DocketNumber： No. 96-5628
Citation Numbers： 133 F.3d 416, 21 Employee Benefits Cas. (BNA) 2249, 1998 U.S. App. LEXIS 203, 1998 WL 3315
Judges： Krupansky, Rosen, Suhrheinrich
Filed Date： 1/8/1998
Status： Precedential
Modified Date： 11/4/2024
ROSEN, J., delivered the opinion of the court, in which SUHRHEINRICH, J., joined. KRUPANSKY, J. (pp. 426-33), delivered a separate dissenting opinion.
This is an ERISA “breach of fiduciary” action brought by employees of North American Rayon Corporation (“NAR”) and their Union, the United Textile Workers of America, against members of the Board of Directors of North American Corporation (“NAC”), the parent company of NAR; members of the NAR Employee Stock Ownership Plan Administrative Committee (the “ESOP Committee”); and the ESOP Plan Trustee, First American National Bank.
For the reasons set forth below, we affirm the District Court’s ruling.
I. PERTINENT FACTS
This action centers around an Employee Stock Ownership Plan (an “ESOP”). An ESOP is an ERISA plan that invests primarily in “qualifying employer securities,” which typically are shares of stock in the employer that created the plan. See 29 U.S.C. § 1107(d)(6)(A).
The ESOP plan at issue was created in 1985. The Plan called for 85% of North American Rayon Corporation to be held by an ESOP Trust, with the remaining 15% of NAR stock going to management employees. In 1990, North American Corporation (“NAC”) was formed as a holding company for NAR and several related entities. With this change, NAC stock replaced the NAR stock as the stock held by the ESOP Trust. The shares of NAC held by the ESOP Trust are voted by the Trustee, First American National Bank, as directed by the ESOP Administrative Committee. This includes voting for members of the NAC Board of Directors at the company’s annual meeting.
Control and management of the operation and administration of the ESOP lies in the hands of the three-member ESOP Administrative Committee which is appointed by the five-member NAC corporate Board of Directors. One of the three ESOP Committee appointees is recommended to the Board of Directors by the Union.
Defendants Charles Green and Tony Butts currently are, and at all times relevant to this action were, members of the ESOP Administrative Committee.
The four defendants who are members of the NAC Board of Directors — Green, Butts, Andersen, and Henry — have been re-elected to the Board without opposition every year at the NAC annual meeting since 1990 and, until this action was filed after a bitter two-month long labor strike at NAR in 1994, the re-election of the four Defendants was without controversy.
The ESOP was originally created in 1985 as a result of collective bargaining between NAR and the UTWA, and appears to have been, since its creation, a topic of regular labor contract negotiations. In 1991, NAR ESOP employee-participants began regularly attempting, without success, to have the terms of the ESOP amended to allow “pass-through voting”, whereby each plan participant would instruct the ESOP Administrative Committee as to the manner in which shares of company stock allocated to that participant’s ESOP account would be voted.
Most recently, “pass through voting” was an issue in labor negotiations at NAR/NAC in 1994. In 1994, NAR employees were working under a collective bargaining agreement that expired October 4, 1994. During negotiations for a new agreement in September 1994, the Union offered to present in a positive light NAR’s economic contract offer to the Union membership if NAR and NAC would agree to amend the ESOP to allow for “pass through voting”. NAC labor negotiator Andersen presented this proposal to the NAC Board of Directors, but all five members of the NAC Board, including the employee-nominated Union member, Raymond Broyles, unanimously rejected the proposal. The Board members stated that the proposal was rejected because they believed that NAC’s lenders would not agree'to this proposal. After this “pass through voting” proposal was rejected, a bitter two-month long strike ensued. When after two months the strike did not change the company’s position about “pass through voting”, the UTWA unilaterally called off the strike' and this lawsuit was filed.
II. ISSUES PRESENTED
This action focuses upon the roles of Defendants Green, Butts, and Andersen as members of the ESOP Administrative Committee and the NAC Board of Directors. As indicated, Green, Butts and Andersen are all members of the NAC Board of Directors. Green and Butts are also members of the ESOP Committee. Specifically, Plaintiffs complain that the NAC Board of Directors’ appointment of the ESOP Committee and the ESOP Committee’s directing the vote for the NAC Board constitutes a breach of ERISA-mandated fiduciary duties to the ESOP and its participants and beneficiaries by both the NAC Board and its individual members. Underlying this complaint is the Board of Directors’ refusal to accept the UTWA’s contract proposal for the amendment of the ESOP Plan to provide for pass-through voting.
