Opposition Brief — Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co.

[7s at a ad

PY an

Bene Stk ar 7 Tarr Nos

m : eens te

re

No as2079 {lem mt

In THE

Supreme Court of the United States

Ocroser Term, 1985

LaBorers HEALTH AND WELFARE TRUST FUND

FOR NORTHERN CALIFORNIA, ef al.,

Petitioners,

Vv.

ADVANCED LIGHTWEIGHT CONCRETE Co., INC.,

Respondent.

BRIEF IN OPPOSITION TO

‘PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Morton H. ORENSTEIN

Maarkx S. Ross

(Counsel of Record)

Lisa S. SPANN

Schachter, Kristoff, Ross,

Sprague & Curiale

101 California Street

Suite 2900

San Francisco, California 94111

(415) 391-3333

Attorneys for Respondent

ADVANCED LIGHTWEIGHT

Concrete Co., INC.

I

QUESTION PRESENTED

Whether federal courts have subject-matter jurisdiction

over an action to collect trust fund contributions allegedly

accrued after the expiration of the collective bargaining agree-

ment which created the obligation to make contributions.

i:

TABLE OF CONTENTS

QUESTION PRESENTED

OPINIONS BELOW

JURISDICTION

POPP P OOOO OS OOOO TOSSES ES OCT ESESSOESESSSSOSESEESOCOCSS

COPPP OOOO OOOOOODOOOOOOOOOOOOOSSSOS SS OOEOO ECOSOC OS SOOO CCOCCCS

COSSOSOSSOSSSOSSS SO SES SOS SSCS CCSOUSCCR SS SOSSSSSOESoSSSeCSeCSooeSS

COCO O POP OCOOOCOOCOSSO SSS OSESEOCEOOSCOSOOSSOSOSOCCC CS

COOOODOSASOSSOSOSSOSSLESESSSSSSORCSSESESOCCESSOOESOCSEOSSOSCOCCSoooeeS

TOOTH EEE T HEHEHE EE SEE EE EEE E SESE SEES

|. THE NINTH CIRCUIT’S DECISION COm-

PORTS WITH THE PURPOSES AND POL-

ICIES OF ERISA, AND DOES NOT RAISE

NOVEL ISSUES REQUIRING THIS

COE VED ccccscscsttidigulihdmmi es

2. THE TRUST FUNDS’ CLAIMS, IF ANY,

DERIVE SOLELY FROM THE NATIONAL

LABOR RELATIONS ACT AND FALL

WITHIN THE EXCLUSIVE JURISDICTION

OF THE NLRB

CONCLUSION

COPS STOS SSH OSOSESESOOSESS SSS SESESES SOS ES ESSE ESSCESS

COMPO SOSSOSOSOSSSSS SSS SSESSOSS CEES SOSSODOSSSOSSSeCNSESSESOSSOSOSooCCeS

TABLE OF AUTHORITIES

CASES PAGES

Alessi vy. Raybestos-Manhaitan, Inc., 451 U.S. 504 ,

Ee

‘ement Masons Health and Welfare Trust Fund v.

erirkwood- Bb, Inc., 520 F.Supp. 942 (N.D.Cal. 1981),

aff'd, 629 F.2d 641 (9th Cir. 1982) .o.....ecccceseseseseeeeeeeees 3

Kaiser Steel Corporation v. Mullins, 55 U.S. 72 (1982) ..... 5,6

Mo-Kan Teamsters Pension Fund v. Botsford Ready Mix

Co. 605 F.Supp. 1441 (W.D.Mo. 1985) ..........cccccecceeeees 5,6

Moldovan v. Great Atlantic & Pacific Tea Company, Inc., -

790 F.2d 894 ( 3rd Cir. 1986) .0........eceeeccceeeeeeeeceeseeereeeeeee ‘

NLRB vy. Alva Alien Industries, Inc., 369 F.2d 310 (8th :

EEE EE

NLRB v. AMAX Coal Co., 453 U.S. 322 (1981) ................ 4

NLRB v. Columbian Enameling & Stamping Co., 306 U.S. .

