# Amicus Curiae Brief — Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0016%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1985 - **Citation:** 472 U.S. 559 ## Text LY94 No. 82-2157 IN THE Supreme Court of the United States OCTOBER TERM, 1982 rr CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND and CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE FUND, Petitioners, va. CENTRAL TRANSPORT, INC., et al., Respondents. ee MOTION OF BRICKLAYERS FRINGE BENEFIT FUNDS — METROPOLITAN AREA, ET AL., FOR LEAVE TO FILE BRIEF AMICI CURIAE BRIEF OF BRICKLAYERS FRINGE BENEFIT FUNDS — METROPOLITAN AREA, ET AL., AMICI CURIAE ee SHELDON M. MEIZLISH* 1166 First National Building Detroit, Michigan 48226 Phone: (313) 964-3430 MARSTON, SACHS, NUNN, KATES, KADUSHIN AND O'HARE, P.C. (BY: ROLLAND R. O'HARE) 1000 Farmer Street Detroit, Michigan 48226 Phone: (313) 965-3464 Counsel for Amici "Counsel of Record THE INLAND PRESS, DETRUIT, MICHIGAN He o> // BEST AVAILABLE COPY TABLE OF AUTHORITIES Cases Page Ambromovage v Thomas, 2(US '. M.D. Pa Civ. #8796. 19R2 | Central States, Southeast and Southwest Areas Pension Fund v CRST, Inc., 641 F.2d 616 (C.A. 8, 1981 Hughes v Baker Cement Contractors. Inc.. C.A. 6. No. 81 3307 (July 6, 1982) (unreported)* Jim McNeff, Inc. v Todd, US 103 S.Ct. 1753, 75 L.Ed.2d 830 (1983 Laborers’ Fringe Benefit Funds Detroit and Vicinity \ Northwest Concrete & Construction. Inc. US.D.C.. E.D Mich., Civ. #78-71765 (June 25, 1979) (unreported); rev'd 640 F.2d 1350 (CA. 6. 198] Laborers’ Pension Trust Fund Detroit and Vicinity, et al. v Frank Bizzocchi Cement Construction Company, Inc., U.S.D.C., E.D. Mich., Civ. #74-72450 (Oct. 29, 1975 unreported Lathers Local 42 and Lathinag Contractors Association of Southern California, 223 NLRB 37 (1976) Local 164, Brotherhood of Painters v National Labor Rela tions Board, 293 F 2d 133 (C.A.D.C., 1961) National Labor Relations Board v Amar Coal Company, $53 U.S. 322. 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981 Robbins v Prosser’s Moving and Storage Company, 700 F.2d 433 (C.A. 8, 1983 ; 2-3, 7 Statutes Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. 41001. ef seq 1, passim Labor-Management Relations Act of 1947, as amended $302. 29 U S.C. $186 1, passim Regulations Department of Labor Prohibited Transaction Exemptior 76-1 (March 23, 1976), 41 FR 12740 *Reprir ted in the appendix to this bref ] No. 82-2157 IN THE Supreme Court of the United States OCTOBER TERM, 1982 CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND and CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE FUND, Petitioners, vs CENTRAL TRANSPORT, INC., et al., Respondents. MOTION OF DU RICKLAYERS FRINGE BENEFIT FUNDS — METROPOLITAN AREA, ET AL., FOR LEAVE TO FILE BRIEF AMICI CURIAE The Bricklayers Fringe Benefit Funds — Metropolitan Area, the Carpenters Fringe Benefit Funds — Detroit and Vicinity, the Cement Masons Fringe Benefit Funds — Detroit and Vicinity, the Electrical Workers Fringe Benefit Funds of Local Union #58, IBEW, and the Laborers Fringe Benefit Funds — Detroit and Vicinity move to intervene in this case as amici curiae for purposes of submitting the attached brief. The consent of the attorney for the petitioners has been obtained. The consent of the attorneys for the respondents was requested but refused. The amici are composite names for trust funds! established under, and administered pursuant to, Section 302 of the Labor- Management Relations Act of 1947, as amended, 29 U.S.C. $186, and the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. §§1001, et seq. In this respect, they have the same legal status as petitioners. Amici operate to provide pension, medical, hospitalization, dental, holiday and vacation pay, optical and other benefits to workers in the con- struction industry in southeastern Michigan. Each is a multi employer, jointly administered employee benefit plan created by collective bargaining. Amici believe that the Sixth Circuit’s opinion of January 20, 1983, was, at the very least, overly broad and, by its sweep, will, unless corrected, do serious damage to the public policy favoring protection of employee benefit plans and to the statu 'The “Bricklayers Fringe Benefit Funds — Metropolitan Area” include the Bricklayers Pension Trust Fund Metropolitan Area, the Bricklayers and Trowel Trades International Pension Fund, the Bricklayers Holiday Trust Fund Metropolitan Area, the Detroit and Vicinity Trowel Trades Health and Welfare Fund, and the Bricklayers Joint Apprenticeship Committee The “Carpenters Fringe Benefit Funds — Detroit and Vicinity” inelude the Carpenters Pension Trust Fund — Detroit and Vicinity, the Carpen ters Vacation and Holiday