# 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

Supreme Court, U.S.
ILE P

7

No. 85-2079 MAY 7 1987

OCTOBER TERM, 1986

LABORERS HEALTH AND WELFARE TRUST FUND FOR
NORTHERN CALIFORNIA, ET AL., PETITIONERS

D.

ADVANCED LIGHTWEIGHT CONCRETE Co., INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

CHARLES FRIED

Solicitor General
Louis R. COHEN
Deputy Solicitor General
GLEN D. NAGER
Assistant to the Solicitor
GEORGE R. SALEM General
Solicitor of Labor Department of Justice
ALLEN H. FELDMAN Washington, D.C. 20530
Associate Solicitor (202) 633-2217
CAROL A. DE DEO
Deputy Associate Solicitor
ELLEN L. BEARD
Attorney
Department of Labor

Washington, D.C. 20210

ROSEMARY M. COLLYER
General Counsel
National Labor Relations Board
Washington, D.C. 20570

QUESTION PRESENTED

Whether a federal district court has jurisdiction under
Sections 502 and 515 of the Employee Retirement Income
Security Act of 1974, 29 U.S.C. 1132 and 1145, over an
action by the trustees of a multiemployer employee bene-
fit plan to collect contributions from a delinquent em-
ployer, where the employer’s alleged obligation to make
contributions arises from its duty under Section 8(a) (5)
of the National Labor Relations Act, 29 U.S.C. 158(a)
(5), to refrain from unilaterally changing terms and
conditions of employment during post-contract-expiration
collective bargaining.

(I)

TABLE OF CONTENTS

Page
Interest of the United States 1
En 2
r 7
Argument:
Sections 502 and 515 of ERISA confer jurisdiction
on the appropriate district court to enforce an em-
ployer’s contribution obligations based on the duty
under Section 8(a) (5) of the NLRA to honor the
terms of an expired collective bargaining agree-

EEE EES ee 10
J 29
TABLE OF AUTHORITIES

Cases:
American Distributing Co. v. NLRB, 715 F.2d 446
~ (9th Cir. 1983), cert. denied, 466 U.S. 958
r 14
Carey v. Westinghouse Corp., 375 U.S. 261
e 28
Carpenters Local Union No. 1846 v. Pratt-
Farnsworth, Inc., 690 F.2d 489 (5th Cir. 1982),
cert. denied, 464 U.S. 932 (1983) — 20, 28
Central States, Southeast & Southwest Areas Pen-
sion Fund v. Central Transport, Inc., 472 U.S.
EE EE AT 23, 24, 25
Central States, Southeast & Southwest Areas Pen-
sion Fund v. Kraftco, Inc., 799 F.2d 1098 (6th
Cir. 1986), cert. denied, No. 86-881 (Feb. 23,
1987) 8 25
Charles D. Bonanno Linen Service, Inc. v. NLRB,
r . 28
Chemical & Alkali Workers v. Pittsburgh Plate
Glass Co., 404 U.S. 157 (1971) 25
Connell Construction Co. v. Plumbers & Steamfit-
ters Local Union No. 100, 421 U.S. 616 (1975).. 7, 11,
12, 27

(111)

Cases—Continued : Page
Container Systems Corp. v. NLRB, 521 F.2d 1166

E . 24
Garland Coal Co., 7 Employee Benefits Cas.

(BNA) 1771 (Dreyer, Arb. June 10, 1986) 18

Garner v. Teamsters Union, 346 U.S. 485 (1953).. 10
Hassett Maintenance Corp., 260 N.L.R.B. 1211

| | nen Oe 25
Hinson v. NLRB, 428 F.2d 133 (8th Cir. 1970)... 13, 14
J. A. M. National Pension Trust Fund v. Schulze

Tool & Die Co., 564 F. Supp. 1285 (N. D. Cal.

8 8——ůů———— 18
Kaiser Steel Corp. v. Mullins, 455 U.S. 72 (1982). 11
Laborers Health & Welfare Trust Fund v. Hess,

594 F. Supp. 273 (N. D. Cal. 198g 14
Local 20, Teamsters Union v. Morton, 377 U.S. 252
CED. — 7, 11, 27

Mo-Kan Teamsters Pension Fund v. Botsford
Ready Mix Co., 605 F. Supp. 1441 (W. D. Mo.
1 13, 25
Moldovan v. Great Atlantic & Pacific Tea Co., 790
ZII ee 7, 28
Nachman Corp. v. Pension Benefit Guaranty
Corp., 446 U.S. 359 (1980) 19, 22-23
New Bedford Fishermen’s Welfare Fund v. Baltic
Enterprises, Inc., No. 86-1537 (1st Cir. Mar. 11,

— . 7
NLRB v. Amaz Coal Co., 453 U.S. 322 (198172 25
NLRB v. Bildisco & Bildisco, 465 U.S. 513

— . 28
NLRB v. Lion Oil Co., 352 U.S. 282 (19577 14
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214

WWW 24

Nolde Brothers, Inc. v. Local No. 358, Bakery &
Confectionery Workers Union, 430 U.S. 243

— 12
Northcross v. Memphis Board of Education, 412
ß 20

Northern California District Council of Hod Car-
riers v. Opinski, 673 F.2d 1074 (9th Cir. 1982) 28

Cases—Continued: Page

Pattern Makers’ Pension Trust Fund v. Badger
Pattern Works, 615 F. Supp. 792 (N.D. III.

c LE OO 12
Peerless Roofing Co. v. NLRB, 641 F.2d 734 (9th

r ——A—. 13
Pilot Life Ins. Co. v. Dedeaux, No. 85-1043 (Apr.

r oak ere ae ee one ne ae 14, 26

Roselle Shoe Corp., 135 N.L.R.B. 472 (1962), en-
forced sub nom. Textile Workers Union v.

NLRB, 315 F.2d 41 (D.C. Cir. 1963 — 24
San Diego Building Trades Council v. Garmon,

D . 6, 10
Schneider Moving & Storage Co. v. Robbins, 466

e, 2. 25
Smith v. Evening News Ass’n, 371 U.S. 195

rr 11
Southwest Administrators, Inc. v. Rozay’s Trans-

fer, 791 F.2d 769 (9th Cir. 1986) W 21

T. I. M. E.-DC, Inc. v. New York State Teamsters
Conference Pension & Retirement Fund, 580
F. Supp. 621 (N. D. N. V.), aff'd, 735 F.2d 60
r . re 21
L.A. 198 Health & Welfare, Education & Pension
Funds v. Rester Refrigeration Service, Inc., 790

ey ss 7
United States v. Utah Construction & Mining Co.,

r ... 28
Vaca v. Sipes, 386 U.S. 171 (1967) )))) 12, 24
Wisconsin Dep’t of Industry, Labor & Human Re-

lations v. Gould, No. 84-1484 (Feb. 26, 1986) 25

Woodward Sand Co. v. Western Conference of
Teamsters Pension Trust Fund, 789 F.2d 691
r ... Ä.. 18, 20

Statutes and regulations:

Employee Retirement Income Security Act of 1974,
29 U.S.C. (& Supp. III) 1001 et seq.:

§ 202 (b) (1), 29 U.S.C. 1052 (b) (17 22
§ 203 (b) (1) (G), 29 U.S.C. 1053 (b) (1) (G) — 22

VI

Statutes and regulations—Continued : Page
§ 204(b) (3) (A), 29 U.S.C. (& Supp. III)

11K csiescissctsinsncstesmserecs--<cresenens 22

$ 404 (a) (1) (A), 29 U.S.C. 1104 (a) (1) (A) -.. 23

§ 404 (a) (1) (B), 29 U.S.C. 1104 (a) (1) (B).... 23

8 406 (a) (1) (B), 29 U.S.C. 1106 (a) (1) (83) — 23

LI 4, 5, 7, 11, 12

§ 502 (a) (3), 29 U.S.C. 1132 (a) (3) 13

§ 502 (g) (2), 29 U.S.C. 1132 (g) (22222 15, 26

188. 20 6.0. 166!(ülĩ5᷑tœgĩĩ passim

§ 4022A, 29 U.S.C. 13222——E— 15

8 4022B, 29 U. c. 18220 ..........-..-0--20----c-eeeeneeee- 15

§ 4201 (a) (1), 29 U.S.C. 1381 (a) (772 20
§§ 4201-4402, 29 U.S.C. (& Supp. III) 1381