LS SELL

NLRB v. Katz, 369 U.S. 736 (1962) .......ccccccccceeeeeeeeees ~ aa 6,7

Professional Employees Insurance Trust Fu

any Funds Abeiaienaiive Office, 783 F.2d 919 :

( 9th Cir. os oer emanate Jootieh - Aitienida

ttern Makers’ Pension Trust Fund v. ger Pattern

re orks Inc., 615 F.Supp. 792 (N.D.Ill. 1985) ................ 6

Peerless Roofing Co., Lid. v. NLRB, 641 F.2d 734 (9th ,

tai eeerterncernertinnmmenegntecscasseveeses ietate

San Diego Building Trades Council v. Garmon, 359 U.S. ,

EE ee

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) ............. 4,8

Taft Broadcasting Co., 163 NLRB 475 ( 1967)................... 7

.A. 198 Health & Welfare Education & Pension Funds v.

“oa lccsten” forvien Inc., 790 F.2d 423 (Sth ,

te A . aciee : a

Viggi. . Shenango China Division of Anchor Hocking

y . ant am, 750 E 2d fg | ae 4

iv

STATUTES PAGES

Employee Retirement Income Security Act of 1974

Section 502, 29 U.S.C. § 1132....ccccccccccccceccescecesceceeceeeee 2,3

Section SIS, 29 U.S.C. § 1145........c.cceccecccccesceceseoceseosese 3,4,5

Section 4212, 29 U.S.C. § 1392......ccccccccccccscceccoseececeeeee. 5

Labor Management Relations Act

Section SO1, 29 U.S.C. § 18S ......ccccececcececseceeceseeseseseose.s. 3

Multiemployer Pension Plan Amendments Act of 1980

i 3,5

National Labor Relations Act

Section 8(a)(5), 29 U.S.C. § 158(a)(5).ccccccccccscoceseee. 3,6

Section 8(b)(3), 29 U.S.C. § 158(b)(3) cccccccccccoccsseeee 2

Section 8(d), 29 U.S.C. § 158d) oooccccccccccccccceseceececeeee. 2,3,6,7

Section 10(b), 29 U.S.C. § 160(B) ooocccccccecccccsccececceee. 8

Section 10( f), 29 U.S.C. § 160( f) -.cccccccccccccceccoseceececeee 8

OTHER AUTHORITIES

Code of Federal Regulations

ae 8

I i 8

SE TS oe a 8

Ee es 8

Senate Committee on Labo

Cong. 2d r and Human Resources, 96th

S. 1076—The Multiemployer Pension Plan Amend-

ments Act of 1980: Summary and Aaiives of

Consideration, (Comm. Print, Apr. 1980)................ 5

Amie er

I

No. 85-2079

IN THE

Supreme Court of the Hnited States

Octoser Te2m, 1985

LABORERS HEALTH AND WELFARE TRUST FUND

FoR NORTHERN CALIFORNIA, ef ai.,

Petitioners,

Vv

ADVANCED LIGHTWEIGHT CONCRETE CO., INC.,

Respondent.

On Petition for a Writ of Certiorari to

the United States Court of Appeais

for the Ninth Circuit

BRIEF FOR ADVANCED

LIGHTWEIGHT CONCRETE CO., INC.

IN OPPOSITION

OPINIONS BELOW

The opinion of the Court of Appeals (Pet. App. A) is

reported at 779 F.2d 497. The Court of Appeals’ Order

denying Petitioners’ petition for rehearing and rejecting Peti-

tioners’ suggestion for rehearing en banc (Pet. App. C) was

filed on March 18, 1986. The Order of the United States

District Court for the Northern District of California granting

summary judgment (Pet. App. B) was filed on July 30, 1984.

and entered on July 31, 1984. The District Court’s Order is not

2

JURISDICTION

. Respondent accepts Petitioner’s statement of the Court’s

juriedictica.

