Resilient Floor Covering Pension Trust Fund Board of Trustees v. Michael's Floor Covering, Inc.

FILED
NOT FOR PUBLICATION
DEC 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESILIENT FLOOR COVERING No. 16-16749
PENSION TRUST FUND BOARD OF
TRUSTEES; RESILIENT FLOOR D.C. No. 3:11-cv-05200-JSC
COVERING PENSION TRUST FUND,

Plaintiffs-Appellants, MEMORANDUM*

v.

MICHAEL’S FLOOR COVERING,
INC.,

Defendant-Appellee.

Appeal from the United States District Court
for the Northern District of California
Jacqueline Scott Corley, Magistrate Judge, Presiding

Argued and Submitted December 5, 2017
San Francisco, California

Before: KOZINSKI and HURWITZ, Circuit Judges, and KEELEY,**
District Judge.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Irene M. Keeley, United States District Judge for the
Northern District of West Virginia, sitting by designation.
 page 2
1. The district court didn’t err in holding appellants must show that

Michael’s Floor Covering, Inc. (“MFC”) had notice of Studer’s Floor Covering

Inc.’s (“SFC”) withdrawal liability prior to becoming SFC’s successor to impose

withdrawal liability on MFC. See Resilient Floor Covering Pension Tr. Fund

Bd. of Trs. v. Michael’s Floor Covering, Inc., 801 F.3d 1079, 1084 (9th Cir. 2015).

2. In employment cases, “[t]he principle [sic] reason for the notice

requirement is to ensure fairness by guaranteeing that a successor had an

opportunity to protect against liability by negotiating a lower price or indemnity

clause.” Steinbach v. Hubbard, 51 F.3d 843, 847 (9th Cir. 1995). Appellants

argue that MFC had sufficient notice because it knew that some of SFC’s

employees were unionized and SFC contributed to a pension fund. Appellants also

claim that MFC had notice because a Resilient Floor Covering Pension Trust Fund

trustee told MFC’s owner that “if the pension was fully funded as of today, I would

go non-union the next day.” But this trustee was the owner of an entirely separate

business in a different city and there’s no evidence that he had any ownership stake

in MFC or SFC. These facts fail to show that MFC had notice of SFC’s

withdrawal liability or “had an opportunity to protect against [it.]” Id.

AFFIRMED.