1111... 15

§ 4203 (a) (1), 29 U.S.C. 1383 (a) (1). 20

§ 4212 (a), 29 U.S.C. 1392 (a 5, 6, 8, 18, 19, 21, 22

§ 4218 (2), 29 U.S.C. 1398 (2 —— 21

§ 4221 (d), 29 U.S.C. 1401 (d) — 19

§ 4301 (b), 29 U.S.C. 1451 (b 19
Labor-Management Relations Act, 1947, Tit. II,

29 U.S.C. 171 et seq.:
K „ Man cintisnsineniansnicenpanniosesaiannnes 4,11, 12
FF fo —— 11

Multiemployer Pension Plan Amendments Act of
1980, 29 U.S.C. (& Supp. III) 1001a et se.:

§ 3(c) (2), 29 U.S.C. 100 1a (e) (222222 15, 23
83e) 3), 29 U.S.C. 100 1a (e) 22222 15, 23

National Labor Relations Act, 29 U.S.C. (& Supp.
III) 151 et seq.:

§ 8(a) (1), 29 U.S.C. 158 (a) ()). 4
§ 8(a) (5), 29 U.S.C. 158 (a) (522 3, 4, 12, 13, 18
Dg BP Ws 1L!1!1 12
§ 8(b) (4), 29 U.S.C. 158 (b) (4) . ee... 11
DOGG, BP De L1K1ł!1!1L1L 4
6B Ce), BO WEA, TRB GO) 2 -22cccncnccceccsccncscscoseesssee 11, 12
OO 1!„ñy 25

Sherman Act 8 1, 15 U. S. C0C.⸗l et ceceeceeeeeeeee 11

VII
Regulations—Continued :

29 C. F. R.:

e eee
r ...
r
1

Miscellaneous:
126 Cong. Rec. (1980):

Dep't of Labor Advisory Ops. reprinted in Pens.
Rep. (BNA) No. 221 (Jan. 8, 1979):

Op. 76-89 (Aug. 31, 1976) —— cence eee
Op. 78-28 A (Dec. 5, 1978)

ERISA Improvements Act of 1978: Joint Hear-
ings on S. 3017 Before the Subcomm. on Labor
of the Senate Comm. on Human Resources and
the Subcomm. on Private Pension Plans and
Employee Fringe Benefits of the Senate Comm.
on Finance, 95th Cong., 2d Sess. (1978)

41 Fed. Reg. (1976) :

H.R. 3904, 96th Cong., Ist Sess. (1979), reprinted
in The Multiemployer Pension Plan Amend-
ments Act of 1979: Hearings Before the Task
Force on Welfare and Pension Plans of the Sub-
comm. on Labor-Management Relations of the
House Comm. on Education and 3 96th
Cong., 1st Sess. (197/900

IRS Gen. Couns. Mem. 39,048 (Nov. 2, 1983),
reprinted in 10 Pens. Rep. (BNA) 1764 (1983)..

Multiemployer Pension Plan Amendments Act of
1979:

Hearing on H.R. 3904 Before the House
Comm. on Ways and Means, 96th Cong., 2d
. ee a

Page

25.
25

19, 21

19

15

19

22

Miscellaneous—Continued :

Hearings on H.R. 3904 Before the Task Force
on Welfare and Pension Plans of the Sub-
comm. on Labor-Management Relations of
the House Comm. on Education and Labor,
96th Cong., Ist Sess. (1979) -..............--------

Hearings on S. 1096 Before the Senate Comm.
on Labor and Human Resources, 96th
Cong., Ist Sess. (197972 —j——

Multiemployer Pension Plan Termination Insur-
ance Program: Hearing Before the Subcomm.
on Oversight of the House Comm. on Ways and
Means, 96th Cong., Ist Sess. (1979

NLRB, Gen. Counsel Rep. Summarizing Opera-
tions in Fiscal Year 1986, Daily Labor Rep.
(BNA) D-2 (Feb. 27, 19877

Note, Denying The Illegality Defense: An Enig-
matic Approach To The Delinquent Pension
Fund Contribution Problem, 34 Stan. L. Rev.
11 —T.——

Oversight of ERISA, 1977: Hearings on S. 2125
Before the Subcomm. on Labor of the Senate
Comm. on Human Resources, 95th Cong., 1st
«6. ae

BGC Op. Letter 86-4 (Feb. 28, 1986)

Prohibited Tranaction Exemption 76-1, 41 Fed.
SS. | . —

8. 1076, 96th Cong., Ist Sess., reprinted in Multi-
employer Pension Plan Amendments Act of
1979: Hearings Before the Senate Comm. on
Labor and Human Resources, 96th Cong., 1st
SS an

Staff of the Senate Comm. on Labor and Human
Resources, 96th Cong., 2d Sess. The Multiem-
ployer Pension Plan Amendments Act of 1980,
S. 1076: Summary and Analysis of Considera-

Page

16

15-16

15
21

19

tion (Comm. Print 1980) ............................16, 17, 18, 26

In the Supreme Court of the United States

OCTOBER TERM, 1986

No. 85-2079

LABORERS HEALTH AND WELFARE TRUST FUND FOR
NORTHERN CALIFORNIA, ET AL., PETITIONERS

V.
ADVANCED LIGHTWEIGHT CONCRETE Co., INC.

ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING PETITIONERS

INTEREST OF THE UNITED STATES

Several agencies of the United States have a substan-
tial interest in the proper resolution of this case. The
Secretary of Labor enforces the fiduciary responsibility
provisions of Title I of the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. (& Supp. III),
1001 et seg., as amended by the Multiemployer Pension
Plan Amendments Act of 1980 (MPPAA), Pub. L. No.
96-364, 94 Stat. 1208, which have been interpreted to
require trustees of multiemployer employee benefit plans
to act diligently and systematically to collect delinquent
contributions owed to such plans; the Secretary thus has
a strong, albeit indirect, interest in ensuring that plan
trustees have an effective mechanism for collecting such
delinquent contributions, especially since the Secretary
himself lacks standing under ERISA to file collection suits.
The Pension Benefit Guaranty Corporation (PBGC) ad-

(1)

2

ministers the plan termination insurance program estab-
lished by Title IV of ERISA, a program under which
PBGC assumes responsibility for paying pension benefits
to the participants and beneficiaries of terminated plans
that are inadequately funded; PBGC therefore has a
strong interest in assuring that plan trustees can and do
collect all required employer contributions. Finally, the
National Labor Relations Board (NLRB) administers the
unfair labor practice provisions of the National Labor
Relations Act (NLRA), 29 U.S.C. (& Supp. III) 151 et
seq., which have been interpreted to prohibit an employer
from unilaterally changing terms and conditions of em-
ployment during post-contract-expiration collective bar-
gaining; the NLRB has an interest both in preserving
the viability of its established procedures for resolving
unfair labor practice charges and in avoiding excessive
entanglement in collection disputes between employee bene-
fit plans and employers. This Court invited the Solicitor
General to express the views of the United States at the
petition stage of this case.

STATEMENT

1. Petitioners are multiemployer employee benefit plans
(Pet. 2). They were established by collective bargaining
agreements and trust agreements between the Northern
California District Council of Laborers and certain multi-
employer bargaining associations representing construc-
tion industry employers in Northern California, and be-
tween the District Council of Plasterers and Cement
Masons of Northern California and the same multi-
employer associations (ibid.). From at least 1980 to
1983, respondent, Advanced Lightweight Concrete Com-
pany, Inc., was a member of one of these multiemployer
bargaining associations, Associated General Contractors
of California (AGC), and thus was a party to AGC’s
collective bargaining agreements with the two unions (id.
at 2-3; Pet. App. A2-A3). Those agreements required
respondent to make specified monthly contributions to

3

petitioners for each hour that its covered employees
worked and to submit its books and records for audit
upon petitioners’ request (Pet. 2-3; Pet. App. A4).

By letter dated April 1, 1983, respondent notified the
unions that it was withdrawing bargaining authority
from AGC (Pet. 3; Pet. App. A4). Respondent indicated
that it was ready to negotiate independently with the un-
ions (id. at A4-A5; Pet. 3), but that it would not be bound
by AGC’s master agreements, or any of its successor
agreements, after June 15, 1983, the expiration date of
the extant agreements (Pet. App. A4). While the subse-
quent bargaining history between respondent and the
unions is disputed (id. at A5 & n.1), it is clear that re-
spondent did not enter into any new collective bargain-
ing agreements with the unions, ceased making contribu-
tions to petitioners on June 15, 1983, and refused to
permit petitioners to audit its books and records for the
period after June 15, 1983 (id. at A5-A7 & n.2). In
November 1983, the Regional Director of the National
Labor Relations Board (NLRB) refused to issue a com-
plaint based on a charge by one of the unions that re-
spondent had failed to bargain in good faith (id. at A5
n.1).

