Amicus Curiae Brief — Central States, Southeast & Southwest Areas Pension Fund v. Central Transport, Inc.

WOTION FILED

JUL 27 984

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

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

—

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

SHELDON M. MEIZLISH*

1166 First National Building

Detroit, Michigan 48226

Phone: (313) 964-3430

MARSTON, SACHS, NUNN, KATES,

KADUSHIN AND O'HARE, P.t

(BY: ROLLAND R. OHARE)

1000 Farmer Street

Detroit, Michigan 48226

Phone: (313) 965-3464

Counsel for Amici

*Counsel of Record

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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.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

MOTION OF BRICKLAYERS FRINGE BENEFIT

FUNDS — METROPOLITAN AREA, ET AL., FOR

LEAVE TO FILE BRIEF AMICI CURIAE

The Bricklayers Fringe Benefit Funds Metropolitar

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 ir

this case as amici curiae for purposes of submitt'ng the

attached brief

The amici are eomposite 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.

186, and the Employee Retirement Income Security Act of

1974, as amended, 29 U.S.C. 91001, ef se q In this respect, the

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 mult

emplover, jointly administered employee benefit plan created

by collective bargaining

Amici believe that the Sixth Circuit’s opinion of January 20.

1983, was, at the vers least, overly broad and, by its sweep.

will, unless corrected, do serious damage to the public polices

favoring protection of emplovee henefit plat ~ and to the statu

| Bricklaye Fringe Bene I I MM i \rea If

Brickla rs Pens rr Fund Metr ta Area, tl B Kiaver

und Trowel Trades International Px Fund, the Bricklavers Holida

Trust Fund — Metropolitan Area, the Detroit and Vicinity Trowel Tra

Health and Welfare | : Br ver Apprentices

‘ +?

The “Carpenters Fringe Benefit Fund Detroit and \ '

he Carpenters P Trust | i Det and \ he Carpe

el \ acat und Hi ia rust | ! Lye and \ 4 i

( ary ers Health and Welfare I Det i '

The “¢ Ma Fringe B fit | Detroit and \

ide the Ceme Masons Ps lr I i Det und \ t

Brickla ! ind Trowe Trad I rna | P I ]

{ f Ma Vaca und Hi av | | ! Det i \

nd t? Detr i \ lrow Trace Health and Welfare I

The “Electrical Workers Fringe Benefit | Local | mn #58

IBEW nelude the Electrical Workers Pe n Trust Fu f Loca

#58. IBEW. the Electrical Workers Joint Board of Trustees Vaca

I ble ul Worke irance Fund, the Suppleme ,

Uonemy ment Benefit Fund f the Electrical Industry, Detroit, Mic!

ya Na al Fol ! il Benet | 1 and ti | Appr

ra g Trust |

The “Laborers Fringe Benefit | Detr , \

Laborers Pe I Detroit a ' Lat

Vaca und H la i: i L i \ i La

rv requirement. in furtherance of that poliev. that such plans

properly funded. There are critical policv and practical cor

ierations which amici beleve the Court of A} peals either

failed to consider or misapprehended. In the interests of the

irticipants Tor w hose sole and exe isive benefit il ( ePXNLTST

i? 1 Tre nousandas oT workers and heneft CIArIes sin i? ' ’

ited 1 reques Pave ft file ting ittached bmet

ae spectfu hal ttad

SHELDON M. MEIZLISH*

1166 First National Build

Detroit, Michigan 48226

=

VARSTON, SACHS, NUNN, KATES

KADUSHIN AND OHARE, P.

BY: ROLLAND R. COHAREI

(uw) }- armer Street

Detroit, Michigan 48226

Phot 5153) 965-3464

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,

va

CENTRAL TRANSPORT, ING

et al...

Respondents

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF OF BRICKLAYERS FRINGE BENEFIT

FUNDS — METROPOLITAN AREA, ET AL..,

AMICI CURIAE

Amici, Bricklayers Fringe B fit Funds Metroy al

Area, Carpenters Fringe Benefit | is Detroit and Vi

{ ere Ma KY ge Benefit Fund Det: ina \

ke trica \\ kers Fy pe Benet Funds ft | i

#58, IBEW, and Laborer Fringe Ben Fur

Detroit and Vicinit ar’ site i s*' To? ! is r

yo ind welfare benet ins ng workers )

I rt us : heastern Michigan a al

resp neir ta 5. A were established under and ar

dn ered pursua ™ J f the Labor-Managemet

Rela Act of 1947, as amended (“LMRA”), 29 U.S.C. $18

ind the Emplovee Retirement Income Security Act of 1974. a

umended (“ERISA”), 29 U.S LOO1, ef se

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NO. 81-3307

UNITED STATES COU RT 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 Appellants,

BAKER CEMENT CONTRACTORS, INC

Defendant -Appellee

ORDER

(Filed July 6, 1982

Before: ENGEL and BROWN, Circuit Judges; and GUY

District Judge.”

*Honorable Ralph B. Guy. Jr.. District Judg,, United States Distnet Court

for the Faster 1) ried f Michigar sitting t lesignat

‘de

wii

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 distnet court

Plaintiffs are the Trustees of the Ohio Laborers’ District

Couneil-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

emplover, 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 Counei! of Ohio

of the Laborers’ International Union of North America, AFL

CTO. an association of a local laborers’ union in Ohne.

The defendant is an Olio corporation engaged in the building

and construction industry within the State of Ohio

On June 1. 1975. defendant became signatory to a collective

hargaining agreement that had been negotiated hetween the

Butler County Area Contractors’ Association of Hamilton,

Ohio. an assomation of emplovers and Laborers’ Local No. 534,

a local union affiliated with the Ohio Laborers’ District Council

This colleetive bargaining agreement obligated the defendant

fey VF nAKe coynytra i? ’ ’ certail trial finds on hehalf of ife«

aborers who work within the geographical jurisdiction of

Toeal 534. whether or not such laborers were in fact union

members. Subsequent to entering into this collective bargaining

agreement, the defendant, on Or toher 13. 1975, executed another

agreement ent tied “Assent of Participation,” which agreement

hound the defendant insofar as trust fund contributions were

concerned to the Ohio Laborers’ District Counei! and the local

minions of which it is comprised. Pursuant to these two agree

ments. the defendant made monthiv fringe henefit contributions

to the trust funds in question on hehalf of those members of

95, 1977

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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

eould 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 hecause

there was a Union security agreement in the collective bar

gaining agreement requiring all laborers to he 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 ....d identify

those emplovees performing laborers’ work on whose behalf

eontributions had to be made. This conclusion ts fatally defective

for two reasons

First. defendant's collective bargaining agreement with Local

534 contained a “grandfather clause” which required that only

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 Local 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 umions

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

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direct contractual relationship with these umons 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 respor

sibilities under ERISA

Rv wav of further guidance to the parties on remand, this

court would further note that it would not appear that a

veferral 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 emplovee is performing laborers’ work Such a

determination may or may not be properly referrable to

arbitration based upon the provisions of the particular bar

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ENTERED RY

ORDER OT

THE COURT

IOHN P. HEHMAN

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