Trust Fund — Detroit and Vicinity, and the Carpenters Health and Welfare Fund — Detroit and Vicinity The “Cement’ Masons Fringe Benefit Funds Detroit and Vicinity” include the Cement Masons Pension Trust Fund — Detroit and Vicinity, the Bricklayers and Trowels Trades International Pension Fund, the Cement Masons Vacation and Holiday Trust Fund — Detroit and Vicinity, and the Detroit and Vicinity Trowel Trades Health and Welfare Fund The “Electrical Workers Fringe Benefit Funds of Local Union #58, IBEW” include the Electrical Workers Pension Trust Fund of Local Union #58, IBEW, the Electrical Workers Joint Board of Trustees Vaca tion Fund, the Electrical Workers Insurance Fund, the Supplemental Unemployment Benefit Fund of the Electrical Industry, Detroit, Michi gan, the National Electrical Benefit Fund, and the Joint Apprenticeship Training Trust Fund The “Laborers Fringe Benefit Funds — Detroit and Vicinity” include the Laborers Pension Trust Fund Detroit and Vicinity, the Laborers Vacation and Holiday Trust Fund — Detroit and Vicinity, and the Labor ers Metropolitan Detroit Health and Welfare Fund LLL LT LL TT TS EA eT TS SE ET NS 3 tory requirement, in furtherance of that policy, that such plans be properly funded. There are critical policy and practical con siderations which amici believe the Court of Appeals either failed to consider or misapprehended. In the interests of the participants for whose sole and exclusive benefit amici exist and the thousands of workers and beneficiaries similarly situ ated, amici request leave to file the attached brief. Respectfully submitted, SHELDON M. MEIZLISH* 1166 First National Building Detroit, Michigan 48226 Phone: (313) 964-3430 MARSTON, SACHS, NUNN, KATES, KADUSHIN AND O'HARE, PC. (BY: ROLLAND R. O'HARE) 1000 Farmer Street Detroit, Michigan 48226 Phone: (313) 965-3464 Counsel for Amici *Counsel of Record Dated: July ® 19R3 No. 82-2157 IN THE Supreme Court of the United States OCTOBER TERM, 1982 ee CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND and CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS HEALTH AND WELFARE FUND, Petitioners, V8. CENTRAL TRANSPORT, INC., et al., Respondents. ——— BRIEF OF BRICKLAYERS FRINGE BENEFIT FUNDS — METROPOLITAN AREA, ET AL., AMICI CURIAE em Amici, Bricklayers Fringe Benefit Funds — Metropolitan Area, Carpenters Fringe Benefit Funds — Detroit and Vicin itv, Cement Masons Fringe Benefit Funds — Detroit and Vic inity, Electrical Workers Fringe Benefit Funds of Local Union #58, IBEW, and Laborers Fringe Benefit Funds — Detroit and Vicinity, are composite names! for various emplovee pen sion and welfare benefit plans covering workers in the con struction industry in southeastern Michigan and, in many respects, their families. All were established under and are administered pursuant to the Labor-Management Relations Act of 1947, as amended (“LMRA”), 29 U.S.C. $186, and the Emplovee Retirement Income Security Act of 1974, as amended (“ERISA”), 29 U.S.C. §$1001, et seq. See note 1 in the (attached) Motion of Bricklayers Fringe Benefit Funds Metropolitan Area, et al., for Leave to File Brief Amici Curiae. The interest of the amici is stated in the motion LEE TE LS A sc ~ Amici have not made a detailed review of the trial court record in this case. Insofar as the decision of the Court of Appeals for the Sixth Circuit rested on the details of the doe uments submitted or the particular agreed-upon relationships among the parties, we have no comment to make. It is the breadth of the opinion which concerns us.2 We are fearful that application of the principles set out there will, at least in the construction industry, frustrate our efforts to conform to the standards of diligence in collecting contributions imposed by statute and regulation. This brief will be limited to a brief discussion of the matters which we urge need to be given greater consideration, particu larly in respect to industries like the construction industry, than they were in the Sixth Circuit’s opinion 1. As a prefatory comment to our discussion, it should be noted that, in reaching its conclusion, the panel drew heavily upon the Eighth Circuit’s decision in Central States, Southeast and Southwest Areas Pension Fund v CRST, Inc., 641 F.2d 616 (1981). After the Sixth Cireuit’s decision in the instant case, the Eighth Circuit, en banc, overruled the CRST holding, Rob bins v Prosser’s Moving and Storage Company, 700 F.2d 433 (Feb. 16, 1983). Although the narrow issue of the Robbins case was whether the trustees of benefit funds were required to exhaust arbitra tion provisions of a collective bargaining agreement before instituting a collection suit, many of the policy considerations involved in this case were discussed at some length in the Eighth Circuit’s en bane opinion. In deciding Robbins, the Court took cognizance of the Sixth Circuit’s opinion in the ?The Sixth Circuit's panel decision in the instant matter appears to be dia metneally in conflict with another panel's (unreported) decision. See Hughes v Baker Cement Contractors, Inc. C.A. 6, No. 81-3307 (July 6, 1982), reprinted in the appendix to this bref ‘The Eighth Circuit stated, “On reflection, however, we believe that [the cited cases including CRST) were not correctly decided.” 