2. In December 1983, petitioners filed suit against
respondent in the United States District Court for the
Northern District of California, seeking to collect unpaid
contributions for the period after June 15, 1983, while
post-contract expiration negotiations were pending (Pet.
App. A6). Petitioners alleged, inter alia, that respondent
was bound under Section 8(a) (5) of the National Labor
Relations Act (NLRA), 29 U.S.C. 158(a) (5), to honor
during that period the contribution obligations established
by the expired collective bargaining agreements, and that

1In March and April 1984, petitioners filed separate suits alleg-
ing that respondent had failed to make its books and records
available for audit as required by the collective bargaining agree-
ments. These suits were consolidated with this action (Pet. App.
A6-A7).

4

the court had jurisdiction under Section 301 of the Labor-
Management Relations Act of 1947 (LMRA), 29 U.S.C.
185, and Sections 502 and 515 of the Employee Retire-
ment Income Security Act of 1974 (ERISA), 29 U.S.C.
1132, 1145, to enforce this obligation (Pet. App. A6-A7;
Pet. 3). Respondent answered, inter alia, that any obli-
gation it might have under the NLRA was not within the
jurisdiction of the district court and that, in any event,
its negotiations with the unions were at “impasse” and it
therefore had no NLRA-based contribution obligation
(Br. in Opp. 2 n.1, 3). The court granted summary
judgment for respondent (Pet. App. A7-A8; Pet. App. B).

3. The court of appeals affirmed on the ground that
the district court had no jurisdiction under either Section
301 or ERISA (Pet. App. Al-A36). It first noted that
“an employer’s failure to honor the terms and conditions
of an expired collective bargaining agreement pending
negotiations on a new agreement constitutes bad faith bar-
gaining in breach of sections 8 (a) (1), 8(a)(5) and 8
(d) of the [NLRA]” (Pet. App. A9-A10). But, it added,
“a collective bargaining agreement does not ‘survive’ [its
expiration] in the sense that it continues as a legally
operative document” (id. at Al2). Rather, the court said,
“the agreement’s terms ‘survive’ in order to define the
parameters of the employer’s obligation under section 8
(a) (5) to maintain the status quo during negotiations”
(ibid.). Accordingly, the court found that respondent was
entitled to “summary judgment on the trust funds’ sec-
tion 301-based causes of action” (Pet. App. A16), since
Section 301 confers jurisdiction on district courts only to
enforce rights created by a collective bargaining agree-
ment, and petitioners’ suit sought to enforce rights cre-
ated by the NLRA, not rights created by a collective
bargaining agreement (Pet. App. Al2-A13, A16).

The court then turned to the question whether the dis-
trict court had jurisdiction under Sections 502 and 515
of ERISA to enforce respondent’s alleged NLRA-based
post-contract-expiration contribution obligation (Pet. App.

5

A16-A31). The court noted that Section 502 confers
jurisdiction on the district courts to enforce obligations
arising under Section 515 (Pet. App. Al7 n.7) and that
Section 515 requires an employer “ ‘who is obligated to
make contributions to a multiemployer plan * * * under
the terms of a collectively bargained agreement [to] * * *
make such contributions in accordance with the terms and
conditions of * * such agreement’” (Pet. App. A16,
quoting 29 U.S.C. 1145). The court further noted that
“a phrase similar to ‘obligated to make contributions,’
which appears in section 515, is defined elsewhere in
[Section 4212(a) of] ERISA as ‘an obligation to con-
tribute arising * * * (1) under one or more collective
bargaining (or related) agreements, or (2) as a result
of a duty under applicable labor-management relations
law’” (Pet. App. A21 (quoting 29 U.S.C. 1392 (a)), and
that “[s]ubpart 2 of this definition would seem to include
obligations created by section 8(a)(5)” of the NLRA
(ibid.). But the court also observed that Section 4212(a)’s
definition of “obligation to contribute” is applicable
only to the part of ERISA that imposes liability on em-
ployers upon withdrawal from multiemployer pension
plans (Pet. App. A21-A22),* and said that the “similarity

2 Section 515 of ERISA, 29 U.S.C. 1145, provides that:

Every employer who is obligated to make contributions to a
multiemployer plan under the terms of the plan or under the
terms of a collectively bargained agreement shall, to the ex-
tent not inconsistent with law, make such contributions in
accordance with the terms and conditions of such plan or such
agreement.

Section 4212 (a) of ERISA, 29 U.S.C. 1392 (a), provides that:

For purposes of this part, the term “obligation to contribute”
means an obligation to contribute arising—
(1) under one or more collective bargaining (or related)
agreements, or
(2) as a result of a duty under applicable labor-
management relations law, but
does not include an obligation to pay withdrawal liability under
this section or to pay delinquent contributions.

6

between the phraseology in section 515 and that in [the
first subpart of the Section 4212(a) definition indicates]
* * * that Congress intended section 515 liability to be
less extensive than withdrawal liability” (id. at A23-
A24). And, the court added, there is “[n]o indication
* * * that, during its deliberations * * * Congress even
considered the problem of continuing obligations from ex-
pired agreements much less tha[t] it had a view on
resolving any conflict between section 515 and the primary
jurisdiction of the NLRB” (id. at A25-A26 (footnote
omitted) ).

In the absence of “useful statutory or Congressional
guidance on section 515,” the court concluded that the
matter had to be decided “by the application of accepted
labor law principles” (Pet. App. A31). It then said that,
„when presented with a dispute that involves adjudicat-
ing conduct which ‘is arguably within the compass of
[Section] 7 or [Section] 8 of the NLRA,’ a federal court
must defer to the primary jurisdiction of the NLRB”
(id. at A81-A32 (quoting San Diego Building Trades
Council v. Garmon, 359 U.S. 236, 245 (1959)). Applying
this principle, the court determined that respondent’s
“failure to pay contributions after the master agreements’
expiration is, at least, an arguable unfair labor practice”
(Pet. App. A33); that “[w]hile admittedly the failure
to pay may also violate section 515 of ERISA, adjudica-
tion of the merits depends entirely on the section 8(a) (5)
determination” (id. at A33-A34); and that “[m]aking
this underlying labor law determination is exclusively an
NLRB matter” (id. at A34 (footnote omitted)). Ac-
cordingly, having found “no persuasive evidence in either
the plain words or legislative history of ERISA * * *
that Congress intended section 515 to be an exception to
the general rule of NLRB preemption” (id. at A35-A36) ;
the court held that “the primary jurisdiction of the
INLRB] preempts [petitioners’] * * * suit in district
court under sections 502 and 515 of [ERISA] to recover

7

delinquent contributions accrued after a collective bargain-
ing agreement has expired” (id. at A2).*

SUMMARY OF ARGUMENT

1. The court below erred in concluding that the dis-
trict court lacked jurisdiction over petitioners’ suit
merely because it required resolution of an unfair labor
practice question. While the NLRB generally has pri-
mary jurisdiction to resolve unfair labor practice ques-
tions, Congress has at times granted federal courts ju-
risdiction over particular claims notwithstanding the
need to resolve unfair labor practice questions. See, ¢.g.,
Local 20, Teamsters Union v. Morton, 377 U.S. 252, 258-
259 & n.13 (1964) ; Connell Construction Co. v. Plumbers
& Steamfitters Local Union No. 100, 421 U.S. 616, 626-
635 (1975). If, as we contend, Sections 502 and 515
of ERISA confer jurisdiction on the district courts to
enforce an employer’s contribution obligations based on
the employer’s NLRA duty to honor the terms of an ex-
pired contract, then the fact that the court must resolve
an unfair labor practice question is not an obstacle.

2. Sections 502 and 515 of ERISA confer jurisdiction
on federal district courts over actions by plan fiduciaries
to require, among other things, any “employer who is
obligated to make contributions to a multiemployer plan
under the terms of * * * a collectively bargained agree-
ment * * * [to] make such contributions * * *” (29
U.S.C. 1145). Standing alone, the phrase “obligated to
make contributions * * * under the terms of a col-
lectively bargained agreement” could plausibly be read
in either of two ways: it could be read, as the court be-

Three other courts of appeals, following the reasoning of the
court below, have reached the same result. See Moldovan v. Great
Atlantic & Pacific Tea Co., 790 F.2d 894 (3d Cir. 1986); U.A. 198
Health & Welfare, Education & Pension Funds v. Rester Refrigera-
tion Service, Inc., 790 F.2d 423 (5th Cir. 1986); New Bedford Fish-
ermen’s Welfare Fund v. Baltic Enterprises, Inc., No. 85-1537 (1st
Cir. Mar. 11, 1987).

