statutes to negate their own stated
purposes.”)); SEC v. C.M. Joiner Leasing Corp., 320 U.S.
344, 350-51 (1943) (“[C]ourts will construe the details of an
act in conformity with its dominating general purpose, will
read text in the light of context and will interpret the text so
far as the meaning of the words fairly permit so as to carry
out in particular cases the generally expressed legislative
policy.”).
29
Under the policies of bankruptcy law, it is preferable
to preserve jobs through a rejection of a CBA, as opposed to
losing the positions permanently by requiring the debtor to
comply with the continuing obligations set out by the CBA.
Moreover, it is essential that the Bankruptcy Court be
afforded the opportunity to evaluate those conditions that can
detrimentally affect the life of a debtor, whether such
encumbrances attach by operation of contract or a complex
statutory framework. In light of Chapter 11’s overarching
purposes and the exigencies that the Debtors faced, we
conclude that the Bankruptcy Court did not err in granting the
Debtors’ motion.
IV.
For the reasons set forth above, we will affirm the
judgment of the Bankruptcy Court.
30