FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES BROWN, an individual, 

Plaintiff-Appellee, No. 08-55398

v. D.C. No.  2:06-cv-06740- SOUTHERN CALIFORNIA IBEWMMM-JC NECA TRUST FUNDS, an

unincorporated association, OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the Central District of California

Margaret M. Morrow, District Judge, Presiding

Argued and Submitted

April 14, 2009—Pasadena, California

Filed December 7, 2009

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

Circuit Judge, and Richard Mills,* District Judge.

Opinion by Judge Pregerson

*The Honorable Richard Mills, United States District Judge for the

Central District of Illinois, sitting by designation. 

15965
COUNSEL

Donald C. Carroll, Charles P. Scully, II, Law Offices of Carroll & Scully, Inc., San Francisco, California, for the

defendant-appellant.

John R. St. John, St. John, Wallace, Brennan & Folan LLP,

for the plaintiff-appellee.

BROWN v. SOUTHERN CALIFORNIA IBEW-NECA 15967
OPINION

PREGERSON, Circuit Judge:

We must decide whether the Board of Trustees of the

Southern California International Brotherhood of Electrical

Workers-National Electrical Contractors Association (IBEWNECA) Pension Plan violated ERISA when it suspended

James Brown’s early retirement benefits. The Board of Trustees determined that Brown’s job installing heating, ventilation, and air conditioning (HVAC) equipment for an electrical

contractor constituted “employment as an electrical contractor,” a prohibited activity for persons drawing early retirement

benefits. The district court found that the Board of Trustees

erred when it suspended Brown’s early retirement benefits.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm

the district court.

I Background.

The Southern California IBEW-NECA Pension Plan provides for payment of early retirement benefits to certain qualifying pension plan participants. Under section 9.8(c)(1) of the

Plan, qualifying retirees must refrain from any of the following:

(i) holding a C-10 [independent electrical contractor] license,[1

]

(ii) registering (or remaining registered) for

employment at any union hiring hall in the

electrical construction contracting industry,

1A C-10 license is a California state electrical contractor license. “An

electrical contractor places, installs, erects or connects any electrical wires,

fixtures, appliances, apparatus, raceways, conduits, solar photovoltaic cells

or any part thereof, which generate, transmit, transform or utilize electrical

energy in any form or for any purpose.” Cal. Code Regs. tit. 16, § 832.10.

Brown did not hold a C-10 license. 

15968 BROWN v. SOUTHERN CALIFORNIA IBEW-NECA
(iii) actively seeking employment in the electrical

construction contracting industry by means

other than the union hiring hall, 

(iv) employment as an electrical contractor, including, but not limited to, bidding jobs, performing electrical construction work, hiring

employees, leasing buildings or equipment in

the name of the electrical company or soliciting work,

(v) engaging in Nonunion Employment . . . .

Brown was awarded early retirement benefits and subsequently notified the Plan that Siemens Building Technologies

(Siemens) had hired him as a Systems Specialist, a job involving the installation of HVAC equipment.

In July 2005, the Board of Trustees determined that

Brown’s job with Siemens constituted suspendible employment under the terms of the Plan and that Brown was not entitled to any benefits between December 2001, when Siemens

hired him, and July 2005. The Board of Trustees advised

Brown of its intention to recoup approximately $103,043 in

benefit overpayments and to suspend his future early retirement benefits. Brown appealed the decision of the Board of

Trustees to the Board of Trustees Appeals Sub-Committee.

The Appeals Sub-Committee found that “Brown’s employment with Siemens constitute[d] a prohibited activity of,

‘. . . performing electrical construction work . . .’ under Section 9.8(c)(1)(iv)” and recommended upholding the suspension. The Board of Trustees adopted the findings and

recommendations of the Appeals Sub-Committee. Brown

timely filed an action in district court pursuant to 29 U.S.C.

§ 1132, challenging the decision of the Board of Trustees.

The district court concluded that the Board of Trustees

erred when it determined that Brown’s job as a systems speBROWN v. SOUTHERN CALIFORNIA IBEW-NECA 15969
cialist with Siemens constituted “employment as an electrical

contractor.” The district court observed:

[Section 9.8(c)(1)(iv)] prohibits early retirees from

engaging in “employment as an electrical contractor, including, but not limited to, bidding jobs, performing electrical construction work, hiring

employees, leasing buildings or equipment in the

name of the electrical company[,] or soliciting work”

(emphasis added). The provision quite plainly proscribes self-employment in the electrical construction industry as an independent contractor. The

Board [of Trustees], however, focused exclusively

on the prohibition against “performing electrical

construction work” in concluding that Brown’s

employment activity was prohibited by

§ 9.8(c)(1)(iv). This was unreasonable. An individual does not become an “electrical contractor”

merely because he “perform[s] electrical construction work.” See generally Cal. Lab. Code § 2750.5.

(First and third alterations and second emphasis added) (internal citation and footnote omitted). The district court noted that

section 2750.5 of the California Labor Code provides factors

probative of independent contractor status.2 The district court

2California Labor Code section 2750.5 provides in pertinent part that

independent contractor status may be determined by examining these factors: 

(a) That the individual has the right to control and discretion as

to the manner of performance of the contract for services in

that the result of the work and not the means by which it is

accomplished is the primary factor bargained for. 

(b) That the individual is customarily engaged in an independently established business. 

(c) That the individual’s independent contractor status is bona

fide and not a subterfuge to avoid employee status. A bona

fide independent contractor status is further evidenced by

15970 BROWN v. SOUTHERN CALIFORNIA IBEW-NECA
ordered the Board of Trustees to pay Brown $62,167.20, representing the withheld early retirement benefits, along with

attorney’s fees, expenses and costs. The district court further

directed the Board of Trustees to reinstate Brown’s monthly

early retirement benefits. The Board of Trustees timely

appeals.

