23

‐ 647

‐ cv

Dycom Indus., Inc. v. Pension, Hosp’n & Benefit Plan of the Elec. Indus.



# United States Court of Appeals

**for the Second Circuit**

August Term 2023

(Argued: March 18, 2024 Decided: April 15, 2024)

Docket No. 23

‐ 647

‐ cv

___________________ ____________________

Dycom Industries, Inc.,

Plaintiff

‐ Appellant

,

v.

Pension, Hospitalization & Benefit

Plan of the Electrical Industry,

Defendant

‐ Appellee

.

Appeal from the United States District Court

for the Southern District of New York

No. 22

‐ cv

‐ 3303, Paul A. Engelmayer, Judge

.

Before: SACK, BIANCO and PARK, Circuit Judges

.

In this appeal, the Dycom Industries, Inc. (“Dycom”) challenges the District

Court’s judgment confirming an arbitration award, which assessed withdrawal

liability against Dycom based on the arbitrator’s determination that its

predecessor

‐ in

‐ interest was not operating in the building and construction

industry, and thus was not exempt from with draw al liability under Section

4203(b) of the Employee Retirement Income Security Act of 1974 (“ERISA”), 29

U.S.C. § 1383(b). We conclude that the cable installation services at issue in this2 appeal did not involve work in the “building and construction industry” under

Section 1383(b). AFFIRMED.

E RIC F IELD (Lawrence Levien, on the brief ), Littler

Mendelson, P.C., Washington, District of Columbia for

Plaintiff

‐ Appellant

.

J AMES E MMET M URPHY (Charles R. Virginia III, on the

brief ), Virginia & Ambinder, LLP, New York, New York

for Defendant

‐ Appellee

.

P ER C URIAM :

Plaintiff

‐ Appellant Dycom Industries, Inc. (“Dycom”) appeals from the

district court’s judgment confirming an arbitration award, which assessed

withdrawal liability against Dycom based on the arbitrator’s determination that

Dycom’s predecessor

‐ in

‐ interest, Midtown Express, LLC (“Midtown”), was not

operating in the building and construction industry, and thus was not exempt

from with dr awal liability under Section 4203(b) of the Employee Retirement

Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1383(b). For the reasons stated

below, we affirm.

BACKGROUND

Midtown was a cable contractor that performed work involving the

installation, servicing, and disconnection of telecommunications cables necessary

to provide cable television, internet, and tele phone services exc lusively to3 customers of Time Warner Cable Company in New York City and Bergen County,

New Jersey. Midtown entered into collective bargaining agreements (“CBAs”)

with non

‐ party Local Union No. 3 of the International Brotherhood of Electrical

Workers (“Local 3”), which required Midtown to contribute to the Pension,

Hospitalization & Benefit Plan of the Elect rical Industry (the “Fund”), a

multiemployer pension plan under ERISA. See 29 U.S.C. §§ 1001 et seq

., amended

by the Multiemployer Pension Plan Amendment Act of 1980 (“MPPAA”),

29 U.S.C. §§ 1381–1461.

In April 2016, Midtown notified Local 3 that it was permanently shutting

down its operations and ceased contributions to the Fun d aft er July 12, 2016. The

Fund notified Midtown that its dissolution constituted a complete withdrawal

from the Fund and assessed Midtown’s (and its successor, Dycom’s) withdrawal

liability under 29 U.S.C. § 1381. 1 Midtown demanded arbitration, arguing that

substantially all its employees were performing work in the building and

1 “A ‘complete withdrawal’

. . . occurs when an employer

. . . ‘permanently ceases all covered

operations under the plan,’ for example by going out of business, or renegotiating the terms of its

CBA.” N.Y. State Teamsters Conf. Pension & Ret. Fund v. C&S Wholesale Grocers, Inc.

, 24 F.4th 163

,

170– 71 (2d Cir. 2022) (quoting 29 U.S.C. § 1383(a)).4 construction industry, and thus it is subject to an exemption from withdrawal

liability under 29 U.S.C. § 1383(b).

