Society of Professional Engineering Employees in Aerospace, IFPTE Local 2001, AFL-CIO v. The Boeing Company

Filing 585

MEMORANDUM AND ORDER denying 582 Motion for Reconsideration. SEE ORDER FOR DETAILS. Signed by District Judge Monti L. Belot on 1/18/2013. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
SOCIETY OF PROFESSIONAL
ENGINEERING EMPLOYEES IN
AEROSPACE, et al.,
Plaintiffs,
v.
BOEING CO., et al.,
Defendants.

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CIVIL ACTION
Nos. 05-1251-MLB
07-1043-MLB

MEMORANDUM AND ORDER
This case comes before the court on plaintiffs’ motion for
partial reconsideration.

(Doc. 582).

briefed and is ripe for decision.

The motion has been fully

(Doc. 584).

Plaintiffs’ motion is

denied for the reasons herein.
Analysis
Plaintiffs move for reconsideration of the court’s decision that
IAM’s claim for breach of contract with respect to the amendments in
the Plan failed as a matter of law because the IAM’s CBA was not in
effect at the time of the amendments. (Doc. 581, n.47).

Plaintiffs

contend that the court’s decision misapprehended their position which,
they say, they raised in their response brief (Doc. 566) and which is
that their claim for breach of contract arose when Boeing transferred
the assets to the Spirit Plan, which occurred prior to the date the
CBA expired.
In the pretrial order, plaintiffs very generally claimed that
“Boeing’s February 22, 2005 contract with Spirit wherein Boeing
contracted to transfer the pension assets of certain employees, also

breached Boeing’s contract with the employees’ unions, all of which
forbade Boeing from unilaterally amending the benefit plans.” (Doc.
548).

Then, in their motion for summary judgment, plaintiffs set out

six points in support of their assertion that Boeing breached its
union contracts and, more specifically, that Boeing made binding
promises about layoff protection in its contracts.

Point number five

pertained to plan amendments, one of which was Amendment 40 to the
BCERP.

Plaintiffs claimed that “the same layoff provisions on Layoff

Bridge applied to all Wichita employees equally, and Boeing was
forbidden

from

making

this

unilateral

amendment

by

other

union

contracts.” (Doc. 552, n.10). Plaintiffs did not identify the “other
contracts.
Boeing responded, in part, as follows:
To be eligible to bridge to pension and retiree
medical benefits under the CBAs, an employee must not
only experience a “layoff,” but also retire under the
BCERP. See SOF ¶¶ 57, 68; Pls. Br. 60–61. The Harkness
plaintiffs cannot satisfy the second requirement any more
than the first. Because Boeing transferred their pension
assets and liabilities to the Spirit Mirror Plans, they
are no longer eligible to retire under the BCERP.
Implicitly conceding as much, plaintiffs resort to
arguing that Boeing’s transfer of their pension assets
violated the CBAs, and that they are therefore entitled
to be participants in the BCERP. Pls. Br. 64. Again,
plaintiffs’ arguments fall well short of the mark.
As a threshold matter, plaintiffs cannot possibly
claim any breach of the CBA between the IAM and Boeing
because no such CBA was in effect when Boeing added
Article 14 on September 14, 2005. SOF ¶¶ 219–222. The
IAM had terminated its CBA with Boeing effective
September 1, 2005, and did not execute a new CBA with
Boeing until September 29, 2005. Id. And the September
29 agreement was not made retroactive, but was by its
very terms effective on that date. SOF ¶ 222. Boeing
could not have breached a CBA that simply did not exist
at the time. See United Food & Commercial Workers Int’l
Union, AFL-CIO, Local 7 v. Gold Star, 897 F.2d 1022, 1026
(10th Cir. 1990). Apparently admitting as much,
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plaintiffs allege only that Boeing’s amendment of the
BCERP violated “the other Union Contracts.” Pls. Br. 68
n.10 (emphasis added). But neither the other unions nor
their members filed any grievances challenging Boeing’s
action as a breach of the respective CBAs and, thus, they
cannot raise the issue now.
(Doc. 556 at 102-103).
Plaintiffs’ reply to Boeing’s position was:
Boeing is wrong, for all the following reasons.
First, the IAM complained about Boeing’s breach in June
2005, when it filed a formal grievance challenging
Boeing’s interference with the Layoff Bridge. Pls. Ex.
R-2.
Boeing
cannot
escape
liability
when
legal
proceedings have already commenced by engaging in
unilateral acts. Second, all the Contracts, not just the
IAM Contract, forbade this plan amendment, which affected
all the employees equally as BCERP participants. Third,
federal labor law forbade Boeing from changing the
pension terms here, even in a contract hiatus. Trs. of
Colo. Pipe Indus. v. Howard Elec. & Mech., 909 F.2d 1379,
1383 (10th Cir. 1990). Fourth, Boeing admits it never
informed the IAM of this change during bargaining,
depriving Boeing of its waiver argument. Pls. SOF ¶ 123;
Pls. Ex. U at ¶11. Fifth, and finally, as shown below
this plan amendment violated ERISA as an illegal cutback.
See Part II.A below.
(Doc. 566 at 25).
But plaintiffs made no attempt to explain how the transfer of
assets during the IAM CBA term resulted in a breach of the CBA.
Plaintiffs’ contention that they complained of the transfer in the
grievance is factually incorrect.

The grievance does not discuss the

transfer of the Boeing plan’s assets to the Spirit plan. Plaintiffs’
conclusory statement that the contracts “forbade the plan amendment”
clearly refers to the changes which were made after the IAM CBA term
ended.

Plaintiffs’ third argument, that federal labor law forbids

changes to the plan, is not supported in this case.

Howard Elec.

discussed an employers’ obligation to continue to fund a pension plan
during contract negotiations. The facts of this case are not remotely
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similar.

Most importantly, the individual plaintiffs in this action

were no longer Boeing employees.

Plaintiffs do not point out how the

holding in Howard Elec. is applicable to this case.

Plaintiffs’

remaining arguments are not persuasive and do not support plaintiffs’
current position on reconsideration.
In its Memorandum and Order, the court noted:
The IAM terminated its CBA with Boeing effective
September 1, 2005. Therefore, there was no CBA in effect
at the time of the amendments. Because Boeing made the
changes after September 1, the IAM plaintiffs’ claim of
breach of contract on this issue fails as a matter of
law. Boeing’s motion for summary judgment on the IAM
claim of breach of contract is granted. Plaintiffs’
motion is denied.
(Doc. 581 at n.47).
Plaintiffs seek reconsideration on the basis that the court
“misapprehended” their position that plaintiffs’ breach of contract
claims against Boeing for the pension transfer must have accrued
before September 2005 because Boeing announced the transfer before
that time. (Doc. 582 at 5).

Plaintiffs do not cite any part of their

extensive briefs where this “must have accrued” argument is made. The
court is not a mind reader, nor is the court required to construct
arguments for plaintiffs. The court cannot “misapprehend” an unstated
position.
Conclusion
Plaintiffs’ motion for reconsideration is denied.

(Doc. 582).

IT IS SO ORDERED.
Dated this

18th

day of January 2013, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
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UNITED STATES DISTRICT JUDGE

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