Section 1104(a) provides, in pertinent part:
(a) Prudent man standard of care
(1) ... [A] fiduciary shall discharge his duties with respect to a plan solely in the interest of the participants and beneficiaries and—
(A) for the exclusive purpose of:
(i) providing benefits to participants and their beneficiaries; and
(ii) defraying reasonable expenses of administering the plan;
(B) with the care, skill, prudence, and diligence under the circumstances then prevailing that a prudent man acting in a like capacity and familiar with such matters would use in the conduct of an enterprise of a like character and with like aims; [and]
* * *
(D) in accordance with the documents and instruments governing the plan insofar as such documents and instruments are consistent with the provisions of this subehapter or subchapter III of this chapter.
29 U.S.C. § 1104(a)(1)(A), (B), and (D).
Section 1106(b) provides:
Prohibited transactions
* * *
(b) Transactions between plan and fiduciary
A fiduciary with respect to a plan shall not—
(1) deal with the assets of the plan in his owm interest of for his own account, [or]
(2) in his individual or any other capacity act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries____
29 U.S.C. § 1106(b).
Plaintiffs allege in their Complaint that the right to vote the NAC ESOP Plan’s shares constitutes an “asset” of the ESOP, and the exercise of that right to maintain one’s position as a member of the ESOP Administrative Committee and as a member of the NAC Board of Directors violates ERISA fiduciary duties. [See Plaintiffs’ Complaint, ¶ 51.] Plaintiffs contend that Defendants Green and Butts breached their ERISA fiduciary duties to discharge their obligations with respect to the ESOP Plan solely in the interest of the Plan participants and beneficiaries, and that they engaged in prohibited self-dealing by using their authority as members of the ESOP Administrative Committee to instruct Defendant First American National Bank, the Plan Trustee, to vote the 85% of the NAC stock held by the ESOP to elect Green, Butts and Andersen as members of the NAC Board of Directors.
Thus, as the District Court noted, whether or not Plaintiffs have stated an ERISA claim in this case turns, as an initial matter, on whether “stock voting rights ” constitute an ERISA “plan asset”. More specifically, the issue is whether the right to vote ESOP shares in a regular annual election of the corporate board of directors for the purpose of electing plan fiduciaries to the corporate board constitutes a “plan asset” within the meaning of ERISA
A secondary issue presented is whether, when acting in their capacity as members of the NAC board of directors, the Defendant ESOP Committee members violated their ERISA fiduciary duties under Section 1104 in voting against the pass-through voting proposal.
A. STANDARD OF REVIEW
The standard of review applicable to motions for “judgment on the pleadings” under Fed. R. Civ. Pro. 12(c) is the same de novo standard applicable to motions to dismiss under Rule 12(b)(6). Scheid v. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 n. 1 (6th Cir.1988). A motion to dismiss under Fed. R. Civ. Pro. 12(b)(6) requires the Court to construe the complaint in the light most favorable to the plaintiff, accept all of the complaint’s factual allegations as true, and determine whether the plaintiff undoubtedly can prove no set of facts in support of the claims that would entitle relief. Meador v. Cabinet for Human Resources, 902 F.2d 474, 475 (6th Cir.1990), cert. denied, 498 U.S. 867, 111 S.Ct. 182, 112 L.Ed.2d 145 (1990).
However, the Court need not accept as true legal conclusions or unwarranted factual inferences. Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). See also, Blackburn v. Fisk University, 443 F.2d 121, 124 (6th Cir.1971) (the court is “required to accept only well-pleaded facts as true, not the legal conclusions that may be alleged or that may be drawn from the pleaded facts.”)
B. THE RIGHT TO VOTE THE ESOP PLAN’S SHARES DOES NOT CONSTITUTE AN ERISA “PLAN ASSET”
The starting point of our analysis is that Congress specifically recognized and approved of corporate managers also serving as ESOP fiduciaries. Section 1108(c) of ERISA specifically provides:
(c) Fiduciary benefits and compensation prohibited by section 1106
Nothing in section 1106 of this title shall be construed to prohibit any fiduciary from—
* * *
(3) serving as a fiduciary in addition to being an officer, employee, agent or other representative of a party in interest.