The arbitrator determined that Midtown did not qualify for the exemption.

In particular, the arbitrator concluded that Midtown’s employees “worked almost

exclusively in existing buildings that were prewired for their purposes” and were

generally not required to make “an y repa irs and/or alterations to an existing

building or other structures.” Special App’x at 58. The arbitrator credited

testimony of former Midtown employees that about sixty to seventy percent of

Midtown’s work consisted of “reconnections,” which involved installing a cable

box onto premises that were alre ady wir ed for cable. Around twenty to thirty

percent of the work consisted of cable “upgrades,” which occasionally involved

drilling holes and running of wires, requiring nailing or stapling along a wall but

never “beyond a wall.” Special App’x at 58. About ten percent or less involved

“new connections,” which als o largely req uired laying wires along walls to create

connections in pre

‐ wired buildings. The arbitrator also found, based on the

testimony of Midtown’s Vice President of Operations, that “most of the residential

buildings upon which Midtown worked were already wired for cable” and that,

“if the cable was already installed and the signal to the buildin g wa s working, the5 technician would not need to drill any holes into the building to run cable.”

Special App’x at 38. In short, based on these factual findings, the arbitrator

concluded that Midtown employees did not perform work in the building and

construction industry.

Dycom then filed this lawsuit to vacate the arbitrator’s award, and the Fu nd

filed a cross

‐ motion to confi rm the award. The magistrate judge (Stewart D.

Aaron, M.J. ) issued a report and recommendation (“R&R”), which “agree[d] with

[the arbitrator’s] conclusion that ‘[t]here is no doubt’ that Midtown’s

warehousemen, dispatchers and data entry employees were not working in the

building and construction industry. ” Dycom Indus., Inc. v. Pension, Hosp’n & Benefit

Plan of Elec. Indus.

, No. 22

‐ cv

‐ 3303 (PAE) (SDA), 2022 WL 19406560, at *5 (S.D.N.Y.

Dec. 27, 2022). The R&R further found that “Midtown’s installers (also referred to

as technicians) were not engaged in the building and construction industry.” Id

.

In particular, the R&R explained that “drilling holes and running cable through

existing buildings or structures, and the n using material an d parts to hook up the

cable to the necessary equipment in order to provide cable, television, Wi

‐ Fi and6 home security services is not within the ambit of work performed in the ‘building

and construction industry’ under [Section 1383].” Id

. (record citation omitted).

The district court, over Dycom’s objections, adopted the R&R issued by the

magistrate judge, denied Dycom’s motion to vacate the award, and granted the

Fund’s cross

‐ motion to confirm the awar d. Dycom Indus., Inc. v. Pension, Hosp’n &

Benefit Plan of Elec. Indus.

, No. 22

‐ cv

‐ 3303 (PAE) (SDA), 2023 WL 2625811, at *4

(S.D.N.Y. Mar. 24, 2023).

Dycom appealed.

DISCUSSION

We review de novo an arbitrator’s determination that a party does not qualify

for an exemption from withdraw al liability under ERIS A. See HOP Energy, L.L.C.

v. Local 553 Pension Fund

, 678 F.3d 158, 160 (2d Cir. 2012). “By contrast, factual

findings made by an arbitrator enjoy a presumption of correctness.” Nat’l Ret.

Fund v. Metz Culinary Mgmt., Inc.

, 946 F.3d 146, 149 (2d Cir. 2020) (internal

quot ation marks omitted) (c iting 29 U.S.C. § 1401(c) (“[T]here shall be a

presumption, rebuttable only by a clear preponderance of the evidence, that the

findings of fact made by the arbitrator were correct.”)). We recognize that the

same rules of construction apply to an exemption, such as Section 1383(b), as to7 ERISA’s other provisions. See BP P.L.C. v. Mayor & City Council of Baltimore

, 141

S. Ct. 1532, 1539 (2021) (“Exceptions and exemptions are no less part of Congress’s

work than its rules and standards—and all are worthy of a court’s respect.”). In

assessing whether withdrawal liability applies to Midtown, “it is our

responsibility to make sure th e legislative te sts for permitting the avoidance of

withdrawal have [or have not] been satisfied, not to determine whether extraneous

considerations could lead to a different conclusion.” Bowers v. Andrew Weir

Shipping, Ltd.