STATUTES INVOLVED

Respondent accepts Petitioner’s statement of the statutes

involved. However, Respondent also supplements that state-

ment with Section 8(b)(3) of the National Labor Relations

Act, which is reproduced at Appendix A, infra.

STATEMENT

Prior to June 15, 1983, Advanced Lightweight Concrete

Co., Inc. ( “the Company”) was party to multiemployer collec-

tive bargaining agreements with the Laborers Union and the

Cement Masons Union (“the Unions”). Pursuant to these

contracts, the Company made monthly contributions on behalf

of its employees to the Laborers Trust Funds and the Cement

Masons Trust Funds (“the Trust Funds”). The Trust Funds

_are multiemployer pension plans within the meaning of the

Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. §§ 1001-1461, as amended by the

Multiemployer Pension Plan Amendments Act of 1980

(“MPPAA”).

On April 1, 1983, the Company offered to meet and

bargain for a new contract with the Unions as an individual

employer. The Company also notified the Unions that it would

not be bound by the multiemployer collective bargaining

agreements after their expiration date of June 15, 1983. Nei-

ther of the Unions made any attempt to commence negotiations

' The manner and extent to which the Unions availed themsleves of the

Company’s bargaining invitation is in dispute. While the Trust Funds claim

that no bargaining impasse was reached, the Company asserts the existence of

a bargaining impasse. Alternatively, the Company contends that the Unions

did not assert their bargaining rights in a timely fashion or did not meet their

bargaining obligations under Sections 8(b)(3) and (d) of the National

Labor Relations Act, which in either event privileged the Company to

unilaterally cease contributions, notwithstanding the alleged absence of a

bargaining impasse.

ve cette wis

3

On June 15, 1983, the old multiemployer collective bargai-

ning agreements expired without new agreements to take their

place. Accordingly, as of mid-June 1983, there existed no

contracts obliging the Company to continue contributions and

the Company ceased making contributions to the Trust Funds.

Beginning in December 1983, the Trust Funds filed a series

of suits against the Company for the post-June 15 contributions.

In each of these cases the Trust Funds claimed that the

Company’s actions violated Section 515 of the Employee

Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1145.

Jurisdiction was asserted under Section 502 of ERISA, 29

U.S.C. § 1132, and Section 301 of the Labor Management

Relations Act (“LMRA”), 29 U.S.C. § 185. The Company

denied that it was obligated to make contributions after June

15, 1983 and denied that the district court had subject matter

jurisdiction. Without reaching the first of these issues, the

district court granted the Company’s motion for summary

judgment based upon the exclusive jurisdiction of the National

Labor Relations Board (“NLRB”) and the Ninth Circuit's

decision in Cement Masons Health And Welfare Trust Fund v.

Kirkwood-Bly, Inc., 520 F.Supp. 942 (N.D.Cal. 1981), aff'd,

629 F.2d 641 (9th Cir. 1982).

The United States Court of Appeals for the Ninth Circuit

affirmed the district court’s decision because the Company’s

obligation to continue contributions (and its alleged violation

of ERISA) derived solely from a possible violation of Section

8(a)(5) of the National Labor Relations Act (“NLRA”)

falling within the exclusive jurisdiction of the NLRB.

SUMMARY OF ARGUMENT

As correctly found by the Ninth Circuit and every other

circuit to address the issue, nothing in ERISA, and more

specifically nothing in ERISA Section 515, requires an employ-

er to continue trust fund contributions after the expiration of the

contract which contains the employer’s promise to make such

contributions. That obligation, if any, derives solely from the

employer’s statutory duty to bargain under Sections 8(2)(5)

and (d) of the NLRA. Violations of Sections 8(a)(5) and (d)

are unfair labor practices falling within the exclusive jurisdic-

tion of the NLRB.

4

REASONS FOR DENYING THE WRIT.

