# Amicus Curiae Brief — Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1988
- **Citation:** 484 U.S. 539

## Text

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1985

”™

LABORERS HEALTH AND WELFARE TRUST
FUND FOR NORTHERN CALIFORNIA, et al.,
7 Petitioners,

ADVANCED LIGHTWEIGHT CONCRETE Co., INC.,

Respondent.

On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

MOTION OF THE LABORERS INTERNATIONAL UNION
OF NORTH AMERICA NATIONAL (INDUSTRIAL)
PENSION FUND FOR LEAVE TO FILE A BRIEF
AND BRIEF AS AMICUS CURIAE

ROBERT J. CONNERTON *
JAMES S. RAY
TERESE M. CONNERTON

CONNERTON, BERNSTEIN & KATZ

Suite 800

1899 L Street, N.W.

Washington, D.C. 20036

(202) 466-6790

Attorneys for the
Laborers International Union
of North America National
(Industrial) Pension Fund

* Counsel of Record

WiLeon - Eres Printing Co.. Inc. - 789-0096 - WasHincron, D.C. 20001

@ Be. 00

IN THE
Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-2079

LABORERS HEALTH AND WELFARE TRUST
FUND FOR NORTHERN CALIFORNIA, et al.,
Petitioners,
Vv.

ADVANCED LIGHTWEIGHT CONCRETE Co., INC.,

Respondent.

On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

MOTION OF THE LABORERS INTERNATIONAL UNION
OF NORTH AMERICA NATIONAL (INDUSTRIAL)
PENSION FUND FOR LEAVE TO FILE A BRIEF
AS AMICUS CURIAE

To the Honorable Chief Justice and Associate Justices
of the Supreme Court of the United States:

Pursuant to Rule 36 of the Rules of this Court, the
Laborers International Union of North America National
(Industrial) Pension Fund (the “Pension Fund”) re-
spectfully moves for leave to file the accompanying brief

as amicus curiae in support of the petition for Writ of
Certiorari. Petitioners have consented to the filing of this
brief; Respondents have not.

INTEREST OF THE PENSION FUND

The Pension Fund is a labor-management trust fund
established pursuant to section 302(c) (5) of the Labor-

t Relations (“Taft-Hartley”) Act [29 U.S.C.
§ 186(c) (5)] and administered by a board of union and
employer appointed trustees to provide pension benefits
to workers represented for purposes of collective bargain-
ing by affiliates of the Laborers International Union of
North America (“LIUNA”). It is also a multiemployer
pension plan within the meaning of and covered by the
Employee Retirement Income Security Act of 1974
(“ERISA”), as amended.

More than twenty thousand workers are covered by the
Pension Fund. And currently more than five hundred em-
ployers scattered over nearly all fifty States (including
States within the Ninth Circuit) contribute to the Pension
Fund pursuant to collective bargaining agreements with
LIUNA local unions and district councils. Employer con-
tributions are based on a bargained amount for each
hour, day or week worked by a covered laborer.

The Pension Fund is typical of national and regional
multiemployer pension plans. And as with other such
plans, the prompt collection of employer contributions is
an essential function of the Pension Fund. Those contri-
butions provide the funding necessary to pay monthly
pension benefits to retirees.

The Multiemployer Pension Plan Amendments Act of
1980 (“MPPAA”) [P.L. 96-364, 94 Stat. 1208 (1980) }
amendments to ERISA greatly enhanced the effectiveness
of the Pension Fund’s contribution collection program.
The provision in ERISA section 502(g)(2) [29 U.S.C.
§ 1132(g) (2)] of mandatory interest, liquidated damages

and attorneys’ fees remedies has discouraged employees
from becoming delinquent. Where employers fail in their
obligation to contribute, ERISA section 515 [29 U.S.C.
$ 1145], added by MPPAA, provides an effective and
generally efficient mechanism for judicial enforcement.
This is all in accordance with the Congressional design
of fostering the flow of employer contributions into
multiemployer plans, thereby improving the plans’ fund-
ing base and securing the pension benefits of plan
participants.