700 F.2d. at 438 See also the entire discussion at p. 438 of the opinion = tO a instant case. Robbins, 700 F.2d, at 445, n. 7 (dissenting opinion 2. ERISA imposes a fiduciary duty upon trustees of employee benefit plans to collect contributions. One of the earliest inter pretative statements concerning ERISA by the Department of Labor or the Internal Revenue Service, the two agencies charged by the statute with enforcement in respect to continu ing plans, dealt with this subject. While setting out the condi tions under which trustees could agree to installment payment plans of overdue contributions from delinquent emplovers, the Department of Labor made it plain that such agreements wer extensions of credit prohibited by ERISA and that trustees were required to make “systematic, reasonable and diligent efforts to collect delinquent contributions.” Prohibited Trans action Exemption 76-1 (March 23, 1976), 41 FR 12740. One of the necessary elements of any systematic effort by multi employer fringe benefit programs to eollect amounts owing which must, after all, be determined before they can be col lected is the audit Typically, multi-employer plans such as petitioners and amc! depend upon a s\ stem of emplover self-disclosure Weekly or monthly, each emplover fills out report forms setting out the names of the emplovees performing bargaining unit work, hours worked and/or wages earned and such other informa tion as is required for the calculation of contributions due and for the administration of the fringe benefit program. The employer then calculates the contribution due (ordinarily, ar amount equal to a percentage of wages or an amount multip hed by the number of hours, days or weeks worked or paid, depending upon the agreed-upon formula) and mails the com pleted form and a check for the amount shown to be due to the fund office or a depository bank The fund ordinarily has no method of independently verif\ ing or challenging the amounts said by the emplover to be due All of the information is in the emplever’s possession. None is in the fund's SSN eS eee 6 ee EE EE a LL EE TT A | means for workers in those industmes and to ar hiv ve a measure of the healt} and retire ech workers involved it arge single emplover relevant characteristics of the eo struction t aril operate | i vidual carpenters or rT abore rs nay work Ta? rie (>? dozens ft vear. If there is a hiatus in available work at ise of supply or seheduling problems (not worker mav find a short job on another job » different emplover ra different econ emi e) nefit funds w rainal Nave f Way ) ' igiver participant w rkey? s emi loved Or oy s em ved int ths empl ey eontmbu 4 ea The ty msient nature i ern piovmen? ? 7 ther factor wt Paves t he funds il t he er probitv and accura and requires broad niar reditors and that the debt “has a | tnat the Dart \ VA t} nar respons ry ?\ Tov tort Tay , - 4 ave apparel ; 1 ty ? A +} »w We , TA , | ’ " , re Lab my Ts. Fringe Benefit Funds Detroit and Vorthwest Concrete & Construction. Ini I'S 1)¢ (1 #78.71765 Glune 25. 1979 rev d on other 40 F2d 13850 (C.A. 6. 1981). The trustees have mw th the estab nment of t he hasi ceontractua rwhp h obligate - t he empiovet! They cannot reTuss al CTP t wi I nas gyned t he ree site eoOller ‘ ing agreement evel | they helheve that emplover to ¥rresDo ryle To the extent that credit extended ome mn the ter | tne exte? on and rile e bargaining agreement or the applicable trust pect i bp? ae, tM innot make a demand ; empiovel Tove rey, rift ? ) ir’ navment ft ting egardlk t } ‘ mpecul is the emplover n git ry tre 1? i”: i nave me power ft i cet tiv cy ? Dower ’ tive ’ fruction ncust? Tle? exagverated, tne dbenewtit Tund ive none. f the ¢ rt of Apnea iggest that ther ‘ rie t thy ‘ TT witty oY infered f eat th respect. we helieve that the itor re ? | vrart the in? Tated. The i? } mda the Hers , neers 1 nave " wen | nrers | { Drove pal pur ‘ f the Taft-Hartl requirement management admit tration of ch Tunds was !t e level of fund-union identity and ERISA ha tT ¢ eT earer That Tmistes must act Tor t he ner art nants ; , Ting mw? r ting Compan Ne a | | Labor Relations Board vy Amar Coal Company . irga yg age ' i ie - ts i # } } }? \ . hy } ("A Tye " | j j j ' ; . j f ’ NITLRE ** LL a 153 U.S. 322, 101 S.Ct. 2789, 69 L.Ed.2d 672 (1981), Hughes \ Baker Cement Contractors, Inc., supra’, Robbins, 700 F 2d, at 139-442. and Ambromovage v Thomas, 3 EBC 1872, 1878, 1883 1886 (TU S.D.C.. M.D... Pa.. Civil #8796, July 9, 1982) B. The “estoppel argument” for subsequently denying bene fits to a worker whose emplover has cheated, with or without the employee's connivance, can hardly justify the panel's con clusion. First, it is far from certain that this “defense” is avail able to the funds when an employee sues for benefits. See, e.g Robbins. 