29 U.S.C. § 1108(c)(3).
As the Third Circuit observed in Moench v. Robertson, 62 F.3d 553 (3rd Cir.1995), the reason for exempting ESOPs from ERISA’s strict prohibitions against self-dealing arises out of the distinctive dual nature and purpose of ESOPs as both a retirement plan and a means of corporate finance. The court explained:
[U]nlike the traditional pension plan governed by ERISA, ESOP assets generally are invested in securities issued by the plan’s sponsoring company. In keeping with this, ESOPs, unlike pension plans, are not intended to guarantee retirement benefits, and indeed, by its very nature an ESOP places employee retirement assets at much greater risk than does the typical diversified ERISA plan....
Rather, ESOPs serve other purposes. Under their original rationale, ESOPs were described as devices for expanding the national capital base among employees — an effective merger of the roles of capitalist and worker. Thus, the concept of employee ownership constituted a goal in and of itself. To accomplish this end, Congress enacted a number of laws designed to encourage employers to set up such plans. The Tax Reform Act of 1976 was one of those statutes, and in passing it, Congress explicitly stated its concern that courts should refrain from erecting barriers that would interfere with that goal:
The Congress is deeply concerned that the objectives sought by [the series of laws encouraging ESOPs] will be made unattainable by regulations and rulings which treat employee stock ownership plans as conventional retirement plans, which reduce the freedom of the employee trusts and employers to take the necessary steps to implement the plans, and which otherwise block the establishment and success of these plans.
Tax Reform Act of 1976, Pub.L. No. 94-455, § 803(h), 90 Stat. 1590 (1976) (quoted in Donovan v. Cunningham, 716 F.2d [1455], 1466 n. 24 [(5th Cir.1983), cert. denied, 467 U.S. 1251, 104 S.Ct. 3533, 82 L.Ed.2d 839 (1984)])....
62 F.3d at 569 (citations omitted).
In Donovan v. Cunningham, supra, the Fifth Circuit explained the court’s task in
Congress has repeatedly expressed its intent to encourage the formation of ESOPs by passing legislation granting such plans favorable treatment, and has warned against judicial and administrative action that would thwart that goal. Competing with Congress’ expressed policy to foster the formation of ESOPs is the policy expressed in equally forceful terms of ERISA: that- of safeguarding the interests of participants in employee benefit plans by vigorously enforcing standards of fiduciary responsibility____ [The court’s] task in interpreting the statute is to balance these concerns so that competent fiduciaries will not be afraid to serve, but without giving unscrupulous ones a license to steal.
716 F.2d at 1466.
As indicated, Plaintiffs’ principal complaint in the instant action is that Defendants Green and Butts violated their ERISA fiduciary duties by directing the ESOP Plan trustee to vote for them in the regular annual election of the NAC board of directors and then, in turn, once elected to the board, by appointing themselves to the ESOP Administrative Committee.
Boiled to its essence, what Plaintiffs are alleging as a violation of ERISA is really a form of “management entrenchment” by which management controls employee pension assets. However, with respect to ESOP corporations, management “entrenchment” is actually the rule, rather than the exception. O’Toole, The Disproportionate Effects of an ESOP’s Proportional Voting, 85 NW. U.L.Rev. 824, 826. According to O’Toole, ESOP corporations’ boards of directors select the persons who manage and control the ESOP 90% of the time. Id. at 836, n. 76. O’Toole further states that 47% of ESOP corporations also had ESOP administrators who were also officers of the sponsoring corporation. Id.
As the District Court noted, not only has Congress specifically recognized and approved of corporate managers serving as ESOP fiduciaries, but also this practice is quite prevalent in the corporate sector. Thus,
The Court must assume [that] Congress ... realized as a practical matter that ESOP fiduciaries would have ties and loyalties to management. Congress would have known that in most cases management would appoint the ESOP fiduciary and then have some control over the fiduciary’s tenure. It can also be assumed that Congress was aware members of management would also serve as ESOP fiduciaries in many cases. Accordingly, we can ascribe to Congress the knowledge that ESOP fiduciaries would have ties to, and loyalty to management, and some self-interest would be inherent.