The decision by the Court of Appeals in this case, un-
less overturned by this Court, will impede the ability of
the Pension Fund, and all other multiemployer plans, to
promptly and fully collect vital employer contributions.
In view of the number of individual collective bargaining
relationships on which the Pension Fund depends for con-
tributions, the Pension Fund is frequently confronted
with having to collect contributions during the sometimes
long periods between collective bargaining agreements.
Commonly, an employer is delinquent for a period dur-
ing the term of a collective bargaining agreement as well
as for the period while bargaining on a new agreement
is progressing. By restricting the Pension Fund’s enforce-
ment recourse to filing an unfair labor practice charge
with the National Labor Relations Board, the decision
below would deprive the Pension Fund of (1) the de-
linquency disincentives of the ERISA section 502(g) (2)
remedies, (2) control over the essential, fiduciary func-
tion of contribution collection, and (3) an efficient, prompt
and effective means of maintaining contribution flow. As
a result, the funding of the Pension Fund and the retire-
ment income of the workers it covers would be less secure.

In short, this case presents an issue of federal law
that is of compelling importance to the Pension Fund and
all other multiemployer plans, and that raises national
policy concerns that can only be resolved by this Court.

ISSUES DEVELOPED BY THE PENSION FUND

The Pension Fund’s brief focuses on issues which it
believes may not be adequately addressed elsewhere, in-
cluding:

(a) resolution of the case requires interpretation
and accommodation of national employee benefits pol-
icy and national labor policy which only this Court
can authoritatively provide; and

(b) ERISA plainly vests exclusive jurisdiction in the
courts to make impasse determinations in an em-
ployer withdrawal liability context, and there is no
rational basis for precluding courts from making
such determinations in suits to collect employer con-
tributions.

The Pension Fund, therefore, moves for leave to file

the accompanying brief amicus curiae.

Respectfully submitted,

ROBERT J. CONNERTON
JAMES S. RAY
TERESE M. CONNERTON

CONNERTON, BERNSTEIN & KATZ
Suite 800

1899 L Street, N.W.
Washington, D.C. 20036

(202) 466-6790

Dated: July 17, 1986

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES. ....................... ii
INTEREST OF THE PENSION FUND ....................... 2
REASONS FOR GRANTING REVIEW ...................... i. 8

I. RESOLUTION OF THE CASE REQUIRES
INTERPRETATION AND ACCOMMODATION
OF NATIONAL LABOR POLICY WHICH
ONLY THIS COURT CAN AUTHORITA-
TIVELY PROVIDE ......0........... 3

Il. ERISA PLAINLY VESTS EXCLUSIVE JU-
RISDICTION IN THE COURTS TO MAKE
IMPASSE DETERMINATIONS IN AN EM-
PLOYER WITHDRAWAL LIABILITY CON-
TEXT, AND THERE IS NO RATIONAL
BASIS FOR PRECLUDING COURTS FROM
MAKING SUCH DETERMINATIONS IN
SUITS TO COLLECT EMPLOYER CONTRI-
UP EE Ee ee 6

FEE 8

ii

TABLE OF AUTHORITIES
Cases Page

Alessi v. TTC STT Inc., 451 U.S. 504
(1981) ........... 3
Carpenters Local 1846 » v. Pratt-Farnsworth, 690
F.2d 489 (5th Cir. 1982), cert. denied, 464 U.S.
lf _-_____ 5
Central States, Southeast & Southwest Areas Pen-
sion Fund v. Central Transport, Inc., 472 U.S.

——, 86 L.Ed.2d 447 (1985) -...022...-..2--..---e0000--- 8,4
Connell Construction Co. v. Plumbers & Steam-

fitters, 421 U.S. 616 (1975) ~........2-2222 eee 5
Connolly v. Pension Benefit Guaranty Corp., 475

U.S. ——, 89 L.Ed.2d 166 (1986) ........................ 8,6

Franchise Taz Board of the State of California v.
Construction Laborers Vacation Trust for So.
California, 463 U.S. 1 (1988) -.............----.--.------- 6

Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982).... 3, 4,5

Massachusetts Mutual Life Ins. Co. v. Russell, 473

U.S. ——, 87 L.Ed.2d 96 (1985) .....................-....- 6
Menkorn v. Firestone Tire & Rubber Co., 738 F.2d

1496 (9th Cir. 1984)... cccceccnnneeeeecnnnennnneeeee 6
Moldovan v. Great Atlantic & Pacific Tea Co., Inc.,