1. THE NINTH CIRCUITS DECISION COMPORTS

WITH THE PURPOSES AND POLICIES OF ERISA,

AND DOES NOT RAISE NOVEL ISSUES REQUIRING

THIS COURT'S REVIEW.

The Trust Funds misstate the effect that the Ninth Circuit’s

decision will have on trust funds and trustees under ERISA.

Contrary to the Trust Funds’ assertions, this case does not

involve a tension between ERISA and the NLRA. ERISA does

not require an employer to establish a plan ner to continue a

plan indefinitely. Rather, ERISA is primarily concerned with

the elements of a plan and its administration after it is

established by the employer in order to ensure that the worker

who is promised a benefit receives that benefit. NLRB v.

AMAX Coal Co., 453 U.S. 322, 336 (1981) (trustees cannot

require employer contributions not required by the original

collective bargaining agreement). See also, Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 91 (1983); Alessi v. Raybestos-

Manhattan, Inc., 451 U.S. 504, S11 (1981); Viggiano v.

Shenango China Division of Anchor Hocking Corporation, 750

F.2d 276, 279 (3rd Cir. 1984). Accordingly, unlike the NLRA,

nothing in ERISA compels an employer to continue contribu-

tions once the agreement containing the employer’s promise to

contribute expires.

Section 515 of ERISA—the linchpin for all of the Trust

Funds’ arguments—does not alter this result. Section 515

provides that:

Every employer who is obligated to make contributions to

a multiemployer plan under the terms of the plar. or under

the terms of a collective bargaining agreement shall, to the

extent not inconsistent with law, make such contributions

in accordance with the terms and conditions of such plan

or such agreement.

Congress enacted this Section for a very specific purpose. The

Senate Committee on Labor and Human Resources explained

that the provision was added to ERISA because “simple

collection actions brought by Plan trustees have been converted

5

into lengthy, costly and complex litigation concerning claims

and defenses unrelated to the employer’s promise and the plan’s

entitlement to the contributions” and because steps had to be

taken to “simplify delinquency collection.”

Section 515’s plain wording and its legislative history show

that it was enacted for the sole purpose of precluding an

employer from asserting legal defenses unrelated or extraneous

to its promise to contribute in suits to recover delinquent

contributions. It was not, however, intended to be a substitute

for that promise or to create a new and independent obligation

to continue contributions after the expiration of the promise

initially giving rise to the obligation.? For that reason, every

court of appeals to address the issue has held that an employ-

er’s failure to maintain the status quo with respect to contribu-

2Senate Committee on Labor and Human Resources, S 1076—The

Multiemployer Pension Plan Amendments Act of 1980: Summary and

Analysis of Consideration, 96th Cong., 2d. Sess., 44 (Comm Print, Apr. 1980)

(1980 Senate Labor Committee Print) (emphasis added). See also, Kaiser

Steel Corporation v. Mullins, 455 U.S. 72, 87 (1982).

3 In an effort to avoid 515’s plain wording and legislative 907 the a

argue that the Com ’s obligation to make contributions under

Hen oA 515 must be defined by Section 4212(a) of ERISA, 29 U.S.C. § 1392.

However, Section 4212(a) specifically provides that its definition of an

employer’s obligation to contribute applies only for the limited purpose of

determining withdrawal liability under ERISA. Accordingly, Section 4212(a)

has absolutely no application to the instant case which concerns only alleged

delinquencies and not employer withdrawal. See, Moldovan v. Great Atlantic

& Pacific Tea Company, Inc., 790 F.2d 894, 900-01 (3rd Cir. 1986), citing

with approval the reasoning and language in Mo-Kan Teamsters Pension

Fund v. Botsford Ready Mix Co., 605 F.Supp. 1441, 1445 (W.D. Mo. 1985):

It is clear from the definitions given in the part relating to employer

withdrawal that Congress was well aware that an obligation to contnbute

could arise under agreements made by the parties or arise under duties

imposed by labor-management relation law. Congress chose to include

both types of obligations in determining withdrawal liability, but chose to

create a cause of action and provide special damages for recovery of

delinquent contributions only if those contributions were due under an

agreement entered into by the employer.