8

low read it, to refer only to obligations whose legal source
is the contract itself; but it can also be read, as we sug-
gest the statutory context requires, to include obligations
whose legal source is a public-law duty to honor “the
terms of a collectively bargained agreement” in speci-
fied circumstances.

The purposes of Section 515 strongly suggest the
broader reading. Congress added Section 515 to ERISA
in 1980 because delinquent contributions were creating
serious financial problems for multiemployer plans and
the remedies available for coilecting delinquent contribu-
tions were inefficient, cumbersome, and costly. Congress
enacted Section 515 for the explicit purpose of providing
plan trustees, who have a fiduciary duty to collect all con-
tributions owed to a plan, with a single, efficient remedy
for the collection of all delinquent contributions, whatever
the source of the contribution obligation or the timing of
the delinquency. A determination that Section 515, which
clearly covers delinquencies during the period of a col-
lective bargaining agreement, does not cover the employ-
er’s public-law obligation to continue to honor the terms
of the agreement for a period thereafter would defeat
the objective with which Congress legislated.

Congress intended Section 515 and the separate pro-
visions of ERISA dealing with withdrawal liability to
form an integrated enforcement scheme. Section 4212(a)
of ERISA states that, for purposes of the withdrawal
liability provisions, the term “obligation to contribute”
includes obligations arising “as a result of a duty under
applicable labor-management relations law” (29 U.S.C.
1392(a)). While the definition in Section 4212(a) is
not technically applicable to Section 515, it is reason-
able to conclude that Congress intended that Section 515
and Section 4212(a) would be given the same scope.
Applying different definitions to the contribution obliga-
tions identified in these provisions would mean that trus-
tees have no independent means for enforcing an em-

9

ployer’s obligation to fund its employees’ pensions be-
tween the expiration date of the employer’s collective
bargaining agreement and the date of a new agreement
or the employer’s withdrawal from the plan. There is
no evidence that Congress intended to create such an un-
warranted discontinuity in its integrated enforcement
scheme. N

The alternative to a Section 515 remedy is to require
plan trustees to proceed by way of an unfair labor prac-
tice charge, which would have to be filed with and prose-
cuted by the General Counsel of the NLRB. This NLRA
enforcement machinery is simply not designed for the
efficient collection of all pension fund contributions: the
General Counsel of the NLRB has unreviewable discre-
tion to determine whether an unfair labor practice com-
plaint should issue, and she properly exercises that dis-
cretion in accordance with her own enforcement priori-
ties; discovery is not available in NLRB proceedings; the
General Counsel or the NLRB itself may settle a case
without obtaining the consent of the charging party; and,
because it cannot impose punitive sanctions, the NLRB
has a limited ability to deter employers from becoming
delinquent in their contribution payments. In contrast,
Section 515 provides trustees with a direct cause of ac-
tion that they alone control; allows liberal discovery; and
requires courts to award attorneys fees and liquidated
damages to prevailing trustees.

3. Whatever ambiguity exists in Section 515’s cover-
age cannot be resolved by reference to the general rule
that the NLRB has primary jurisdiction to resolve un-
fair labor practice questions. Reference to the general
primary jurisdiction rule only begs the question whether
Congress intended, in Section 515, to establish an ex-
ception that would allow federal courts to address col-
lateral unfair labor practice questions that arise in
a delinquent contribution collection action. That question
must be resolved by reference to the language, legisla-
tive history, and purposes of Section 515.

10

ARGUMENT

SECTIONS 502 AND 515 OF ERISA CONFER JURIS-
DICTION ON THE APPROPRIATE DISTRICT COURT
TO ENFORCE AN EMPLOYER’S CONTRIBUTION OB-
LIGATIONS BASED ON THE DUTY UNDER SECTION
8(a)(5) OF THE NLRA TO HONOR THE TERMS OF
AN EXPIRED COLLECTIVE BARGAINING AGREE-
MENT

1. The court of appeals disposed of this case by rul-
ing that, whether or not Section 515 covers the obliga-
tion at. issue here, “the primary jurisdiction of the
[NLRB] preempts [petitioners’] suit in district court
under sections 502 and 515 of [ERISA] to recover de-
linquent contributions accrued after [the] collective bar-
gaining agreement[s] ha[d] expired” (Pet. App. A2).
This ruling was error. We agree with the court that
“(respondent’s] failure to pay contributions after the
master agreements’ expiration [was], at least, an argu-
able unfair labor practice” (id. at A33) and that “ad-
judication of the merits [of petitioners’ claims] depends
entirely on the section 8 (a) (5) determination” (id. at
A43). But it is not the case that “this underlying labor
law determination is exclusively an NLRB matter”
ibid.).

As a general rule, of course, the NLRA does vest the
NLRB with primary jurisdiction to decide unfair labor
practice questions. “Congress * * * considered that cen-
tralized administration of specially designed procedures
was necessary to obtain uniform application of [the
NLRA’s] substantive rules and to avoid th[o]se diversities
and conflicts likely to result from a variety of local pro-
cedures and attitudes toward labor controversies” (Gar-
ner V. Teamsters Union, 346 U.S. 485, 490 (1953)). Ac-
- cordingly, “[w]hen an activity is arguably subject to
[Section] 7 or [Section] 8 of the [NLRA],” this Court
has said that “the * * * federal courts must defer to the
exclusive competence of the [NLRB] * * *” (San Diego
Building Trades Council v. Garmon, 359 U.S. at 245) ).

11

Congress has, however, granted federal courts juris-
diction to decide certain kinds of claims even though the
decision requires resolution of an unfair labor practice
question. For example, Section 303 of the LMRA (29
U.S.C. 187) provides that anyone injured by a viola-
tion of Section 8 (b) (4) of the NLRA (29 U.S.C. 158
(b) (4)) may recover damages in court; in Local 20,
Teamsters Union v. Morton, 377 U.S. 252, 258-259 & n.13
(1964), this Court accordingly acknowledged that courts
have concurrent jurisdiction with the NLRB to deter-
mine whether challenged conduct violates the “prohibi-
tions embodied in [Section] 8 (b) (4).“ Similarly, Sec-
tion 301 of the LMRA (29 U.S.C. 185) empowers courts
to entertain suits concerning alleged breaches of collec-
tive bargaining agreements; in Smith v. Evening News
Ass’n, 371 U.S. 195, 197 (1962), this Court thus said
that “[t]he authority of the [NLRB] to deal with an
unfair labor practice which also violates a collective bar-
gaining [agreement] is not displaced by [Section] 301
fof the LMRA], but it is not exclusive and does not de-
stroy the jurisdiction of the courts in suits under [Sec-
tion] 301.” And, without exhausting the list of examples,
Section 1 of the Sherman Act (15 U.S.C. 1) makes it un-
lawful to enter into agreements that impose unreasonable
restraints of trade; in Connell Construction Co. V.
Plumbers & Steamfitters Local Union No. 100, 421 U.S.
616, 626-635 (1975), this Court held that therefore, in an
anti-trust suit alleging a violation of Section 1 of the
Sherman Act, a federal court had jurisdiction to decide
whether a challenged collective bargaining agreement
was proscribed by the “hot cargo” provisions of Sec-
tion 8(e) of the NLRA (29 U.S.C. 158(e)) and there-
fore constituted an unreasonable restraint on trade (in
violation of Section 1 of the Sherman Act). See also
Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 83-86 (1982)
(in suit under Section 502 of ERISA to recover delin-
quent contributions required by a collective agreement,
a federal court has jurisdiction to determine whether the

12

agreement violates Section 8(e) of the NLRA); Vaca
v. Sipes, 386 U.S. 171, 176-188 (1967) (a federal court
may adjudicate duty of fair representation claim in a
suit under Section 301 of the LMRA even though the
NLRB has concurrent jurisdiction to determine whether
the same claim violates Section 8(b) of the NLRA).

These cases show that federal courts may decide unfair
labor practice questions that “emerge as collateral issues
in suits brought under independent federal remedies”
(Connell Construction Co. v. Plumbers & Steamfitters
Local Union No. 100, 421 U.S. at 626). The question in
this case is simply whether, in Sections 502 and 515 of
ERISA, Congress has created an independent federal
remedy for the enforcement of contribution obligations
including the obligations at issue here. If so, the district
court had jurisdiction to decide the unfair labor practice
question that arises in connection with adjudicating these
obligations—i.e., whether respondent’s failure to pay the
contributions in question violated its duty under Section 8
(a) (5) of the NLRA to refrain from unilaterally chang-
ing terms and conditions of employment during post-
contract expiration collective bargaining.®

2. In our view, Sections 502 and 515 of ERISA do in
fact create an independent federal remedy for the en-
forcement of a contribution obligation arising from the
duty under Section 8(a)(5) of the NLRA to refrain
from unilaterally changing terms and conditions of em-

ployment during post-contract-expiration collective bar-
gaining.