, 27 F.3d 800, 806 (2d Cir. 1994).

On appeal, Dycom does not challenge the arbitrator’s factual findings.

Thus, the sole legal question presented is whether the arbi trator erred in finding

that Midtown was not operating in the business and construction industry as

contemplated by Section 1383(b), which would afford Dycom, as Midtown’s

successor

‐ in

‐ interest, an exemption from withdrawal liability. The exemption

applies only if “s ubst antially all the employees with respect to whom the employer

has an obligation to contribute under the plan perform work in the building and

construction industry.” 29 U.S.C. § 1383(b)(1)(A). We conclude that the arbitrator

correctly determined that the work performed by Midtown was not work within8 the building and construction industry under Section 1383(b) and, thus, the

exemption did not apply. 2

Although the phrase “building and construction industry” is not defined in

ERISA, the parties agree that we should utilize the definition articulated by the

National Labor Relations Board (“NLRB”) for the purposes of the Taft

‐ Hartley Act,

29 U.S.C. § 158(f), in Carpet, Linoleum and Soft Tile Local Union No. 1247 (“ Indio

Paint”)

, 156 N.L. R.B. 951, 959 (1966). 3 In Indio Paint

, the NLRB considered the

common usage of the verbs “build” and “construct” as well as “technical

industrial parlance.” Id

. at 957–59. The NLRB noted that in “common parlance,”

the word construction was defined as “[t]he act of putting parts together to form

a complete and integrated object.” Id

. at 958 (emphasis omitte d) (quoting

Webster’s Third New International Dictionary). The NLRB imported a “technical”

definition from materials published jointly by the U.S. Departments of Commerce

2 In light of the conclusion that Midtown did not perform work in the building and construction

industry, we need not address whether “substantially all” of Midtown’s employees under the

plan were involved in such work. 29 U.S.C. § 1383(b)(1)(A).

3 Under the Taft

‐ Hartley Act, “construction industry” work is that “relating to the contracting or

subcontracting of work to be done at the site of the construction, alteration, painting, or repair of

a building, structure, or other work.” 29 U.S.C. § 158(e). The provision relating to the “building

and construction industry” in 29 U. S.C. § 158(f) contains no definition of that term; however, in

order to avail themselves of the provisions of Section 158(f), employers must be “engaged

primarily in the building and construction industry.” 29 U.S.C. § 158(f).9 and Labor that “[c]onstruction covers the erection, maintenance and repair

(including replacement of integral parts), of immobile structures and utilities[.]”

Id

. at 957. “It includes structural additions and alterations” that, “when installed,

become an integral part of the structure and are necessary to any general use of the

structure,” such as “plumbing, heating, air

‐ conditioning and lighting equipm ent .”

Id

. at 957–58. However, “construction does not include the procurement of special

purpose equipment designed to prepare the structure for a specific use.” Id

. at 958.

Based upon these definitions, which the NLRB also noted had been utilized by

various courts, the NL RB found that the “buil ding and construction industry,” for

purposes of the Taft

‐ Hartley Act, involves “the provision of labor whereby

materials and constituent parts may be combined on the building site to form,

make or build a structure.” Id

. at 959 (emphasis omitted).

Applying the Indio Paint definition here, the arbitrator correctly determined

that Midtown did not perform work in the building an d construction industry.