It is because of the clarity of the definition in Title IV [ Withdrawal

Liability] that plaintiff's argument differentiating between obligations

under the terms of a contract and obligations under the contract itself

must fail. The Court does not accept the argument that Congress would

use an ambiguous, metaphysical concept to define an obligation when it

has used a crystal clear definition elsewhere in the same act....

6

tions after termination of a collective bargaining agreement

does not violate Section 515 or any other section of ERISA.

Moldovan v. Great Atlantic & Pacific Tea Company, Inc., 790

F.2d 894 (3rd Cir. 1986); U.A. 198 Health & Welfare Educa-

tion & Pension Funds v. Rester Refrigeration Service, Inc., 790

F.2d 423 (Sth Cir. 1986); Office and Professional Employees

Insurance Trust Fund v. Laborers Funds Administrative Office,

783 F.2d 919 (9th Cir. 1986). See also, Pattern Makers’

Pension Trust Fund v. Badger Pattern Works, Inc., 615 F.Supp.

792 (N.D. Ill. 1985); Mo-Kan Teamsters Pension Fund v.

Botsford Ready Mix Co., 605 F.Supp. 1441 (W.D.Mo. 1985).

2. THE TRUST FUNDS’ CLAIMS, IF ANY, DERIVE

SOLELY FROM THE NATIONAL LABOR RELA-

TIONS ACT AND FALL WITHIN THE EXCLUSIVE

JURISDICTION OF THE NLRB.

The Trust Funds’ claims depend entirely on the assertion

that the Company and Unions did not bargain to impasse

before the Company ceased making contributions. (Pet. 3.)

These claims derive solely from Sections 8(a)(5) and (d) of

the National Labor Relations Act, which impose a statutory

bargaining duty after the expiration of a collective bargaining

agreement. See, NLRB v. Katz, 369 U.S: 736 (1962); Peerless

Roofing Co., Lid. v. NLRB, 641 F.2d 734 (9th Cir. 1981). This

Court has long held that such unfair labor practices fall within

the special competence and exclusive jurisdiction of the NLRB.

See, San Diego Building Trades Council vy. Garmon, 359 US.

236, 245 (1959); Kaiser Steel Corp. v. Mullins, 455 U.S. 72. 86

(“...[O]nly the Board may provide affirmative remedies for

unfair labor practices. .. .”).

Moreover, the present case poses significant factual and

legal issues concerning the parties’ bargaining duties under the

NLRA which require the Labor Board’s determination.

Whether or not a bargaining impasse exists and for what

purposes is a highly sophisticated and difficult issue which must

de determined by the Board:

Whether a bargaining impasse exists is a matter of judg-

ment. The bargaining history, the good faith of the parties

>

in negotiations, the length of negotiations, the importance

of the issue or issues as to which there is disagreement, the

contemporaneous understanding of the parties as to the

state of negotiations are all relevant factors to be consid-

ered in deciding whether an impasse in bargaining ex-

ist{s].

Taft Broadcasting Co., 163 NLRB 475, 478 (1967).

Further complicating the resolution of this case are the

affirmative defenses raised by the Company. The Company

contends that the Unions either waived their bargaining nghts

or failed to bargain in good faith in violation of Sections

8(b)(3) and (d) of the NLRA, and that in either event, the

Company was privileged to make unilateral changes regardless

of impasse. These defenses pose a number of subtle factual

questions, and difficult issues of law on which the NLRB has

had little or no occasion to rule.

4The NLRB has found that 1n employer is free to make unilateral

where a union waives its r. 1ts to bargain. See, NLRB v. Katz, 369

U.S. at 747-48. “A union cannot charge an employer with refusal to negotiate

when it has not made an attempt to bring the employer to the bargaining

table.” NLRB v. Alva Allen Industries, Inc., 369 F.2d 310, 321 (9th Cir.

