Joseph P. CONNORS, Sr., et al., Appellants,
v.
LINK COAL COMPANY, INC., et al.
Joseph P. CONNORS, Sr., et al., Appellants,
v.
ISLAND CREEK CORPORATION, et al.
Joseph P. CONNORS, Sr., as Trustee of the United Mine
Workers of America 1950 Pension Trust, et al., Appellants,
v.
DRUMMOND COAL CO., et al.
Nos. 91-7051, 91-7052 and 91-7059.
United States Court of Appeals,
District of Columbia Circuit.
Argued May 1, 1992.
Decided July 24, 1992.
Rehearing and Rehearing En Banc Denied
in No. 91-7051 Sept. 14, 1992.
Appeals from the United States District Court for the District of Columbia (Civil Actions 90-01347, 87-01210, 87-01973).
Julia Penny Clark, with whom Jeremiah A. Collins, Susan D. Carle, and David W. Allen, Washington, D.C., were on the brief, [
Robert C. Bell, Washington, D.C., for appellees. Jonathan D. Schiller, William A. Isaacson, Raymond Paretzky, Washington, D.C., Michael J. Farrell and Barry M. Taylor, Huntington, W.Va., were on the brief for appellees, Island Creek Corp., et al. in Nos. 91-7051 and 91-7059. Thomas P. Gies, Washington, D.C., also entered an appearance, for appellees.
John R. Mooney, with whom Paul A. Green, Robert H. Stropp, Jr. and Earl V. Brown, Jr., Washington, D.C., were on the brief, for appellee United Mine Workers of America in Nos. 91-7051, 91-7052 and 91-7059. Judith A. Scott, Washington, D.C., also entered an appearance for appellee.
Peter Buscemi, Robert A. Dufek, Alissa D. Aaronson and Stanley F. Lechner, Washington, D.C., were on the brief, for amicus curiae urging reversal.
Before: BUCKLEY, WILLIAMS and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.
STEPHEN F. WILLIAMS, Circuit Judge:
The continual discovery of new coal mines and exhaustion of old ones leads to a very high turnover of employers in the coal industry. Because of this and the mobility of employees, labor and management in the industry have since 1950 worked out a means for assuring workers retirement benefits without linking specific workers to specific employers. They have done this through national, multi-employer agreements between the United Mine Workers of America and a multi-employer association of coal producers, the Bituminous Coal Operators' Association ("the BCOA" or "the Association"). All coal companies that join the agreements pay into the same health and benefit funds at a specified rate per ton of coal produced, and all eligible employees receive benefits from those funds without reference to the employers they happened to be working for at the time of their retirement. The issue here is whether certain coal companies that joined the 1984 Bituminous Coal Wage Agreement were entitled to cut their rate of payment simply by entering into a later agreement with the UMW providing for a lower rate. Because we believe that at an absolute minimum the 1984 Agreement can be construed as barring this sort of spontaneous burden-shedding, we reverse the summary judgment granted by the district court and remand for further proceedings.
The defendants are the UMW itself and several coal companies that, although not members of the BCOA, joined the 1984 Agreement either by becoming actual signatories or by signing so-called "me-too" agreements. "Me-too" agreements have terms identical to the terms of the national agreement, and thus there is no distinction among them concerning employers' contractual rights and obligations. See Bituminous Coal Operators' Ass'n v. Connors,
The 1984 Agreement adopted a rate of contribution to the Fund that had been originally chosen in 1978, namely $1.11 per ton of coal produced. The 1984 Agreement itself remained in effect until February 1988, when the UMW and the BCOA entered into a new national agreement that reduced the contribution level to zero. The Fund is and has long been "closed": only workers who retired before 1976 are eligible, and its liabilities may be calculated with a fair degree of actuarial precision.
In January 1987 a group of coal producers who had joined the 1984 Agreement entered into new agreements with the UMW, called Employment and Economic Security Pacts ("the EESPs"). The EESPs were worded so as to take effect once the 1950 Fund was fully funded, i.e., had reserves enough to pay all actuarily expected claims. They provided that, starting then, the employers would contribute to the Pension Fund at a rate of only $0.25/ton. In exchange for agreeing to this reduction, the UMW secured from the coal companies [
In May 1987 the Trustees filed suit against the UMW and the defecting coal companies, seeking to recover the differential between the amount those companies would have paid between the effective date of the EESPs in early 1987, and the cessation of all contributions pursuant to the 1988 agreement, had they continued to contribute at $1.11/ton rather than $0.25/ton--roughly $16 million dollars. The Trustees, claiming to be third-party beneficiaries of the 1984 Agreement, argued that the UMW and the defendant employers were bound to continue paying at the $1.11/ton rate provided for in the 1984 Agreement until that agreement was itself terminated or modified. The district court granted summary judgment for the defendants, evidently on the theory that on the record before it the 1984 Agreement could not possibly be found to lock the defendants into the 1984 Agreement and its $1.11/ton rate. Summary judgment in this context is properly granted only where the provision in question admits only of the interpretation offered by the moving party. E.g., America First Inv. Corp. v. Goland,
In arguing that the defendants were not free to reduce their payments, the Trustees point particularly to a so-called "evergreen clause" that originated in the 1978 agreement and was incorporated in substance into the 1984 Agreement. The clause reads as follows:
Any employer who employed any participant eligible for coverage under, or who received or receives benefits under, the 1950 Pension Plan, or any Employer who was or is required to make, or who has made or makes contributions to the 1950 Pension Plan and Trust, is obligated and required to comply with the terms and conditions of the 1950 Pension Plan and Trust, as amended from time to time, including, but not limited to, making the contributions required under the National Bituminous Coal Wage Agreement of 1978, as amended from time to time, and any successor agreements thereto including, but not limited to, the National Bituminous Coal Wage Agreement of 1984.