790 F.2d 894 (3d Cir. 1986) —.............---2-----........ 5
Nachman Corp. v. Pension Benefit Guaranty Corp.,

446 U.S. BBD (1980) ....222222.......-ccccecccccencceeeeeeeeeeeeee 3
NLRB v. Amaz Coal Co., 453 U.S. 322 (1981) — 3
Pension Benefit Guaranty Corp. v. R.A. Gray & Co.,

I ee 8, 6,7
Producers Diary Delivery v. Western Conference

of Teamsters, 654 F.2d 625 (9th Cir. 1981) .. 7
Textile Workers v. Lincoln Mills, 353 U.S. 448

EEE een oe 6

Trustees of Amalgamated Insurance Fund v. Gelt-

man Industries, Inc., 784 F.2d 926 (9th Cir.

EE SE ST Se ae 8
U.A. 198 Health & Welfare, Education & Pension

Funds v. Rester Refrigeration Service, Inc.,

790 F.2d 423 (5th Cir. 1986) —.........00. 5
Woodward Sand Co. v. Western Conference of

Teamsters Pension Trust Fund, 789 F.2d 691

(9th Cir. 1986) 6,7

iii

TABLE OF AUTHORITIES—Continued
Statutes Page
Employee Retirement Income Security Act of 1974,
29 U.S.C.

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Act,

Legislative Materials
Senate Committee on Labor and Human Resources,
96th Cong., 2d Sess. 44 (Comm. Print 1980) __.. 4

126 Cong. Rec. $11673-74 (daily ed. August 26,
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IN THE
Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-2079

LABORERS HEALTH AND WELFARE TRUST
FUND FOR NORTHERN CALIFORNIA, et al.,
. Petitioners,

ADVANCED LIGHTWEIGHT CONCRETE Co., INC.,

Respondent.

On Petition for Writ of Certiorari to the
United States Court of Appeals
for the Ninth Circuit

BRIEF OF THE LABORERS INTERNATIONAL UNION
OF NORTH AMERICA NATIONAL (INDUSTRIAL)
PENSION FUND AS AMICUS CURIAE
IN SUPPORT OF PETITIONERS

The Laborers International Union of North America
National (Industrial) Pension Fund {the “Pension
Fund”) submits this brief as amicus curiae to urge the
Court to review the holding of the Court of Appeals that
the federal courts lack jurisdiction over suits brought by
multiemployer plan trustees pursuant to the Employee Re-
tirement Income Security Act of 1974 (“ERISA”), as
amended, to collect employer contributions due for the
period between the expiration of a collective bargaining
agreement and impasse in bargaining for a new agree-

INTEREST OF THE PENSION FUND
As described in the motion for leave to file this brief,

that the National Coordinating Committee for Multi-

the Court to consider the additional points and authorities
contained herein.

REASONS FOR GRANTING REVIEW

I. RESOLUTION OF THE CASE REQUIRES INTER-
PRETATION AND ACCOMMODATION OF NA-
TIONAL LABOR POLICY WHICH ONLY THIS
COURT CAN AUTHORITATIVELY PROVIDE.

As the “ourt has repeatedly observed, ERISA was en-
acted in 1974 primarily to ensure that workers and their
beneficiaries received their anticipated pension benefits
upon retirement, and that they not bo deprived of those
benefits because of, among other reasons, insufficient
funds in their pension plans. See Nachman Corp. v. Pen-
sion Benefit Guaranty Corp., 446 U.S. 359 (1980) ; Alessi
v. Raybestos-Manhattan, Inc., 451 US. 504 (1981);
Central States, Southeast & Southwest Areas Pension
Fund v. Central Transport, Inc., 472 U.S. ——, 86 L. Ed.
2d 447, 457 (1985); Pension Benefit Guaranty Corp. v.
R.A. Gray & Co., 467 U.S. 717 (1984). In 1980, ERISA
was substantially amended with respect to multiemployer
plans by the Multiemployer Pension Plan Amendments
Act (“MPPAA”), P. L. 96-364, 94 Stat. 1208. MPPAA
was a response to Congress’ finding, after lengthy study,
that multiemployer pension plans were vulnerable to finan-
cial instability. Kaiser Steel Corp. v. Mullins, 455 U.S.

