# Opposition Brief — Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0210%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1988 - **Citation:** 484 U.S. 539 ## Text In THE Supreme Court of the United States Octoser Term, 1985 Lasoaers HEALTH AND WeLFare Trust FuND ron NoaTHERN CALIFOania, ef ai., Petitioners, Vv ADVANCED LiGutTweiont 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 Moaton H. ORENSTEIN Maax S. Ross (Counsel of Record) Lisa S. SPANN Schachter, Kristoff, Ross, Sprague & Curiaie 101 California Street Suite 2900 San Francisco, California 941 || (415) 391-3333 Attorneys for Respondent ADVANCED LIGHTWEIGHT Concrete Co., INC. ' 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. TABLE OF CONTENTS 2. THE TRUST FUNDS’ CLAIMS, IF LABOR RELATIONS ACT AND FALL WITHIN THE EXCLUSIVE JURISDICTION TABLE OF AUTHORITIES CaSES PAGES Alessi v. Raybestos-Manhattan, Inc., 45\ U.S. 504 tala enerentnetntetetapdnatenenprenaneraan 4 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) .........ececcececceceeceeseeees 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 ) ..........ccccceceeeees 5,6 Moldovan v. Great Atlantic & Pacific Tea Company, Inc., 790 F.2d 894 ( 3rd Cir. 1986 ) ..........ccccccccceeececeeeeeeeeeeeeeeees 5,6 NLRB v. Alva Alien Industries, Inc., 369 F.2d 310 (8th a ssunsununnesypeuusouessususcecs 7 NLRB v. AMAX Coal Co., 453 U.S. 322 (1981) ................ 4 NLRB v. Columbian Enameling & Stamping C2., 306 U.S. EE 7 NLRB v. Katz, 369 U.S. 736 ( 1962 ) .........cccccecccceeeeeeeeeeeeeees 6,7 Office and Professional Employees Insurance Trust Fund v. Laborers Funds Administrative Office, 783 F.2d 919 (| 6 Pattern Makers’ Pension Trust Fund v. Badger Pattern Works, Inc., 615 F.Supp. 792 (N.D.IIl. 1985) ................ 6 Peerless Roofing Co., Lid. v. NLRB, 641 F.2d 734 (9th ee Tee 6 San Diego Building Trades Council v. Garmon, 359 US. 236 (1959) i 6 Shaw v. Delta Air Lines, Sno. 463 U.S. 85 (1983) ............. 4,8 Taft Broadcasting Co., 163 NLRB 475 ( 1967)................... 7 U.A. 198 Health & Welfare Education & Pension Funds v. Rester Refrigeration Service, Inc., 790 F.2d 423 (Sth ES ET 6 Viggiano v. Shenango China Division of Anchor Hocking orporation, 750 F.2d 276 (3rd Cir. 1984) ..............0000 4 iv STATUTES PAGES Employee Retirement Income Security Act of 1974 Section 502, 29 U.S.C. § 1132........cccccccccceccscescccessecens 2,3 Section $15, 29 U.S.C. § 1145 .....cccccccccccceceeceseeeseceeees 3,4,5 Section 4212, 29 U.S.C. § 1392... cccccccccccceccscseeceeeeees 5 Labor Management Relations Act Section 301, 29 U.S.C. §$ 185......cccccccccccsccscsscsseceseeeceees 3 Multiemployer Pension Plan Amendments Act of 1980 a 3,5 National Labor Relations Act Section 8(a)(5), 29 U.S.C. § 158(a)(5).ccccccccccccccceoees 3.6 Section 8(b)(3), 29 U.S.C. § 158(b)(3) coccccccccccccccoeee 2 Section 8(d), 29 U.S.C. § 15864) occcccccccccccceccsesceceeeeeee 2,3,6,7 Section 10(b), 29 U.S.C. § 160) occcccccccccccccccecesseeee. 8 Section 10( f), 29 U.S.C. § 160( f) cocccccccccccccccccceccoseceece. 8 OTHER AUTHORITIES Code of Federal Regulations TA LT 8 ee 8 EE ST ae ee 8 EE ee 8 Senate Committee on Labor and Human Resources, 96th Cong., 2d Sess., S. 1076—The Multiemployer Pension Plan Amend- ments Act of 1980: Summary and Analysis of Consideration, (Comm. Print, Apr. 1980)................ 5 te UD sat LL l No. 85-2079 IN THE Supreme Court of the United States Octoser Term, 1985 LABORERS HEALTH AND WELFARE TRUST FUND ror 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 Appeals 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 Disinct 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 juriedict 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 multi¢mployer 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 mghts 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 w unilaterally cease contributions, notwithstanding the alleged absence of a bargaining impasse. 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(a)(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 CIRCUIT'S 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. NLAB 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., 43 U.S. 85, 91 (1983); Alessi v. Raybestos- Manhattan, Inc., 451 U.S. 504, 511 (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 agreemeni 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- Muluemployer : 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). 2 In an effort to avoid 515’s plain wording and legislative intent, the Trust argue that the Company's obligation to make contnbutions under Section 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 i iH Hl il gt 3iet HH di itil HEE i i : | | language in Mo-Kan Teamsters Pension 1, 1445 (W.D. Mo. 1985): | i : | I | | ut : g i | : if those contributions were due under an into by the employer. j i tt Af AL | : metaphysical concept to define an obligauion when 1 clear definition elsewhere in the same act.... FE L i 6 uons after termination of a collective bargaining agreement does not violate Section 515 or ary 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 (9h Cir. 1986). See also, Pattern Makers’ Pension Trust Fund v. Badger Pattern Works, Inc., 615 F Supp. 792 (N.D. fl 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 v. Garmon, 359 US. oe ee eek ee v. Mullins, 455 U.S. 72. 86 ..[O]aly the Board may provide affirmative remedies for sivtdierameiae A * 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 be determined by the Board: Whether a bargaining impasse exists is a matter of judg- ment. The bargaining history, the good faith of the parties - en a al 7 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 i L the resolution of this case are the affirmative defenses raised by the Company. The Company had little or no occasion to rule.‘ «The NLRB has found that an employer is free to make unilateral 8(d) of the NLRA, which defines the duty to “performance of the arurua/ obligauion of the employer and the representative the employees to meet at reasonable umes and confer in good faith with (Emphasis added.) A union that fails to bargain and later be permitted to compiain about { i i 5 | 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 administenng the Act, the NLRB.5 i: iE BITRE ttre nate li apliniaifle His Set it ay Flat Hie 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 Petition for Writ of Certiorari should be denied. July 1986 Respectfully submitted, SCHACHTER, Kaistorr, Ross, SprRaGueE & 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. 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 %a) [29 U.S.C. § 15% a)}. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0210%3A03. Public record. Not legal advice.