5 Petitioners do not appear to contend in this Court that either
the expired collective bargaining agreements or the pensio: plan
documents require respondent to make such post-contract-expira-
tion contributions. Cf. Nolde Brothers, Inc. v. Local No. 358, Bakery
& Confectionery Workers Union, 430 U.S. 243 (1977) (arbitration
clause extends beyond term of collective bargaining agreement) ;
Pattern Makers’ Pension Trust Fund v. Badger Pattern Works, -
615 F. Supp. 792 (N.D. Ill. 1985) (fiduciary may enforce terms of
pension plan against employer even though collective bargaining
agreement has expired).

13

a. Section 502(a) (3) of ERISA gives district courts
jurisdiction over, inter alia, civil actions by plan fiduci-
aries to enjoin violations of Title I of ERISA, to redress
such violations, and generally to enforce the provisions
of Title I. 29 U.S.C. 1132 (a) (3). Section 515, which re-
quires employers to make contributions in accordance
with their collective bargaining agreements, is part of
Title I of ERISA. 29 U.S.C. 1145. The question, there-
fore, is whether Section 515 covers an employer’s obliga-
tion under Section 8(a))(5) of the NLRA to continue
making contributions to a pension plan, in accordance
with the terms of an expired agreement, during post-
contract-expiration collective bargaining.

b. We start with the language of Section 515. It states
(29 U.S.C. 1145) that “[e] very employer who is obligated
to make contributions to a multiemployer plan under the
terms of the plan or under the terms of a collectively
bargained agreement shall, to the extent not inconsistent
with law, make such contributions in accordance with
the terms and conditions of such plan or such agree-
ment.” The key phrase is “obligated to make contribu-
tions * * * under the terms of a collectively bargained
agreement.” That phrase has two plausible readings.

The phrase could be read to refer only to contribution
obligations that arise from the collective bargaining agree-
ment itself. See Mo-Kan Teamsters Pension Fund v. Bots-
ford Ready Miz Co., 605 F. Supp. 1441, 1444-1446 (W. D.
Mo. 1985). On that view, Section 515 would not cover an
NLRA-based contribution obligation, since the legal source
of that obligation is not the collective bargaining agree-
ment itself, but rather public law. See Hinson v. NLRB,
428 F.2d 133, 139 (8th Cir. 1970) ; Peerless Roofing Co. v.
NLRB, 641 F.2d 734, 736 (9th Cir. 1981). The phrase
can also, however, be read to refer to any contribution
obligation that is defined by “the terms of a collectively
bargained agreement.” On that view, Section 515 would
cover an NLRA-based contribution obligation, since the
extent of the obligation would be defined by the “terms

14

of a collectively bargained agreement.” See Laborers
Health & Welfare Trust Fund v. Hess, 594 F. Supp. 273,
279-280 (N.D. Cal. 1984); see generally American Dis-
tributing Co. v. NLRB, 715 F.2d 446, 452 (9th Cir.
1983), cert. denied, 466 U.S. 958 (1984) (emphasis
added) (under the NLRA, “an employer is required to
maintain the status quo and make payments in conformity
with the terms of an expired written agreement”) ;
Hinson v. NLRB, 428 F.2d at 139 (emphasis added)
(Alslince the status quo is quite obviously defined by
reference to the substantive terms of the expired contract,
it follows that, in a limited and special sense, those
pertinent contractual terms ‘survive’ the expiration
date“).

In similar eireumstances, where more than one in-
terpretation of ERISA’s language is plausible, this Court
has said that it will “ ‘look to the provisions of the whole
law, and to its object and policy’” (Pilot Life Ins. Co. v.
Dedeaux, No. 85-1043 (Apr. 6, 1987), slip op. 10 (cita-
tions omitted) ). See generally NLRB v. Lion Oil Co.,
352 U.S. 282, 297 (1957) (Frankfurter, J., concurring
in part and dissenting in part). Accordingly, to deter-
mine whether Congress intended to make NLRA-based
contribution obligations independently enforceable in
direct, ERISA-based, federai court actions, we turn to
the circumstances surrounding Section 515’s enactment
and the place that Section 515 takes in the overall ERISA
scheme.

e. Section 515’s legislative history suggests that Con-
gress intended to provide plan trustees with a single,
efficient remedy for the collection of all delinquent
contributions. Congress enacted Section 515 as part of
the Multiemployer Pension Plan Amendments Act of

® Raising the power of the linguistic microscope does not help.
Congress’s use of the phrase “under the terms of * * *,” rather than
“in accordance with the terms of,” might be said to favor the nar-
rower reading. On ‘he other hand, the narrower reading makes the
words “the terms of” a mere surplusage.

15

1980 (MPPAA), Pub. L. No. 96-364, 94 Stat. 1295. In the
MPPAA, Congress attempted to address comprehensively
the “problems which tend to discourage the maintenance
and growth of multiemployer pension plans” (29 U.S.C.
1001la(c) (2)), and “to provide reasonable protection for
the interests of participants and beneficiaries of finan-
cially distressed multiemployer pension plans” (29 U.S.C.
100la(e) (3)). To that end, Congress revised the system
by which the Pension Benefit Guaranty Corporation guar-
antees benefits to participants in multiemployer plans,
mandated that employers withdrawing from multiemployer
plans contribute whatever share of the plans’ unfunded
-vested liabilities is attributable to their employees’ prior
participation in such plans, and created new federal en-
forcement mechanisms to facilitate the collection of both
delinquent contributions and the lump sum liabilities that
employers incur upon withdrawal from a plan.“ See
29 U.S.C. 1132 (g) (2), 1145, 1322a-1322b; 29 U.S.C. (&
Supp. III) 1381-1461. Section 515 is the enforcement
mechanism that Congress created to facilitate the collec-
tion of delinquent contributions.

Delinquencies were among “[t]he most significant, and
the oldest, day-to-day problem[s] faced by multiemployer
plans” (Oversight of ERISA, 1977: Hearings on S. 2125
Before the Subcomm. on Labor of the Senate Comm. on
Human Resources, 95th Cong., Ist Sess. 391 (1977)
testimony of Theodore Groom) [hereinafter Hearings on
S. 2125]), and Congress had studied the delinquent con-
tribution problem for some time.“ During this study,

Neither petitioners nor respondent suggests that respondent has
withdrawn from its plans (or incurred any such withdrawal lia-
bility).

8 See, e.g., Hearings on S. 2125, 391-394; ERISA Improvements
Act of 1978: Joint Hearings on S. 3017 Before the Subcomm. on
Labor of the Senate Comm. on Human Resources and the Subcomm.
on Private Pension Plans and Employee Fringe Benefits of the Sen-
ate Comm. on Finance, 95th Cong., 2d Sess. 123 (1978); Multiem-
ployer Pension Plan Amendments Act of 1979: Hearings on S. 1076

16

Congress learned that, where delinquencies occur, plans
lose investment income, incur increased administrative
expenses (for detecting and collecting delinquencies),
have greater difficulty formulating and meeting funding
standards, and must require nondelinquent employers to
fund the pensions of delinquent employers’ employees.
See 126 Cong. Rec. 23039 (1980) (remarks of Rep.
Thompson); Staff of the Senate Comm. on Labor and
Human Resources, 96th Cong., 2d Sess., The Multi-
employer Pension Plan Amendments Act of 1980, S. 1076:
Summary and Analysis of Consideration 43-44 (Comm.
Print 1980) {hereinafter Comm. Print].“ Moreover, Con-

Before the Senate Comm. on Labor and Human Resources, 96th
Cong., Ist Sess. 523 (1979) [hereinafter Senate Hearings on S.
1076]; Multiemployer Pension Plan Termination Insurance Pro-
gram: Hearing Before the Subcomm. on Oversight of the House
Comm. on Ways and Means, 96th Cong., Ist Sess. 121-122 (1979);
The Multiemployer Pension Plan Amendments Act of 1979: Hear-
ings on H.R. 3904 Before the Task Force on Welfare and Pension
Plans of the Subcomm. on Labor-Management Relations of the
House Comm. on Education and Labor, 96th Cong., 1st Sess. 772,
808 (1979) [hereinafter House Hearings on H.R. 3904); The Multi-
employer Pension Plan Amendments Act of 1979: Hearing on H.R.
3904 Before the House Comm. on Ways and Means, 96th Cong., 2d
Sess. 193 (1980).

