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

N

e

y> No. 85-2079

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

LABORERS HEALTH AND WELFARE TRUST FUND

FOR NORTHERN CALIFORNIA, et al.,

Petitioners,

v.

ADVANCED LIGHTWEIGHT CONCRETE Co., INC.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION FOR LEAVE TO FILE

BRIEF AMICUS CURIAE AND BRIEF AMICUS CURIAE

OF THE CHAMBER OF COMMERCE OF THE UNITED

STATES IN SUPPORT OF THE RESPONDENT

STEPHEN A. BOKAT

Counsel of Record

ROBIN S. CONRAD

PAULA J. CONNELLY

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce of the

United States

WILSON - Eres PRINTING Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 85-2079

LABORERS HEALTH AND WELFARE TRUST FUND

FOR NORTHERN CALIFORNIA, et al.,

Petitioners,

V.

ADVANCED LIGHTWEIGHT CONCRETE Co., INC.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION OF THE CHAMBER OF COMMERCE OF THE

UNITED STATES FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The Chamber of Commerce of the United States

(“Chamber”) hereby respectfully moves for leave to file

the attached brief amicus curiae-in support of the Re-

spondent pursuant to Rule 36.3 of the Rules of this Court.

Counsel for the Respondent has consented to the filing of

this brief, but counsel for the Petitioners has declined

to consent.

1 The consent letter has been filed with the Clerk of this Court.

The Chamber is the nation’s largest federation of busi-

nesses, representing more than 180,000 corporations,

partnerships and proprietorships, as well as several thou-

sand trade associations and state and local chambers of

commerce. An important aspect of the Chamber’s activi-

ties is presenting its members’ views on business issues

before the courts on all levels. In this capacity, the

Chamber has participated as amicus curiae in a wide

spectrum of labor litigation.”

In the instant case, the Petitioners ask this Court to

hold that federal district courts have jurisdiction under

§§ 502 and 515 of the Employee Retirement Income Secu-

rity Act (“ERISA”) to determine the obligations of parties

to a collective bargaining relationship whose contract has

expired. Section 515 requires employers who are “obli-

gated to make contributions to a multiemployer plan un-

der the terms of a collectively bargained agreement” to

make those contractually mandated contributions. Peti-

tioners argue that this provision should be construed to

obligate employers to continue making contributions after

the contract has expired, until bargaining in good faith

to impasse about any change in contribution level. This

construction of § 515, read together with ERISA’s juris-

dictional grant in § 502, would empower federal district

courts to adjudicate any claim of failure to bargain in

good faith to impasse before reducing or ceasing con-

tributions. While admitting that adjudicating such claims

would force the federal courts to interpret the post-

contract bargaining obligations imposed by § 8(a)(5) of

the National Labor Relations Act, the Petitioners argue

that this would be “no great imposition on federal labor

policy.” *

2 See, e.g., Caterpillar, Inc. v. Williams, 55 U.S.L.W. 4804 (U.S.

June 9, 1987) ; Fort Halifax Packing Co. v. Coyne, 55 U.S.L.W. 4699

(U.S. June 1, 1987); NLRB v. United Food & Commercial Workers

Union, Local 23, cert. granted, 107 S. Ct. 871 (1987) (No. 86-594).

3 See Petition for Writ of Certiorari at 11.

To the contrary, the Chamber fears that the holding

Petitioners seek would lead to destruction of uniformity

in labor law principles and embroil the federal courts in

the collective bargaining process. Empowering the more

than 500 federal district court judges to implement their

individual interpretations of post-contract obligations

would undermine Congress’s objective in creating a

single, centralized agency with significant expertise to

regulate parties’ rights and duties in ongoing bargaining

relationships. Congress did not intend to offer litigants a

choice between the Board and the courts in disputes in-

volving bargaining obligations solely because they may

affect benefit contributions. Nor did Congress intend to

subject employers engaged in post-contract negotiations

to the spectre of successive lawsuits in federal court chal-

lenging their bargaining tactics.

Because the Chamber is well-suited to present to the

Court the ramifications for businesses of this dramatic

expansion of federal district court jurisdiction, it submits

this brief, and urges the Court to affirm the decision of

the Ninth Circuit below.