700 F.2d. at 441. Thus. to use the Eighth Circuit's expression, the funds are “in danger of being whipsawed” Ibid. Second, it fails to take into consideration the inequality of the distribution of power between emplover and emplovee particularly during hard times). The employer, in clear viola tion of the agreement, can force an employee as a condition of keeping his job not to complain about the emplover’'s failure to make necessary contributions, a danger of great magnitude when the economy is in a state of recession or depression Finalls t Ta to take into consideration the fact that some emplovees are too uneducated either generally or in the mech anisms Dv whieh ther henefit funds operate, or too unsopnis ticated to know that they are being cheated (. For practical purposes, the recoupment remedy suggested hy the Sixth Cireuit pane! simply does not exist Ry the time e cause will have accrued, there is a distinct possibility that the emplover will no longer be in business or have sufficient assets to satisfy anv judgment. The construction industry | un industry of transient emplovers as well as transient emplovees i? ndustryv in addition to which multiple corporate or other forn for a single emplovet! with a the llega problen oT cle ryt it ve at 7 Al . ection rT? at nr ys Aare COMMo};r piace If ™w *¢ ™ also an industry in which undercapitalization of a singl empiover, known or unknown to its emplovees. is masked bh the endemic division of capital (lender. develoner. builder) ar the emploving unit (contractor. subeontractor). If the emplover s still around and collectible when the fur ds come look ng for nin the pring Ipal deren se the empiover wil 1Se s. OF COUTSE ‘estoppel” 7. The audit is the most efficacious means of assuring con phance wit! the fri pe henetit provisions of t hve eontract Ty the extent the auditor is deprived of the necessary tools. cheat ng more kelv to vo indetected Ty the extent it does. the actuaria tour dat OT of the particular fur a e ft} reatened. a heneficiarr face a possible oss or diminutior if henefit and/or those empiovers who are fully meet ng their fringe benefit funding obligations are placed at a competitive disad antage in the short run and at msk of having to make wi funding shortfa caused bv the cheater nthe iong rut 8. Granting the auditor more or less unrestricted acce t in emplover Nook ind records ma we recognize, give rise to the possibilit if abuse or to a potential invas Tr privas fr ner ered emplover Where thes ire real no ryilit vy ind not ruses f stil lenial of access to revelatory record the District ¢ rt has ample power to fashion an appropriat: nrotert roer 4 CONCLUSION Amici respectfully submit that the Sixth Circuit, focusing 00 exclusively on the possibilities of abuse and invasions of privacy, failed to give appropriate consideration to the pract eal and policy difficulties which would be caused by the apy eation of the restrictive principles it enunciated. The focus, we irge, more proper!\ belongs on protecting the participants of emplovee benefit plans and safeguarding the fiscal integrit ! those plans. That court’s decision, if allowed to stand, would TY aftrate t? aT | ity { Tw ( eT lt ated ’ ERISA The petition for a writ of certiorari should be granted Resper tfullv supmitted SHELDON M. MEIZLISH"* 1166 First National! Building Detroit. Michigan 4822¢ Phone: (331) 964-3438 MARSTON, SACHS, NUNN, KATES KADUSHIN AND O'HARE, P< BY: ROLLAND R. OHAREI 1OO0 Farmer Street Detroit. Michigan 48226 Phone: (313) 965-3464 APPENDIX lf FUSS. ¢ rt of Apnea for t} “Siwthy € ‘ve H uahe Baker Cement ¢ nrractors ly \ ~] ii | ‘ i™ la NO. 81-3307 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT THURMAN HUGHES, ANTHONY D. LIBERATORE, MARTIN MASON, CHARLES PEARL, RICHARD STANDER, JR. PAUL SWEITZER, DREXEL J. THRASH and RICHARD L. WALLER, TRUSTEES of the OHIO LABORERS’ DISTRICT COUNCIL-OHIO CONTRACTORS’ ASSOCIATION INSURANCE FUND; and W. W. LATHROP, JR., JAMES BYRD, DONALD W FITTON, JR.. FORREST W. HUFF, TOM MOORE, DREXEL J. THRASH, CHARLES McKEE, and JOHN CALDWELL, TRUSTEES of the LABORERS’ DISTRICT COUNCIL AND CONTRACTORS’ PENSION FUND OF OHIO; and W. JOE NIEDHARDT, DREXEL J. THRASH, MARSHALL L. FLYNN, JACK E. KUEBLER, AMOS JACKSON, ROBERT F. BLIEILE, GERALD JONES and WILLIAM COPELAND, TRUSTEES of the OHTO LABORERS’ TRAINING AND UPGRADING FUND, Plaintiffs-A ppellants, VS. BAKER CEMENT CONTRACTORS, INC. Defendant A ppe llee ORDER (Filed July 6, 1982) Before: ENGEL and BROWN, Circuit Judges; and GUY, District Judge.