The Staff of the Senate Committee on Labor and Human Re-
sources explained (Comm. Print 43-44) that:

Delinquencies of employers in making required contributions
are a serious problem for most multiemployer plans. Failure
of employers to make promised contributions in a timely
fashion imposes a variety of costs on plans. While contribu-
tions remain unpaid, the plan loses the benefit of investment
income that could have been earned if the past due amounts
had been received and invested on time. Moreover, additional
administrative costs are incurred in detecting and collecting
delinquencies. Attorneys’ fees and other legal costs arise in
connection with collection efforts.

These costs detract from the ability of plans to formulate
or meet funding standards ard adversely affect the financial
health of plans. Participants and beneficiaries of plans as well
as employers who honor their obligation to contribute in a

17

gress found that “[r]ecourse available under current law
for collecting delinquent contributions is insufficient and
unnecessarily cumbersome and costly” (126 Cong. Rec.
23039 (1980) (remarks of Rep. Thompson)).’*® Thus,
those who proposed and supported Section 515’s enact-
ment described it as a mechanism that would “permit
trustees of plans to recover delinquent contributions
efficaciously” (id. at 23288 (remarks of Sen. Williams) ),
“foster the preservation of the private multiemployer plan
system * * * [by] discourag ling] delinquencies and
simplify ing! delinquency collection“ (Comm. Print 44),
and “clarify the law * * * by providing a direct, un-
ambiguous ERISA cause of action to a plan against a
delinquent employer” (126 Cong. Rec. 23039 (1980) (re-
marks of Rep. Thompson) ).

Section 515 thus provides a cause of action to collect
amounts owed “under the terms of the plan or under the
terms of a collectively bargained agreement.” The legis-
lative history, while not speaking directly to the present
issue, suggests that Congress intended to cover the uni-
verse—to provide plan trustees with a single, efficient
cause of action for collecting all delinquent contributions.
See, e. g., 126 Cong. Rec. 23039 (1980) (remarks of Rep.
Thompson); id. at 23288 (remarks of Sen. Williams).

timely fashion bear the heavy cost of delinquencies in the form
of lower benefits and higher contribution rates. Moreover, in
the context of this legislation, uncollected delinquencies can add
to the unfunded liability of the plan and thereby increase the
potential withdrawal liability for all employers.

For additional discussion of the problems that delinquencies cause
multiemployer plans, see Note, Denying The Illegality Defense:
An Enigmatic Approach To The Delinquent Pension Fund Con-
tribution Problem, 34 Stan. L. Rev. 221, 223-228 (1981).

10 The Staff of the Senate Committee on Labor and Human Re-
sources explained that “{s]ome simple collection actions brought
by plan trustees have been converted into lengthy, costly and com-
plex litigation concerning claims and defenses unrelated to the
employer’s promise and the plans’ entitlement to the contributions”
(Comm. Print 44).

18

Nothing in the legislative history suggests that Congress
attached any importance to the difference between an
employer obligated under a live agreement and an em-
ployer statutorily bound to honor an expired one, or that
Congress intended to require trustees to recover pre-
contract-expiration and post-contract-expiration delin-
quencies in different forums.

d. The argument that the term “obligated to make
contributions” in Section 515 should be read to cover con-
tribution obligations arising from the duty under Section
8(a) (5) of the NLRA to refrain from unilaterally chang-
ing terms and conditions of employment during post-
contract-expiration collective bargaining is reinforced by
the definition of a comparable term that appears in the
withdrawal liability part of the statute. Section 4212(a)
of ERISA states that, for purposes of the withdrawal
liability part of the statute, an employer has an “obliga-
tion to contribute” when it has “an obligation to con-
tribute arising (1) under one or more collective bargain-
ing (or related) agreements, or (2) as a result of a duty
under applicable labor-management relations law * * *”
(29 U.S.C. 1392 (a)). The second clause of this defini-
tion plainly permits arbitrators and courts making with-
drawal liability determinations to take into account
whether an employer has any contribution obligations
arising from its duties under the NLRA. See Comm.
Print 12-14; Woodward Sand Co. v. Western Conference
of Teamsters Pension Trust Fund, 789 F.2d 691, 695
(9th Cir. 1986); J. A. M. National Pension Trust Fund v.
Schulze Tool & Die Co., 564 F. Supp. 1285, 1289-1296
(N.D. Cal. 1983) ; Garland Coal Co., 7 Employee Benefits
Cas. (BNA) 1771, 1779-1782 (Dreyer, Arb. June 10,
1986). Because the delinquent contribution and with-
drawal liability provisions were enacted at the same time
and play complementary roles in the MPPAA scheme, it is
reasonable to conclude that Congress intended the term
“obligated to make contributions,” which appears in Sec-

19

tion 515, to have a meaning comparable to the term
“obligation to contribute,” which appears in Section 4212
(a).

The Section 4212 (a) definition of the obligation to
contribute” applies only If lor purposes of [the with-
drawal liability] part“ of ERISA (29 U.S.C. 1392 (a))
and therefore cannot apply to Section 515 by its “own
force” (Nachman Corp. v. Pension Benefit Guaranty
Corp., 446 U.S. 359, 370 n.14 (1980)). But the definition
in Section 4212(a) “may otherwise reflect the meaning of
the term[] defined as used in other Titles“ of ERISA
(ibid.). Here, Congress expressly provided that, for pur-
poses of federal court enforcement, the delinquent contri-
bution and withdrawal liability provisions should be
“treated in the same manner” (29 U.S.C. 1451(b); see
also 29 U.S.C. 1401(d)) and indicated that the two pro-
visions addressed complementary aspects of the same
legislative concern. See 126 Cong. Rec. 23288 (1980)
(remarks of Sen. Williams); id. at 23039 (remarks of
Rep. Thompson); id. at 20180 (colloquy between Sen.
Williams and Sen. Matsunaga). Accordingly, the ques-
tion whether an employer has a contribution obligation
arising from an NLRA-based duty should be equally
adjudicable by courts under Sections 515 and 4212(a) of

11 The legislative history of the two provisions neither confirms
nor refutes the point. The withdrawal liability provisions were
introduced simultaneously in both houses of Congress on May 3,
1979. See H.R. 3904, 96th Cong., Ist Sess. (1979), reprinted in House
Hearings on H.R. 3904, at 3; S. 1076, 96th Cong., Ist Sess. (1979),
reprinted in Senate Hearings on S. 1076, at 3. Neither bill con-
tained a provision concerning delinquent employer contributions.
See S. 1076, 96th Cong., Ist Sess. (1979); H.R. 3904, supra. The
provision for delinquent contributions was added later by floor
leaders in both houses. 126 Cong. Rec. 23039 (1980) ; id. at 23288.
The legislative history does not directly discuss the connection
between the delinquent contribution and withdrawal liability pro-
visions, except to state that they should be enforced in the same
manner. See House Hearings on H.R. 3904, at 808; 126 Cong. Rec.
23039 (1980) ; id. at 23288-23289.

20

ERISA.” See Woodward Sand Co. v. Western Confcrence
of Teamsters Pension Trust Fund, 789 F.2d 691 (9th
Cir. 1986); Carpenters Local Union No. 1846 v. Pratt-
Farnsworth, Inc., 690 F.2d 489 (5th Cir. 1982), cert.
denied, 464 U.S. 932 (1983); ef. Northeross v. Memphis
Board of Education, 412 U.S. 427, 428 (1973) (the
similarity of language in two statutory provisions is “a
strong indication that the two statutes should be inter-
preted pari passu’’).

Moreover, the delinquent contribution and withdrawal
liability provisions form an integrated scheme under
which plan trustees may use federal law to require em-
ployers to fulfill their promises to fund pensions for their
employees. The delinquent contribution provisions ensure
that, when an employer has become “obligated to make
contributions,” it “shall, to the extent not inconsistent
with law, make such contributions in accordance with the
terms and conditions. of such plan * * *” (29 U.S.C.
1145). The withdrawal liability provisions ensure that,
when an employer “withdraws from a multiemployer plan
in a complete withdrawal * * * the employer [shall be]
liable to the plan” for a portion of the plan’s unfunded
vested benefits, such that the burden of its employees’
pensions will not fall on the remaining employers or plan
beneficiaries. 29 U.S.C. 1381(a)(1).% Together, the two

12 Congress clearly intended trustees, arbitrators, and courts to
make impasse determinations when necessary to assess and collect
withdrawal liability, despite a potential inroad on the traditional
primary jurisdiction of the NLRB. No greater inroad will result
if such determinations are made by trustees and courts in actions
under Section 515.