946 F.Supp. at 546.
Only two reported district court cases out of the Seventh Circuit address the issue of whether the right to vote an ESOP plan’s shares is a plan “asset”. In both O’Neill v. Davis, 721 F.Supp. 1013 (N.D.Ill.1989) and Newton v. Van Otterloo, 756 F.Supp. 1121 (N.D.Ind.1991), the courts, without any clear analysis, summarily treated the right to vote the ESOP shares as a plan asset and, having accepted that premise, determined that exercising the right constituted a fiduciary act implicating the fiduciary duties imposed under ERISA. However, these cases are distinguishable on an important point. Although both O’Neill and Newton concerned entrenched management (in both cases, most or all of the members of the corporate board of directors were also fiduciaries of the ESOP plans), the acts complained of in these cases involved more than merely electing directors in a regular annual shareholders’ election. The District Court in the instant case characterized this distinguishing feature as “entrenchment plus”.
O’Neill involved an effort to fire the plaintiff, who was a member of management and a plan participant, and deny him severance benefits. In that case, the plaintiff, Thomas O’Neill, was the chief executive officer and a director of Lester B. Knight and Associates, Inc., (“Knight”) and a participant in the com
On April 17, 1987, the Davis Group, without notice to O’Neill or a meeting of the board of directors or the shareholders, decided among themselves to vote the shares controlled by the ESOP to reconstitute the board of directors, and remove O’Neill from the Board and from his position as an ESOP trustee, and terminate his employment with the company.
Newton arose out of a proxy fight to manipulate the voting of ESOP. The case involved the South Bend Lathe corporation’s ESOP. SBL’s management comprised a majority of the ESOP Committee which was responsible for directing the ESOP trustee’s voting of shares. At the urging of SBL’s then president and board member, John Van Otterloo, who owned 18% of SBL’s outstanding stock, the “entrenched” majority of the ESOP Committee decided not to solicit proxies from SBL retirees in the 1989 annual shareholder election, and directed the Plan trustee not to vote those non-voting shares. The agenda for the 1989 shareholders’ meeting included consideration of a proposed new slate of directors.
As a result of the decision not to solicit proxies from retirees and the instruction to the trustee not to vote those shares, 70% of the ESOP-held shares were not voted. The ESOP participants’ shares that were voted were not enough to overcome Van Otterloo’s own 5,000 shares to re-elect himself and the then incumbent slate to the Board of Directors.
Under the circumstances presented in these two cases, the courts found sufficient allegation of breach of fiduciary duty. However, the Newton court explicitly recognized that “[djual capacity and self-selection alone do not raise a claim for breach of fiduciary duty.” 756 F.Supp. at 1127, 1128.
By contrast, the voting of the ESOP shares in the instant case did not involve any control dispute among the board of directors; rather the elections of the NAC directors were nothing more than the normal, uncontested, “course of affairs” annual elections.
Although this Circuit has not specifically dealt with the issue of whether the mere right to vote an ESOP plan’s stock constitutes an ERISA plan asset, in Kuper v. Iovenko, 66 F.3d 1447 (6th Cir.1995), we did note that one key exception carved out by Congress for ESOPs with respect to ERISA is the fiduciary’s relief from the Act’s “strict prohibitions against self-dealing, that is ‘dealing with the assets of the plan in his own interest or for his own account.’” Id. at 1458, citing Martin v. Feilen, 965 F.2d 660, 665 (8th Cir.1992), cert. denied, 506 U.S. 1054, 113 S.Ct. 979, 122 L.Ed.2d 133 (1993).
Observing that the clear weight of case authority indicates that the focus of ERISA is a fiduciary’s duties regarding the investment of plan assets (see, e.g., Kuper, supra, 66 F.3d at 1457-60; Moench v. Robertson, 62 F.3d 553, 568-72 (3rd Cir.1995), cert. denied, 516 U.S. 1115, 116 S.Ct. 917, 133 L.Ed.2d 847 (1996); Ershick v. United Missouri Bank, 948 F.2d 660, 666-67 (10th Cir.1991); Leigh v. Engle, 727 F.2d 113, 124-36 (7th Cir.1984)), the District Court in the instant action determined that “[t]he investment of an asset implies the asset must have some sort of inherent value, be capable of the assignment of value, or otherwise be subject to market forces.”