1966), citing NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292

(1939). However, the Board has neve: determined whether a union's failure

to bargain in good faith also privileges unilateral changes in working

conditions. Unilateral changes under such circumstances appear justified

under Section 8(d) of the NLRA, which defines the duty to bargain as the

“performance of the smutual obligation of the employer and the representative

of the employees to meet at reasonable times and confer in good faith with

respect to wages, hours and other terms and conditions of employment... .

(Emphasis added.) A union that fails to bargain and to satisfy this mutual

obligation cannot later be permitted to compiain about the employer's failure

to bargain before making unilateral changes in working conditions. Were a

union permitted to make such claims, it would benefit from its own failure

to meet statutory obligations, thereby undermining the entire collective

bargaining process and frustrating the purposes of the Act.

8

Such fundamental questions of federal labor policy under

the National Labor Relations Act must be determined in the

first instance by the body statutorily charged with administering

the Act, the NI. RB.5

5 Despite the Trust Funds’ assertions, they would not be prejudiced by

resorting to the Board. The Trust Funds, like any other person, have

“standing” to take unfair labor practice charges to the Board. 29 U.S.C.

$ 160(b); 29 C.F.R. § 102.9. As charging parties, the Trust Funds would

have every Opportunity to participate in the NLRB’s unfair labor practice

proceedings, to be represented at trial by counsel, to call and examine

witnesses, tO cross-examine witnesses, and to introduce evidence. 29 C.F.R.

$§ 102.35(i) and 102.38. The Trust Funds could also present oral argument

and submit post-trial briefs to the administrative law judge and, in the event

of an adverse ruling, file exceptions with the Board. 29 C.F.R. § 102.48.

Indeed, if dissatisfied with the Board's decision, the Trust Funds could appeal

that decision to the Court of Appeals. 29 U.S.C. § 160(f). That these

procedures may differ from those available to the Trust Funds in court

litigation does not disqualify the NLRB as the appropriate forum for the Trust

Funds’ claims. These claims allege unfair labor practices which fall within the

NLRB's exclusive jurisdiction and which must be remedied in a manner

consistent with the comprehensive scheme devised by Congress. To the extent

that the Board’s exclusive jurisdiction over these claims causes problems for

the Trust Funds, those problems are the result of congressional choice and

should be addressed not by the Court, but by cengressional action. See, Shaw

v. Delta Air Lines, Inc., 463 U.S. 85, 106 ( 1983).

aa eae

9

CONCLUSION

The Ninth Circuit’s decision below does not decide a

question of federal law which should be settled by the Court.

The Court of Appeals’ decision comports with the basic tenets

of ERISA and the NLRA, and with this Court’s decisions

interpreting those statutes. The decision is consistent with every

other Court of Appeals’ decision dealing with this issue. The

Petition for Writ of Certiorari should be denied.

Respectfully submitted,

SCHACHTER, KRISTOFF, Ross,

SPRAGUE & CURIALE

Morton H. Orenstein

Mark S. Ross

Counsel of Record

Lisa S. Spann

101 California Street

Suite 2900

San Francisco, California 94111

(415) 391-3333

Attorneys for Respondent

ADVANCED LIGHTWEIGHT CONCRETE

Co., INC.

July 1986

—— se ae op. my

Lats ti 065 Rae: dene Dein

A-l

APPENDIX A

SUPPLEMENTAL STATUTE

National Labor Relations Act, Section 8(b)(3)

Section 8(b)(3) of the National Labor Relations Act, as

amended, 29 U.S.C. § 158(b)(3), provides:

(b) It shall be an unfair labor practice for a labor

organization or its agents—

(3) to refuse to bargain collectively with an employ-

er; provided it is the representative of his employees

subject to the provisions of section 9{a) [29 U.S.C.

§ 159(a)].