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

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RESILIENT FLOOR COVERING
PENSION TRUST FUND BOARD OF
TRUSTEES; RESILIENT FLOOR
COVERING PENSION TRUST FUND,
Plaintiffs-Appellants,
v.
MICHAEL’S FLOOR COVERING,
INC.,
Defendant-Appellee.
No. 16-16749
D.C. No. 3:11-cv-05200-JSC
MEMORANDUM*
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.
FILED
DEC 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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.

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