The District Court further noted that ease authority also establishes that “purely business decisions by an ERISA employer are not governed by section 1104’s fiduciary standards.” 946 F.Supp. at 549. See generally, Kuper, supra, 66 F.3d at 1456. As such, “ERISA does not prohibit an employer from acting in accordance -with his interests as an employer when not administering the plan or investing the assets.” Hickman v. Tosco Carp., 840 F.2d 564, 566 (8th Cir.1988). In fact, in Hickman, the Eighth Circuit specifically observed that “day-to-day corporate business transactions, which may have a collateral effect on prospective, contingent em
Further, we have held that a company does not act in a fiduciary capacity when deciding to amend or terminate an ERISA benefits plan. Adams v. Avondale Industries, Inc., 905 F.2d 943, 947 (6th Cir.1990), cert. denied, 498 U.S. 984, 111 S.Ct. 517, 112 L.Ed.2d 529 (1990). See also, Bryant v. International Fruit Prod. Co., 886 F.2d 132, 134 (6th Cir.1989) (holding that plan trustees do not breach their fiduciary duty by failing to reverse a company’s decision to amend an ERISA plan); Musto v. American General Corp., 861 F.2d 897, 911 (6th Cir.1988), cert. denied, 490 U.S. 1020, 109 S.Ct. 1745, 104 L.Ed.2d 182 (1989) (deciding what a plan’s terms should be does not implicate a fiduciary duty).
Applying the foregoing authorities, the District Court concluded:
Considering that Congress specifically authorized members of management to serve as fiduciaries, the Court is unwilling, in the absence of specific direction from the appellate courts, to find a cause of action premised solely on fiduciaries either voting for themselves or directing a trustee to vote for them. The Court, in view of its interpretation of O’Neill and [Newton v.] Van Otterloo requires some allegation in the complaint implicating an abuse or breach of fiduciary duties other than establishing or maintaining a corporate structure clearly envisioned and authorized by Congress.
Since Count I of the complaint does not allege anything more than “corporate entrenchment”, and since Plaintiffs have not shown voting on ESOP’ Plan’s shares is a plan asset, the Court finds Count I does not state a claim for which relief can be given.
946 F.Supp. at 551.
The Department of Labor in its amicus brief urges us to hold that in all circumstances ESOP stock voting rights, as a matter of law, constitute an ERISA plan asset. We decline this invitation to so broad a declaration. Rather, we find the District Court’s focus on the purpose for which the voting right is exercised to be the more persuasive approach. Here, the ESOP administrative committee members exercised their voting rights simply to direct the Trustee how to vote in a regular annual election of the corporation’s board of directors. That they did this to elect themselves to the board is irrelevant since ERISA specifically anticipates and authorizes the “dual role” of directors and plan fiduciaries in the ESOP context. The plain language of § 1108(c)(3) makes clear that Congress intended that small companies ought to be able to have managers run their ESOPs and vice-versa. Moreover, unlike the “secret” board of directors vote in O’Neill or the intentional proxy manipulation to preclude consideration of a new slate of directors in Newton, the slate in the NAC election was unopposed and the vote of the committee to direct the Trustee to vote for the slate was unanimous. In fact, Plaintiff Grindstaff also voted to direct the Trustee to elect the Defendants to the board.
In the final analysis, this dispute was more about corporate control than about the value of retirement funds or plan assets and the fiduciaries’ handling of these matters. The dispute began as a contract dispute over “pass through voting” in the context of labor-management negotiations and blossomed into pension rights litigation only after the employees were unable to prevail on their position at the bargaining table. The fact that stock voting rights may, in some way, ultimately implicate the management of plan assets and their value does not automatically mean that stock voting rights are a plan asset. Given the hybrid nature of ESOPs and the inherent tensions between partial employee ownership of a corporation through its stock and management of the corporation in its day-to-day affairs by management per
For these reasons, the District Court’s dismissal of Plaintiffs’ claims concerning the exercise of stock voting rights in Counts I, III, V, VI and VII is affirmed.
C. DISMISSAL OF PLAINTIFFS’ CLAIMS CONCERNING THE REJECTION OF PASS THROUGH VOTING SHOULD ALSO BE AFFIRMED
Plaintiffs also argue that the ESOP Committee members (who constitute the majority of the NAC Board of Directors) are in violation of the ERISA fiduciary duties with respect to the ESOP in voting, in their capacity as members of the corporate Board of Directors, to reject the union’s pass-through voting proposal. Plaintiffs argue that the Defendants would not agree to pass-through voting because that would result in their ultimate removal from office by the ESOP participants voting their own shares.