18 The statute provides that a complete withdrawal” occurs only
when an employer “permanently ceases to have an obligation to
contribute under the plan” (29 U.S.C. 1383(a)(1)). An employer
cannot, however, prevent a complete withdrawal from occurring by
becoming delinquent in paying contributions to the plan; Section
4212(a) provides that, for purposes of determining withdrawal
liability, the term “obligation to contribute” “does not include

21

provisions ensure that an employer’s obligation to fund
its employees’ pensions is fully enforceable under ERISA
with respect to the entire period for which the employ-
er’s employees will have claims against the multiemployer
plan. See 126 Cong. Rec. 23288 (1980) (remarks of
Sen. Williams) ; id. at 23039 (remarks of Rep. Thomp-
son); id. at 20180 (colloquy between Sen. Williams and
Sen. Matsunaga).

Applying different definitions to the contribution ob-
ligations identified in the delinquent contribution and
withdrawal liability provisions would create an unwar-
ranted discontinuity in this integrated enforcement ma-
chinery. ERISA would provide plan trustees with an
independent means for enforcing an employer’s obliga-
tions arising (i) during the term of the underlying agree-
ment and (ii) upon withdrawal from the plan.“ But,
if the phrase “obligated to contribute” in Section 515
does not mean the same thing as the phrase “obligation

an obligation to pay withdrawal liability under this section or to
pay delinquent contributions” (29 U.S.C. 1392 (a)).

The parties’ continuing but unsuccessful attempts to negotiate
an agreement may constitute a “labor dispute” and, if so, the
suspension of contributions by the employer would not give rise
to withdrawal liability. See 29 U.S.C. 1398 (2); TIN. F- DOC, Ine.
v. New York State Teamsters Conference Pension & Retirement
Fund, 580 F. Supp. 621 (N.D.N.Y.), aff'd, 7385 F.2d 60 (2d Cir.
1984). Though the plan trustees may seek retroactive withdrawal
liability once the employer is finally found to have withdrawn
from the plan (PBGC Op. Letter 86-4 (Feb. 28, 1986)), they
would not be able to do so if the parties ultimately resolved their
labor dispute and, in doing so, provided that the employer shall
continue to participate in the plan. Whether continued participa-
tion in the plan includes full payment of delinquent contributions
may depend upon either the terms of the plan itself or the union’s
ability to secure the employer’s agreement to pay such contributions.
See Southwest Administrators, Inc. v. Rozay'’s Transfer, 791 F.2d
769, 771 & n.1 (9th Cir. 1986). Of course, the expense involved in
paying delinquent contributions may itself be a factor in the
negotiations.

to contribute” in Section 4212(a), ERISA would not pro-
vide plan trustees with any means for enforcing an em-
ployer’s obligations with respect to the period between
the expiration of the collective bargaining agreement and
the date of a new agreement or the employer’s with-
drawal from the plan, even though the employer would
have such an obligation, and even though ERISA would
require plan trustees to credit all employee service per-
formed during that period, whether the contributions are
ultimately recovered or not.”

Such a discontinuity in the statutory enforcement ma-
chinery would be quite important. Collective bargaining
agreements typically have only two-to-three year terms,
and employees often continue working (and negotiators
continue bargaining) beyond the expiration dates of those
agreements. Delinquencies in the payment of contribu-
tions during this period are a routine and burdensome
problem for multiemployer pension plans. We find no
evidence that Congress intended to leave such a discon-
tinuity in the otherwise “comprehensive and reticulated”
scheme (Nachman Corp. v. Pension Benefit Guaranty

1829 U.S.C. 1053(b)(1)(G) states that “all of an employee's
years of service with the employer or employers maintaining the
plan shall be taken into account.” See also 29 U.S.C. 1052(b) (1),
1054 (b) (3) (A); 29 C.F.R. 2530.210(c) (2). The Department of
Labor has interpreted this provision as requiring that credit “be
given solely on the basis of service performed for [a participating
employer], regardless whether that employer is required to con-
tribute for such service or has made or defaulted on his required
contributions.” Dep’t of Labor Advisory Op. 76-89 (Aug. 31, 1976),
reprinted in Pens. Rep. (BNA) No. 221, at R-25 (Jan. 8, 1979).
See also Dep't of Labor Advisory Op. 78-28A (Dec. 5, 1978),
reprinted in Pens. Rep. (BNA) No. 221, at R24-R25 (Jan. 8,
1979). Similarly, the Internal Revenue Service has stated that a
“multiemployer plan must credit all years of service of employees
as long as the employer is obligated to contribute to the plan on
behalf of such service.” IRS Gen. Couns. Mem. 39,048 (Nov. 2,
1983), reprinted in 10 Pens. Rep. (BNA) 1764, 1765 (1983).

23

Corp., 446 U.S. 359, 361 (1980)) that it enacted spe-
cifically to address the many “problems which tend to
discourage the maintenance and growth of multiemployer
pension plans” and to “provide reasonable protection for
the interests of participants and beneficiaries of finan-
cially distressed multiemployer pension plans” (29 U.S.C.
1001la(c) (2) and (3)).

3. If plan trustees are not able to recover post-contract-
expiration delinquent contributions in suits under Section
515, their only alternative is to file an unfair labor prac-
tice charge with the NLRB. That remedy is not suited
to this purpose. ERISA imposes strict fiduciary duties
of loyalty and care on plan trustees™ and specifically
deems plan trustees to have violated these duties if they
allow participating employers to gain even temporary
use of funds to which their plan is entitled.“ This Court

1 Under the duty of loyalty, a plan fiduciary “shall discharge his
duties with respect to a plan solely in the interest of the participants
and beneficiaries and * * * for the exclusive purpose of * * * pro-
viding benefits to participants and their beneficiaries; and * * *
defraying reasonable expenses of administering the plan” (29
U.S.C. 1104 (a) (1) ( Under the duty of care, a fiduciary
“shall discharge his duties with respect to a plan * * * with the
care, skill, prudence, and diligence under the circumstances then
prevailing that a prudent man acting in a like capacity and familiar
with such matters would use in the conduct of an enterprise of a
like character and with like aims” (29 U.S.C. 1104(a) (1) ()).

1729 U.S.C. 11086 (a) (1) (B) states that a] fiduciary with re-
spect to a plan shall not cause the plan to engage in a transaction,
if he knows or should know that such transaction constitutes a
direct or indirect * * * lending of money or other extension of
credit between the plan and a party in interest.” The Secretary
of Labor has long interpreted this provision to require trustees to
“establish and implement collection procedures which are reason-
able, diligent, and systematic” (Prohibited Transaction Exemption
76-1, 41 Fed. Reg. 12740, 12741 (1976)). This Court has cited
that interpretation with approval. See Central States, Southeast
& Southwest Areas Pension Fund v. Central Transport, Inc., 472
U.S. 559, 567 n.7 (1985).

24

has accordingly stated that “ERISA clearly assumes that
trustees will act to ensure that a plan receives all funds
to which it is entitled” and that trustees are “respon-
siblſe] for assuring full and prompt collection of con-
tributions owed to the plan” (Central States, Southeast
& Southwest Areas Pension Fund v. Central Transport,
Inc., 472 U.S. 559, 571, 573 (1985)). Interpreting Sec-
tion 515 to require trustees to resort to NLRA enforce-
ment remedies for the collection of post-contract-expira-
tion delinquencies would greatly impede the ability of
plan trustees to carry out these fiduciary tasks.

The NLRA enforcement scheme is designed to facili-
tate the resolution of labor disputes, not the collection of
delinquent contributions. The NLRA, for example, vests
the NLRB’s General Counsel with “unreviewable discre-
tion to refuse to institute an unfair labor practice com-
plaint” (Vaca v. Sipes, 386 U.S. at 182) and, in exer-
cising her discretion, the General Counsel is guided by
numerous practical considerations—such as the serious-
ness of the offense and the likelihood of its repetition,
and the government resources available for prosecution—
as well as the merits of the charge. See Roselle Shoe
Corp., 185 N.L.R.B. 472, 475 (1962), enforced sub nom.
Textile Workers Union v. NLRB, 315 F.2d 41 (D.C. Cir.
1963) ; see also Container Systems Corp. v. NLRB, 521
F.2d 1166, 1171-1172 (2d Cir. 1975). Thus, requiring
plan trustees to resort to the NLRB may, in limited cir-
cumstances, mean that they have no recourse for collect-
ing delinquencies notwithstanding the merits of their
charge. Furthermore, even where the General Counsel
issues an unfair labor practice complaint, the NLRB does
not allow interested persons to obtain discovery. See
NLRB v. Robbins Tire & Rubber Co., 487 U.S. 214, 236-
242 (1978). The denial of discovery may be particularly
detrimental to third parties such as trustees, who do not
directly participate in collective bargaining negotiations
and whose interest in collecting delinquent contributions

25

may not align precisely with interests of either the em-
ployer or the union.“ Moreover, the NLRA authorizes
the General Counsel and the NLRB to settle unfair labor
practice charges without obtaining the charging party’s
consent and for less than “make-whole” relief (see 29
U.S.C. 160 (e); 29 C.F.R. 101.2, 101.4, 101.9 (e)); thus,
the trustees’ interest in fully collecting all contributions
owed to a pension plan may be compromised without their
consent.“ Finally, the NLRB cannot impose any type of
punitive sanction and thus has only a limited ability to
deter employers from becoming delinquent in the first
place. See Wisconsin Dep’t of Industry, Labor & Human
Relations v. Gould, No. 84-1484 (Feb 26, 1986), slip op.
5-6 & n.5; Hassett Maintenance Corp., 260 N.L.R.B. 1211
(1982).