* *Honorable Ralph B. Guy, Jr., District Judge, United States District Court for the Eastern District of Michigan sitting bv designation Je wa This matter is before this court as a result of plaintiffs’ appeal of a summary judgment granted in favor of the de fendant in the district court. Plaintiffs are the Trustees of the Ohio Laborers’ District Council-Ohio Contractors’ Association Insurance Fund, the Laborers’ District Council and Contractors’ Pension Fund of Ohio, and the Ohio Laborers’ Training and Upgrading Trust Fund. These three funds are collectively bargained, multi employer, Taft-Hartley fringe benefit funds established by agreements and declarations of trusts between the Labor Relations Division of the Ohio Contractors’ Association, the Associated General Contractors of America, Inc.. and Em plovers’ Association and the Laborers’ District Council of Ohio of the Laborers’ International Union of North America, AFL CTO, an association of a local laborers’ union in Ohio. The defendant is an Ohio corporation engaged in the building and construction industry within the State of Ohio. On June 1, 1975, defendant became signatory to a collective bargaining agreement that had been negotiated between the Butler County Area Contractors’ Association of Hamilton. Ohio, an association of employers, and Laborers’ Local No. 534, a local union affiliated with the Ohio Laborers’ District Council This collective bargaining agreement obligated the defendant to make contributions to certain trust funds on behalf of its laborers who work within the geographical jurisdiction of Local 934, whether or not such laborers were 1n fact union members Subsequent to entering into this collective bargaining agreement, the defendant, on October 13, 1975, executed another agreement entitled “Assent of Participation,” which agreement bound the defendant insofar as trust fund contributions were ceoneerned to the Ohio Laborers’ District Council and the local unions of which it is e mprised Pursuant to these two agree ments, the defendant made monthly fringe benefit contributions to the trust funds in question on behalf of those members of its work force performing laborers’ work. On July 25, 1977, 3a plaintiff Trustees, pursuant to the relevant contract provisions, requested permission of defendant to perform an audit of its payroll records in accordance with the above-referenced agree ments. On November 30, 1977, the audit was commenced but was not completed when the defendant advised the auditor that it would not provide payroll or other related records for employees other than those identified by the defendant as laborers on whose behalf a monthly contribution was owed. As a result of this refusal to make the requested records available, the plaintiffs instituted this action against the defendant At the final pretrial conference held in the trial court, the parties were directed by the district judge to present this matter on cross-motions for summary judgment rather than by way of trial. Pursuant to this direction, cross-motions for summary judgment were filed and, on April 21, 1981, the district judge entered an order of summary judgment essentially finding in favor of the defendant Plaintiffs. defendant. and the trial court were all! in agreement that the plaintiffs are entitled to review such records as are necessary to fulfill their obligations under the collective bar gaining agreement and the trust fund agreements. By impli cation at least, the parties are also in agreement that sufficient information was not furnished by the defendant to the plaintiffs in order for them to make a complete determination as to whether fringe benefit funds are being contributed by the defendant as required. The district court held, however, that the release of all the information requested by the plaintiffs would necessarily require the disclosure of additional infor mation which was not needed by the plaintiffs and which the eourt deemed confidential in nature insofar as the employer was coneerned. The trial court further concluded that the information that the Trustees needed was available from another souree, i.e.. the Union, and that therefore the missing