In our view, this is simply a re-easting of the Plaintiffs’ “stock-voting-rights-equals-plan-assets” argument taken to its next consequent step, i.e., the result of the Defendants’ exercise of their stock voting rights was the rejection of pass-through voting in their capacity as re-elected Directors. Here, however, there is an additional element: Adoption of passthrough voting would effectively amend the existing ESOP plan in that the Plan itself defines voting rights. We have consistently held that a company does not act in a 'fiduciary capacity when deciding whether to amend or terminate an ERISA benefits plan. Adams, supra; Bryant, supra; Musto, supra.
These cases make clear that ERISA fiduciary duties are not implicated when deciding what a plan’s terms, including voting rights, should be. Pass-through voting was a proposal to change the terms of the ESOP Plan. Moreover, “the tasks of administration [of an ERISA plan] do not extend to negotiating terms of the collective bargaining agreement.” See United Ind. Flight Officers v. United Air Lines, 756 F.2d 1262 (7th Cir.1985). See also, Lea v. Republic Airlines, 903 F.2d 624 (9th Cir.1990). And, as noted, the proposal for pass-through voting was made during negotiations over a collective bargaining agreement.
■ Accordingly, the District Court correctly found that Plaintiffs’ failed to state a claim with respect to the pass-through voting proposal. Therefore, the District Court’s dismissal of Plaintiffs claims in Counts IV, V, VI, and VII concerning this issue is also affirmed.
D. PLAINTIFFS’ CLAIM AGAINST THE ESOP TRUSTEE, FIRST AMERICAN NATIONAL BANK WAS PROPERLY DISMISSED
Plaintiffs seek to ascribe to Defendant First National Bank, the directed ESOP trustee, a duty to investigate the merits of any directives given to it by the ESOP Ad
For these reasons, we find that the District Court correctly determined that Plaintiffs’ claim that the Bank breached a fiduciary duty to investigate was without legal merit.
CONCLUSION
For all of the foregoing reasons, the Dis- . trict Court’s decision is AFFIRMED in all respects.
.The NAC Board of Directors consists of five directors, however, only four of the five directors are named as Defendants. Similarly, the NAR ESOP Committee consists of three members. Plaintiffs are suing only two of the three Committee members.
. After dismissing all of the federal claims, the court declined to exercise supplemental jurisdiction over Plaintiffs’ one state law claim, and therefore, dismissed that claim, as well. 946 F.Supp. at 555.
. The Union-recommended third member of the ESOP Committee is Plaintiff Karl Grindstaff. At all times relevant in this action, Grindstaff was also a Union officer.
. As indicated. Defendants Green, Butts and Andersen also are Directors of NAR. The other two members of the NAR Board of Directors — Dr. Niles Schening and Dr. Glenn Yago — are not being sued in this action.
. In May of 1991, a lawsuit over the “pass through voting” issue was filed in the United States District Court for the Eastern District of Tennessee. In that action filed by the United Textile Workers, the union representing NAR/ NAC employees, the plaintiffs sought a special meeting of the stockholders for the purpose of directing the NAC Board of Directors to amend the ESOP Plan to provide for pass through voting. At the time, NAC had a three-member Board of Directors. Two of the three members were the company's president Charles Green and vice-president, Tony Butts. The third member was an "outside” director, John Anderson. The lawsuit was settled in August 1991 with a settlement agreement under which NAC agreed to add two additional "outside”,-i.e., non-mánagement, members to the Board, one of whom was to be elected by NAC employees. Thus, under this arrangement, voting control of the Board was no longer exclusively in the hands of NAC’s management.
Plaintiffs do not dispute that NAC has complied with the "letter” of the settlement agreement, but they contend that Defendants have not complied with the "spirit” of the agreement because they claim that the two non-outside directors are friends of management and, hence, not impartial.
. The Court notes that not only did the Defendant Board members vote against the pass-through voting proposal, but also, the union-recommended Board member, Raymond Broyles voted against it, as well.
. Furthermore, the record indicates that the Directors voted to reject pass-through voting because they were advised that the company’s lenders would not agree to the proposal. As noted above, such business-related decisions are not governed by ERISA’s fiduciary standards. Kuper v. Ioveriko, supra.
Indeed, the Department of Labor concedes that Defendants’ rejection of the union’s pass-through voting proposal was a business decision and Plaintiffs’ allegations relating to that decision do not state a legally cognizable ERISA breach of fiduciary duty claim. [See Department of Labor Amicus Brief, pp. 16-17.]
. While this matter was pending before this court, by stipulation of the parties, First American National Bank was dismissed as an appellee on appeal.