In contrast, the ERISA enforcement scheme is spe-
cially designed to “foster the preservation of the private

18 The union’s interest in obtaining a favorable contract may
outweigh its interest in insuring that all delinquent contributions
are paid. The union may therefore be unwilling to initiate pro-
ceedings before the NLRB, to assist the trustees in doing so, or to
pressure the employer to fulfill its obligations to employee benefit
plans. See generally NLRB v. Amar Coal Co., 453 U.S. 322, 334-
338 (1981); Chemical & Alkali Workers v. Pittsburgh Plate Glass
Co., 404 U.S. 157, 171-175 (1971); Central States Southeast &
Southwest Areas Pension Fund v. Kraftco, Inc., 799 F.2d 1098,
1100-1102 (6th Cir. 1986), cert. denied, No. 86-881 (Feb. 23, 1987).
Accordingly, this Court has repeatedly rejected arguments that
trustees can or should rely on unions to collect delinquent pension
fund contributions. See Central States, Southeast & Southwest
Areas Pension Fund v. Central Transport, Inc., 472 U.S. at 575-577;
Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364, 373-876
(1984).

10 In 1986, the NLRB settled 91.7% of all “meritorious” unfair
labor practice cases. See NLRB General Counsel’s Report Sum-
marizing Operations In Fiscal 1986, Daily Labor Rep. (BNA)
D-2 (Feb. 27, 1987). Such settlements do not necessarily result in
full recovery of delinquent contributions by plans. See Mo-Kan
Teamsters Pension Fund v. Botsford Ready Miz Co., 605 F. Supp.
1441 (W.D. Mo. 1985).

26

multiemployer plan system * * * [by] discourag[ing]
delinquencies and simplify ling] delinquency collection”
(Comm. Print 44). Section 515 provides trustees with a
direct, unambiguous cause of action for collecting de-
linquencies. The trustees have control over the action and
no third party can compromise their interest in collecting
all contributions owed to a plan. Moreover, liberal rules
of discovery govern the action and provide trustees with a
means for determining whether and to what extent con-
tributions are actually owing and delinquent. Finally,
Section 502 (g) (2) of ERISA requires courts, where
trustees are victorious, to award reasonable attorney’s
fees, costs, unpaid contributions, interest on the unpaid
contributions, and an additional amount equal to the
greater of interest or specified liquidated damages. See
29 U.S.C. 1132 (g) (2). Thus, the ERISA enforcement
scheme adds some important muscle to the trustees’
struggle against delinquent contributors and delinquent
contributions.

When Congress added Section 515 to ERISA’s enforce-
ment scheme, it stated that “[r]jecourse available under
current law for collecting delinquent contributions [was]
insufficient and unnecessarily cumbersome and costly”
(126 Cong. Rec. 23039 (1980) (remarks of Rep. Thomp-
son)). NLRB enforcement proceedings were part of the
then-available recourse. Accordingly, Congress could not
have intended to require plan trustees to rely solely on
the NLRB for enforcement of NLRA-based contribution
obligations. Rather, since it viewed “[t]he civil enforce-
ment scheme of § 502(a) as one of the essential tools for
accomplishing the stated purposes of ERISA” (Pilot Life
Ins. Co. v. Dedeauæ, slip op. at 11-12), Congress must
have presumed that Section 515 would cover these obliga-
tions as well.

4. Although its opinion is not altogether clear on the
point (compare Pet. App. A21-A26 with A26 n.12 and
A33-A34), the court below acknowledged that “the fail-

27

ure to pay may also violate section 515 of ERISA” (id.
at A33). It found, however, that the language and legis-
lative history of Section 515 are sufficiently ambiguous
to require that its interpretation be resolved by refer-
ence to “accepted labor law principles,” specifically, the
principle that the NLRB has primary jurisdiction to re-
solve unfair labor practice questions. See Pet. App. A31-
A32. We do not think that the question of Congress’s
intent under Section 515 can be resolved in this fashion.

As noted earlier, the NLRA vests the NLRB with
primary jurisdiction over unfair labor practice questions
to ensure that the statute is uniformly and consistently
interpreted. As also noted earlier, however, Congress has
occasionally determined that this concern for uniformity
of decision should yield to other considerations and, in
such situations, has established independent mechanisms
for enforcing particular NLRA-based rights. See Local
20, Teamsters Union v. Morton, 377 U.S. at 258-259 &
n.13; Connell Construction Co. v. Plumbers & Steam-
fitters Local Union No. 100, 421 U.S. at 626-635. The
question whether Congress intends any particular NLRA-
based right to be enforceable by an independent mech-
anism (and thus to create a particular exception to the
general primary jurisdiction rule) obviously cannot be
answered by reference to the general primary jurisdiction
rule itself; reference to the general primary jurisdiction.
rule only begs the question whether Congress intended
to establish an exception to it. The question whether
Congress intended to establish an exception to the general
primary jurisdiction rule, or, stated differently, to create
an additional remedy for the violation of an NLRA-based
right, can be answered only by reference to the language,
legislative history, and purposes of the federal statute
alleged to establish the exception or to create the addi-
tional remedy—in this instance, Section 515 of ERISA.
Any ambiguity in the meaning of this statute—as with

28

the ambiguity in the meaning of any other statute—must
be resolved on its own terms.”

20 Although we see no obstacle to a court determining, in a case
properly brought under Sections 502 and 515, whether an employer
improperly ceased making contributions to a fund prior to reaching
impasse in negotiations, deference to the NLRB’s judgment of
whether and when impasse occurred is nevertheless preferable
where an NLRB judgmnt will be forthcoming. See Charles D.
Bonanno Linen Service, Inc. v. NLRB, 454 U.S. 404, 413 (1982);
see also NLRB v. Bildisco & Bildisco, 465 U.S. 513, 533-534 (1984).
If the General Counsel has issued a complaint concerning a bad
faith bargaining charge filed by either the trustees of a plan or a
union, a federal court concurrently considering a Section 515 en-
forcement action by trustees should refrain from deciding any
“impasse” question and await that issue’s resolution by the NLRB.
See Northern California District Council of Hod Carriers v.
Opinski, 673 F.2d 1074 (9th Cir. 1982); Carpenters Local Union
No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 515 (5th Cir.
1982), cert. denied, 464 U.S. 932 (1983). The NLRB decision should
be binding in the trustees’ federal court action, provided that the
trustees had an adequate opportunity to litigate the issue in the
NLRB proceedings. See Moldovan v. Great Atlantic & Pacific Tea
Co., 790 F.2d 894, 899 (3d Cir. 1986) ; see generally Carey v. West-
inghouse Corp., 375 U.S. 261, 272 (1964); United States v. Utah
Construction & Mining Co., 384 U.S. 394, 421-422 (1966).

Here, the Regional Counsel of the NLRB refused to issue a com-
plaint with respect to the union’s bad faith bargaining charge.
Pet. App. A5 n.1. Accordingly, the district court had no reason
to defer its resolution of the “impasse” question.

—yͤ—— —

—— 2 —

gZ9Ü•— —

29

CONCLUSION

The judgment of the court of appeals should be re-
versed.

Respectfully submitted.
CHARLES FRIED
Solicitor General
Louis R. COHEN
Deputy Solicitor General
GLEN D. NAGER
Assistant to the Solicitor
General
GEORGE R. SALEM
Solicitor of Labor
ALLEN H. FELDMAN
Associate Solicitor
CAROL A. DE DEO
Deputy Associate Solicitor
ELLEN L. BEARD
Attorney
Department of Labor
ROSEMARY M. COLLYER
General Counsel
National Labor Relations Board
MAY 1987

. 8. covennment paimrine orice, 1967 191483 40326

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0210%3A13. Public record. Not legal advice.