Joint Appendix ("J.A.") at 83, 95 (emphasis added). On its face at least, the clause seems to bind parties to the contribution rate provided in the national agreements, including the 1984 Agreement, and thus the $1.11/ton rate, until a successor agreement should provide otherwise.
Other clauses incorporated into the 1984 Agreement confirm that reading. First, Article VI, Section B, paragraph (8) of the Amended 1950 Pension Plan provides that "Contributions to the 1950 Pension Trust ... shall be paid solely by the Employers in accordance with ... the National Bituminous Coal Wage Agreement of 1984, as amended from time to time, and any successor agreements to that specific agreement", J.A. at 79 (emphasis added), language which seems to preclude side agreements enabling particular parties to adopt a lower rate. Other language in documents incorporated in the 1984 Agreement specifies that the "me-too" agreements are to be treated as "Wage Agreements" "solely for the purposes of determining who is required to make contributions to, and receive benefits under, the 1950 Pension Trust." J.A. 70, 87. This suggests the parties' anticipation of accession to the agreement solely for purposes of the 1950 Fund, but with the 1984 Agreement (and successors) being the sole source of control of those contributions. Finally, the clauses allowing action to be taken for the coal companies by ones that are parties to the wage agreement and that account for 51% or more of the contributions, and providing for amendment of the agreements, see J.A. 78-79, 83, 94-95, suggest a determination that the agreements should not be undermined by a minority of contributors.
Extrinsic evidence further supports the Trustees' interpretation. At the time of the 1978 Agreement, the Fund's liability exceeded its assets. According to a declaration of Mr. Roger Haynes, a labor negotiator and according to the Trustees the Association's "key spokesman" on issues relating [
Rather than provide their own interpretation of the language of the evergreen clause or offer competing extrinsic evidence, the defendants argue mainly that under the Trustees' reading the evergreen clause is a waiver of their statutory right to enter into collective bargaining (on the subject of contribution to the Fund) and is thus covered by the labor law doctrine that waivers of statutory rights can be effective only if "clear and unmistakable". Metropolitan Edison Co. v. NLRB,
The doctrine of "clear and unmistakable" waiver, however, is inapplicable here. Defendants' invocation of the doctrine is based on the notion that under the Trustees' reading of the evergreen clause, the defendant companies and union waived the right to bargain on the subject of contributions to the 1950 Fund. But to the extent that a bargain resolves any issue, it removes that issue pro tanto from the range of bargaining. Such issue resolutions are not waivers within the meaning of the doctrine.
Recently, in Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. FLRA,
A waiver occurs when a union knowingly and voluntarily relinquishes its right to bargain over a matter; but where the matter is covered by a collective bargaining agreement, the union has exercised its bargaining right and the question of waiver is irrelevant.
Id. (emphasis in original). Accord Local Union No. 47,
It is hard to find any waiver in sight. In the 1984 Agreement the UMW and the employers appear simply to have agreed on a criterion for determining the employers' pension fund contribution, namely the figure embodied in the 1984 Agreement ($1.11), subject to such changes as might be agreed upon by (1) the UMW itself and (2) the BCOA--an organization which on this issue would seem to have interests virtually identical to those of the defendant employers. The defendants do [
Nor is the Trustees' view of the 1984 Agreement undermined by the fact that the EESPs took effect only after the Fund was fully funded. Nothing in the words of the 1984 Agreement suggests that the parties' obligations should cease at the moment of full funding. See Bituminous Coal Operators' Ass'n, Inc. v. Connors,
Thus the parties may well have reasoned that when full funding had clearly been obtained, the parties' incentives to agree on termination would come into play, leading to an orderly end of contributions; any deviation from hitting "full funding" right on the nose would go to the benefit of the pensioners. Indeed, the 1988 agreement converted the Fund's surplus into added pension benefits for its eligible retirees. See J.A. at 95; see also Bituminous Coal Operators' Ass'n,
Defendants assert that insofar as plaintiff Trustees assert rights as third-party beneficiaries of the 1984 Agreement they overlook the doctrine that ordinary TPB law may not be used "to interpret collective agreements in a manner contrary to federal labor policy", Brief of Island Creek Corp., et al. at 24, citing Schneider Moving & Storage and Lewis. But in fact in both cases the Court found that the TPBs in question, there as here trustees of funds for the benefit of employees and their families, should enjoy a status superior to that of ordinary TPBs, and should be free of the usual rule that any defense a promisor would have against the promisee can be invoked against the TPB. Schneider Moving & Storage,
Finally, defendants suggest that ordinary TPB law allows the promisor and promisee to modify their agreement up to the point where the TPB has acted in reliance upon the agreement. But the issue of when the parties may amend over a TPB's objection, see generally 3 E.A. Farnsworth, Farnsworth on Contracts § 10.8 (1990) (setting forth alternative rules), is not really in question, for in this case it is understood that even an employer who joins by virtue of a "me-too" agreement is a party to the full 1984 Agreement, and such an employer is tied contractually to all other joining employers, including those who did not strike a deal with the UMW to reduce their payments. Without their agreement (or amendment by the [
* * *
We leave further exploration of these issues to the district court. In light of the above, it is clear that evergreen clause is, at the very least, susceptible to the Trustees' interpretation. Accordingly, the district court's grant of summary judgment in favor of the defendants is
Reversed and Remanded.
Notes
To the extent that defendants rely on a notion that bargaining history cannot play a role in satisfying that standard (if applicable), they are plainly wrong. Local Union No. 47,