NOT FOR PUBLICATION FILED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 An arbitrator found that Quad had not withdrawn,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).

1 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.

2 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.

3 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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