72, 86-87 (opinion of the Court), 91-99 (Brennan, J.,
dissenting) (1982); Pension Benefit Guaranty Corp. v.
R.A. Gray & Co., supra; Connolly v. Pension Benefit
Guaranty Corp., 475 US. ——, 89 L. Ed. 2d 166
(1986). See also NLRB v. Amaz Coal Co., 453 U.S. 322,
338 n.22 (1981). And, as this Court has recognized,
Congress has identified the failure of some employers to
make full and timely contributions as a key factor under-
mining the financial soundness of plans. See Kaiser Steel,
supra; Central Transport, 86 L. Ed. 2d at 464 n.22.

4

Congress found further that the legal recourse then
available to plan trustees for the enforcement of contribu-
tion obligations was inadequate, and deliberately acted to
correct this deficiency and provide a simple, efficient and
effective means for plan trustees to collect delinquent con-
tributions. See Kaiser Steel, 455 U.S. at 87, 91-96 (quot-
ing pertinent MPPAA legislative history). It declared
that “(t]he public policy of [MPPAA] to foster the
preservation of the private multiemployer plan system
mandates that provision be made to discourage delinquen-
cies and simplify delinquency collection.” Jd. at 94 n.3,
quoting, Senate Committee on Labor and Human Re-
sources, 96th Cong., 2d Sess. 44 (Comm. Print 1980).
And to implement this policy, MPPAA added to ERISA
section 515 [29 U.S.C. § 1145], which provides trustees
with a statutory cause of action to collect delinquent con-
tributions, and section 502(g)(2) (29 U.S.C. § 1132(g)
(2)], which mandates courts to award interest, liqui-
dated damages, and attorneys’ fees to plan trustees who
prevail in a section 515 suit. Jd. Importantly, Congress
vested the federal courts with exclusive jurisdiction over
contribution collection actions. See ERISA § 502(a) (3),
(e) [29 U.S.C. §11382(a)(3), (e)]. See also Kaiser
Steel, 455 U.S. at 93-96.

This policy reflected in the MPPAA amendments com-
plements another aspect of the national employee bene-
fits policy expressed through the minimum standards of
fiduciary conduct set forth in ERISA §§ 401-409 [29
U.S.C. §§ 1101-1109]. Reading into these ERISA stand-
ards common law trust principles, this Court recently
held that multiemployer plan trustees bear a strict fidu-
ciary duty to identify workers on whose behalf contribu-
tions are owed and to make reasonable efforts to collect
delinquent employer contributions. See Central Trans; »rt,
86 L. Ed. 2d at 475-61. The Court further ruled that
this fiduciary duty is not delegatable to a union, whose
collective bargaining agreement requires the contribu-
tions, or to a governmental body. Jd. at 461-63.

However, preemption is not a mechanical formula; nor
does it involve a rigid application of clear Congressional
intent. Rather, whether a court is preempted from ruling
on a matter normally within the province of the NLRB
often rests upon a judicial evaluation of the national labor
policy interests as compared with competing policies.
And on several occasions this Court has weighed the com-
peting interests more heavily and sanctioned judicial res-
olution of unfair labor practice issues and other matters
over which the NLRB normally exercises exclusive juris-
diction. See, e.g., Kaiser Steel, 455 U.S. at 83-85; Con-
nell Construction Co. v. Plumbers & Steamfitiers, 421
U.S. 616 (1975). Cf. Carpenters Local 1846 v. Pratt-
Farnsworth, 690 F.2d 489, 517-19 (5th Cir. 1982), cert.
denied, 464 U.S. 932 (1983) (court can decide the appro-
priateness of a bargaining unit in the context of a Taft-
Hartley Act section 301 suit to enforce a collective bar-

gaining agreement, particularly in view of the related
ERISA contribution collection claims).

In a case like this, involving a balance between national
employee benefits policy and national labor policy, review
by this Court is particularly appropriate. This is because
Congress in enacting ERISA charged the judiciary with
the obligation and the power to formulate a substantive
federal common law of employee benefits to implement

1 Moldovan v. Great Atlantic & Pacific Tea Co., Inc., 790 F.2d 894
(3d Cir. 1986); U.A. 198 Health & Welfare, Education & Pension

Funds v. Rester Refrigeration Service, Inc., 790 F.2d 423 (5th Cir.
1986).

and supplement the express statutory terms in a fashion
akin to the way the courts have carried out the mandate
of Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957),
with respect to section 301 of the Taft-Hartley Act. [29
U.S.C. § 185] See, e.g., Franchise Tax Board of the State
of California v. Construction Laborers Vacation Trust
for So. California, 463 U.S. 1, 24 n.26, 26 (1983); Mas-
sachusetts Mutual Life Ins. Co. v. Russell, 473 U.S. ——,
87 L. Ed. 2d 96, 112-13 (Brennan, J., concurring in judg-
ment) (1985); Menhorn v. Firestone Tire & Rubber
Co., 738 F.2d 1496, 1498-1500 (9th Cir. 1984). The
Court, we submit, has a special obligation under the
ERISA regulatory scheme to review the policy balance
struck by the Ninth Circuit.