information that the needed to complete their audit could be obtained by resorting to the Union and its records ta Although this appeal poses interesting questions which are being raised with increasing frequency as a result of the passage of the Employees’ Retirement Income Security Act of 1974 (ERISA), this court concludes that it is unnecessary to reach those questions in order to determine this appeal. The decision of the trial court that the plaintiffs were entitled to the type of information that they sought in this lawsuit but could obtain it from other sources is erroneous and not sup ported by the record The trial court recognized that plaintiffs should not be wholly dependent upon the defendant’s identification of who was working as a laborer and thus entitled to fringe benefit fund contributions. The court concluded, however, that because there was a Union security agreement in the collective bar gaining agreement requiring all! laborers to be Union members and, further, because the collective bargaining agreement provided for union stewards to be at each job site, that the Union would thus be able to definitively ascertain and identify those employees performing laborers’ work on whose behalf contributions had to be made. This conclusion is fatally defective for two reasons First, defendant’s collective bargaining agreement with Local 934 contained a “grandfather clause” which required that onl those laborers hired after the effective date of the agreement, June 1, 1975, become members of Local 534. Thus, the de fendant could have non-Union laborers on its payroll without being in violation of its agreement with Loeal 534. Second, although the Assent of Participation agreement signed by the defendant also obligated it to make trust fund contributions in the geographic areas covered by Locals 423. 410, and 265, the defendant was not in fact signatory to any collective bargaining agreements with these other three unions Thus, although the standard collective bargaining agreements of Locals 423, 410, and 265 contained “union security clauses,” they were not binding upon the defendant because it had no Ja direct contractual relationship with these unions. Thus, the defendant could perform work in the geographic areas of these unions and use non-union labor. These two examples clearly demonstrate that there were at least two groups of employees of indefinite size for whom the employer was required to make trust fund contributions but whose eligibility for same could not be determined from Union records. In addition, undue emphasis is placed upon the fact that in the geographic area under the jurisdiction of Local 534 there was to be a union steward on the job. One of the significant purposes achieved by the passage of ERISA was to set up independent trust funds and trustees with fiduciary respon sibilities. This was for the purpose of protecting the employee against both management and the union. To suggest that the union steward is the ultimate safeguard as to who is doing laborers’ work overlooks the fact that Congress, by the passage of ERISA, legislatively determined that employee retirement income and fringe benefits should not be left to the protection solely of management or union, but required the protection of an independent board of trustees. Since the major premises on which the trial court determined that the plaintiffs could in fact achieve access to the information they needed are incorrect, it is necessary to reverse the sum mary judgment by the district court and remand for such further proceedings as will enable the plaintiffs to secure the information necessary for them to meet their fiduciary respon sibilities under ERISA By way of further guidance to the parties on remand, this court would further note that it would not appear that a referral of this matter to arbitration is an appropriate vehicle for the resolution of this dispute at its current level. It may be that ultimately the parties will have a disagreement as to whether a given employee is performing laborers’ work. Such a determination may or may not be properly referrable to arbitration based upon the provisions of the particular bar ha gaining agreements involved, but arbitration is not an appro priate vehicle for determining the nature and scope of the records to which plaintiffs should have access. The court would further note that the case of Central States. Southeast and Southwest Areas Pension Fund \ CRST. Ine 641 F2.d 618 (Sth Cir. 1981), appears to be distinguishable from the cas ENTERED BY ORDER OF THE COURT s/ JOHN P. HEHMAN Clerk --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0016%3A04. Public record. Not legal advice.