II The Standard the District Court Used to Review the

Decision of the Board of Trustees.

[1] The Board of Trustees first argues that the district court

erred by failing to review its decision to suspend Brown’s

early retirement benefits under the abuse of discretion standard. We review de novo “a district court’s choice and application of the standard of review to decisions by fiduciaries in

ERISA cases.” Abatie v. Alta Health & Life Ins. Co., 458 F.3d

955, 962 (9th Cir. 2006) (en banc).

[2] The parties argued before the district court that the decision of the Board of Trustees to suspend Brown’s early retirement benefits should be reviewed for abuse of discretion. The

district court found that it was not clear that abuse of discrethe presence of cumulative factors such as substantial

investment other than personal services in the business,

holding out to be in business for oneself, bargaining for a

contract to complete a specific project for compensation by

project rather than by time, control over the time and place

the work is performed, supplying the tools or instrumentalities used in the work other than tools and instrumentalities

normally and customarily provided by employees, hiring

employees, performing work that is not ordinarily in the

course of the principal’s work, performing work that

requires a particular skill, holding a license pursuant to the

Business and Professions Code, the intent by the parties that

the work relationship is of an independent contractor status,

or that the relationship is not severable or terminable at will

by the principal but gives rise to an action for breach of contract. 

BROWN v. SOUTHERN CALIFORNIA IBEW-NECA 15971
tion review was appropriate. The district court did not determine the correct standard of review, however, because it

reasoned that its decision would be the same under either

abuse of discretion or de novo review. Because we agree with

the district court that the result would be the same under

either standard of review, we likewise need not decide the

question.

III The Decision of the Board of Trustees to Suspend

Brown’s Early Retirement Benefits.

The Board of Trustees erred under either an abuse of discretion or a de novo standard of review. See McDaniel v.

Chevron Corp., 203 F.3d 1099, 1113 (9th Cir. 2000) (“A plan

administrator’s decision to deny benefits must be upheld

under the abuse of discretion standard if it is based upon a

reasonable interpretation of the plan’s terms and if it was

made in good faith.”) (citing Bendixen v. Standard Ins. Co.,

185 F.3d 939, 944 (9th Cir. 1999)); Sznewajs v. U.S. Bancorp

Amended and Restated Supplemental Benefits Plan, 572 F.3d

727, 733 (9th Cir. 2009) (explaining that under a de novo

standard, “the court should grant no deference to the plan’s

decision”).

The Board of Trustees’s interpretation of the terms of the

Plan was contrary to the Plan’s plain language. The district

court correctly found that Brown’s employment with Siemens

was not “employment as an electrical contractor” constituting

“suspendible employment” under the Plan.

Section 9.8(c)(1) of the Plan states that “[t]o be considered

retired prior to his Normal Retirement Date a Pensioner must

refrain from any of the following activities” and lists five subparagraphs of prohibited activities. The specific subparagraph of 9.8(c)(1) at issue prohibits a pensioner from

engaging in:

(iv) employment as an electrical contractor, including, but not limited to, bidding jobs, perform15972 BROWN v. SOUTHERN CALIFORNIA IBEW-NECA
ing electrical construction work, hiring

employees, leasing buildings or equipment in

the name of the electrical company or soliciting work[.]

The plain language of section 9.8(c)(1)(iv) prohibits an early

retirement benefits recipient from working “as an electrical

contractor,” and then lists a number of tasks generally performed by electrical contractors, one of which is “electrical

construction work.” But that is not to say that performance of

any task included in the list automatically qualifies the person

performing the task as an “electrical contractor.” For example,

electrical contractors may hire employees, but not every person who hires employees is an electrical contractor. Similarly,

electrical contractors may perform electrical construction

work, but not every person performing electrical construction

work is an electrical contractor.

[3] In conflating “electrical construction work” with “employment as an electrical contractor,” the Board of Trustees

ran afoul of our holding that “each provision in an agreement

should be construed consistently with the entire document

such that no provision is rendered nugatory.” Richardson v.

Pension Plan of Bethlehem Steel Corp., 112 F.3d 982, 985

(9th Cir. 1997) (citing Armistead v. Vernitron Corp., 944 F.2d

1287, 1293 (6th Cir. 1991)). As the facts of this case demonstrate, Brown is not an electrical contractor — Siemens is the

electrical contractor, while Brown is a regular employee of

that company who performs electrical construction work.

[4] The Board of Trustees’s interpretation of the Plan

creates a much broader category of prohibited activities than

is supported by the plain language of the Plan. See Canseco

v. Constr. Laborers Pension Trust for S. Cal., 93 F.3d 600,

608 (9th Cir. 1996) (stating it is an abuse of discretion for

plan trustees to “ ‘impose a standard [of eligibility for pension

plan benefits] not required by the pension plan itself’ ”) (quoting Morgan v. Mullins, 643 F.2d 1320, 1321 (8th Cir. 1981))

BROWN v. SOUTHERN CALIFORNIA IBEW-NECA 15973
(alteration in original). The Board of Trustees erred when it

suspended Brown’s early retirement benefits because of his

performance of electrical construction work. That work did

not violate section 9.8(c)(1)(iv)’s prohibition on employment

as an electrical contractor. Brown was employed by Siemens

to install HVAC equipment. His relationship with Siemens is

that of an employee, not as an independent electrical contractor.

CONCLUSION

[5] Under abuse of discretion or de novo review, the Board

of Trustees erred by interpreting the Plan in a way that contradicted the Plan’s plain language. Accordingly, the judgment

of the district court is 

AFFIRMED.

15974 BROWN v. SOUTHERN CALIFORNIA IBEW-NECA