Il. ERISA PLAINLY VESTS EXCLUSIVE JURISDIC-
TION IN THE COURTS TO MAKE IMPASSE
DETERMINATIONS IN AN EMPLOYER WITH-
DRAWAL LIABILITY CONTEXT, AND THERE IS
NO RATIONAL BASIS FOR PRECLUDING COURTS
FROM MAKING SUCH DETERMINATIONS IN
SUITS TO COLLECT EMPLOYER CONTRIBU-
TIONS.

In concluding that only the NLRB can make bargain-
ing impasse determinations, the court of appeals failed
to consider that ERISA, as amended by MPPAA, on its
face vests exclusive jurisdiction in the courts to make
precisely the same impasse determinations in the context
of suits to collect employer withdrawa! liability. Yet,
subsequently a different panel of the same appeals court
ruled that the courts (not the NLRB) are required to
make bargaining impasse deierminations in suits by mul-
tiemployer plans to recover withdrawal liability from
employers, and it remanded the case to the lower court
for such a determination. See Woodward Sand Co. v.
Western Conference of Teamsters Pension Trust Fund,
789 F.2d 691 (9th Cir. 1986).

As discussed by this Court in the R.A. Gray and Con-
nolly cases, MPPAA introduced a statutory liability for

drawal” from a plan so as possibly to be subject to lia-
bility depends in part on whether the employer has per-
manently ceased “to have an obligation contribute

to
under the plan.” ERISA § 4203(a) [29 U.S.C. § 1383
(a)]. The term “obligation to contribute”
ERISA § 4212(a) [29 U.S.C. § 1392(a)] to include “

:

multiemployer plans after its collective bargaining agree-
ment has expired until such time as it bargains to impasse
with the union (or reaches a new agreement). Woodward
Sand, 789 F.2d at 695.

withdrawal liability. See generally R.A. Gray & Co., 467
U.S. at 717. And such suits, as we have shown, neces-
sarily involve the courts in determining whether the em-
ployer continues to have an obligation to contribute; that
is, whether the employer’s collective bargaining agree-
ment has expired and he has bargained to impasse.

The Advanced Lightweight panel seriously erred in
neglecting to consider this aspect of the MPPAA-ERISA
legislative scheme. First, it establishes that Congress does
not consider bargaining impasse determinations to be the
exclusive province of the NLRB any longer (if it ever
was*). Second, MPPAA and its legislative history clearly

2 See, e.g., Producers Dairy Delivery v. Western Conference of
Teamsters, 654 F.2d 625 (9th Cir. 1981).

reflect a Congressional intent that claims by multiem-
ployer withdrawal liability should be treated in the same
manner as claims for delinquent employer contributions.
See ERISA § 4301(b) [29 U.S.C. § 1451{b)]; 126 Cong.
Rec. $11673-74 (daily ed., August 26, 1980) (remarks
of Sen. Williams). See also Trustees of Amalgamated
Insurance Fund v. Geltman Industries, Inc., 784 F.2d
926, 931-32 (9th Cir. 1986). There is no rational basis
for holding that courts may make impasse determinations
in withdrawal liability collection suits but plans must
resort to the NLRB when confronted by delinquent em-
ployer contributions.

CONCLUSION

For these and the reasons stated in the petition and in
the NCCMP amicus brief, the petition for a writ of
certiorari should be granted.

Respectfully submitted,

RosBert J. CONNERTON *
James S. RAY
TERESE M. CONNERTON

CONNERTON, BERNSTEIN & KATZ

Suite 800

1899 L Street, N.W.

Washington, D.C. 20036

(202) 466-6790

Attorneys for the
Laborers International Union
of North America National
(Industrial) Pension Fund

* Counsel of Record
Dated: July 17, 1986

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0210%3A06. Public record. Not legal advice.