The arbitrator found that “Midtown almost never worked on new construction

projects” but rather “provided cable service for homes or apartment houses that

were prewired for that service.” Special App’x at 56. In that capacity, Midtown’s

employees were in volved in reconnects, new connections, and up grades, which10 “generally did not require any repairs and/or alterations to an existing building or

other structures.” Special App’x at 58. For reconnects, “[t]he technician just

needed to put in a cable box and make sure a signal was going through” and only

had to do wiring in a small percentage of jobs. Special App’x at 58. Similarly, new

connections were “not ver y complicated because most of these assignments were

in structures where the wiring was already in place,” and “[t]he technicians were

not even required to make a hole in a wall for most jobs,” but rather “generally

placed [the wire] along a wall and not in to a wall.” Special App’x at 58. Finally,

upgrades would involve “drill[ing] a hole occasionally,” and on less than half of

jobs, running wire along the wall and nailing or stapling it down. Special App’x

at 58. Based on these factual findings, the arbitrator correctly concluded that

Midtown’s work di d not involve using materials to “form, make or build a

structure,” Indio Paint

, 156 N.L.R.B. at 959, nor did it involve “structural additions

and alterations,” id

. at 957; see also 29 U.S.C. § 158(e), supra note 3.

Our analysis is consistent with the NLRB’s decision in Adderley Industries,

Inc. & Local 1448, International Brotherhood of Elect r ical Workers

, No. 4

‐ CA

‐ 23435,

1996 WL 33321485 (N.L.R.B. Div. of Judges Oct. 2, 1996), in which the NLRB held

that cable installation was not work in the building and construction industry for11 purposes of the Taft

‐ Hartley Act. In doing so, the NLRB distinguished installation

from “pre

‐ wiring” or “going into a building that’s under construction and running

the wires before the walls are up,” which “at least arguably constitutes work in the

building and construction industry” for the purposes of the Act. Id

. Here, as noted

above, Midtown al most never worked on new construction projects, and there was

no evidence of its employees’ involvement with pre

‐ wiring or installing materials

that would “form, make or build a structure.” Indio Paint

, 156 N.L.R.B. at 959.

Thus, consistent with the analysis in Adderley

, Midtown’s cable installation did not

involve wor k in the “buil ding and construction industry” under Section 1383(b).

Dycom argues that, because the NLRB in Indio Paint also looked to the

Standard Industrial Classification Manual, published in 1957, for technical usage,

we should reference the modern

‐ day version of this resource, now called th e

North American Industrial Classification System (“NAICS”). The NAICS, a joint

publication of the United States, Mexico, and Canada, is a “system of classification

of economic activities that makes the industrial statistics produced in the three

countries comparable.” NAICS, United States, Executive Office of the President,

Office of Management and Budget, 1 (2022). The NAICS classifies several

categories of cable installation contractors ( e.g.

, communications equipment12 installation

‐ contractors, alarm installation

‐ contractors, and cable television

hookup

‐ contractors) as specialty contractors in the construction industry. Id

. at

132. Although the NLRB in Indio Point referred to the predecessor version of the

NAICS, that reference was in conjunction with other technical sources and

common usage to obtain a “consensus” about the definition of the building an d

constructi on industry. 156 N.L.R.B. at 959. We find this non

‐ labor law source,

which classifies economic activities for statistical purposes completely unrelated

to the purpose of the exemption at issue here, not to be dispositive as to the scope

of the building and construction exemption under Section 1383(b). 4 In sum, we

are not persuaded that the recent sources Dycom cites should be used to expand

the definition established in Indio Paint for purposes of Section 1383(b), and we

4 We also decline to utilize the updated regulations issued by the Department of Labor under the

Davis

‐ Bacon Act, which regulate the wages owed for work performed on federal construction

contracts, in part “to modernize the definition of the terms ‘building or work’” to include

broadband installation, as well as certain energ y infrastructure projects. Updating the Davis

‐

Bacon and Related Acts Regulations, 88 Fed. Reg. 57526, 57597 (Aug. 23, 2023). To the extent the

broad definition utilized by the Department of Labor under the Davis

‐ Bacon Act supports

Dycom’s position, we find that it provides insufficient basis to override the definition articulated

by the NLRB in Indio Paint and appl ied in Adderley

.13 conclude that under that definition, Midtown’s work did not qualify for the

exemption.

CONCLUSION

We have considered Dycom’s remaining arguments and find them to be

without merit. Accordingly, we AFFIRM the judgment of the district court.