Respectfully submitted,

STEPHEN A. BOKAT

Counsel of Record

ROBIN S. CONRAD

PAULA J. CONNELLY

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce of the

United States

July 10, 1987

TABLE OF CONTENTS

ee ii

STATEMENT OF INTEREST 1

TIENEN — 1

ARGUMENT

I. ALLOWING FEDERAL COURTS TO DETER-

MINE THE SCOPE OF POST-CONTRACT

BARGAINING OBLIGATIONS WOULD DE-

STROY UNIFORMITY IN LABOR POLICY

AND EMBROIL THE JUDICIARY IN THE

COLLECTIVE BARGAINING PROCESS 4

A. Determining the Scope of Post-contract Ob-

ligations is a Matter of Federal Labor Law.... 4

B. Congress Empowered the Board to be the

Exclusive Forum to Interpret Federal Labor

Law, and the Board has Developed Signifi-

cant Expertise in Administering the NLRA..

C. Reversing the Ninth Circuit’s Decision in

this Case Would Lead to Destruction of Uni-

formity in Labor Law Principles and In-

volve the Federal Courts in the Collective

r ccictnicsidiemnbiasiainieinemaendntesintnennein s

1

CONCLUSION . v ů—ç—i—— 12

(i)

ii

TABLE OF AUTHORITIES

Cases: Page

Arrow Sash & Door Co., 281 N.L.R.B. No. 149,

1986-87 NLRB Dec. (CCH) { 18,447 (1986) 6

Auto Fast Freight, Inc., 272 N.L.R.B. 561 (1984),

aff d, 793 F.2d 1126 (9th Cir. 198 6

Buck Brown Contracting Co., 272 N.L.R.B. 951

c AAA 5, 6

Cascade Painting Co., 277 N. L. R. B. No. 103, 121

L. R. R. M. (BNA) 1008 (1985))))))) 5

Cauthorne Trucking, 256 N.L. R. B. 721 (1981),

aff d in relevant part, 691 F.2d 1023 (D.C. Cir.

17;˙ ̃ 5

Fibreboard Paper Products Corp. v. NLRB, 379

r oer * 4

Ford Motor Co. v. NLRB, 441 U.S. 488 (1979) ...... 8

Garner v. Teamsters Local Union No. 776, 346 U.S.

1 —: . 6, 8

General Tire & Rubber Co., 274 N. L. R. B. 591

(1985), aff’d, 795 F.2d 585 (6th Cir. 1986) 7

Hamady Bros. Food Markets, Inc., 275 N.L.R.B.

/ A 7

J. D. Lunsford Plumbing, Heating & Air Condition-

ing, Inc., 254 N.L.R.B. 1360 (1981), aff’d sub

nom. Sheet Metal Workers Local No. 9 v. NLRB,

684 F.2d 1033 (D.C. Cir. 1982) ꝶ 7 7

Metropolitan Life Ins. Co. v. Massachusetts, 105

D eT 6

Mo-Kan Teamsters Pension Fund v. Botsford

Ready Mix Co., 605 F. Supp. 1441, 1445 (W.D.

ERIE RRC TIES deseo eee me ne Tce 3

Moldovan v. Great Atlantic & Pacific Tea Co., 790

, i ileeiademeneabiinie 3

New Bedford Fisherman's Welfare Fund v. Baltic

Enterprises, Inc., 813 F.2d 503 (1st Cir. 1987).. 3

New York Telephone Co. v. New York State De-

partment of Labor, 440 U.S. 519 (1979977 6

NLRB v. Hearst Publications, 322 U.S. 111

r REN UES 7 A 7

NLRB v. Katz, 369 U.S. 736 (1962 4

iii

TABLE OF AUTHORITIES—Continued

Page

Rescar, Inc., 274 N.L.R.B. 1 (19850) 7

Stone Boat Yard, 264 N.L.R.B. 981, enf’d, 715 F.2d

e a 7

U.A. 198 Health & Welfare, Education & Pension

Funds v. Rester Refrigeration Service, Inc., 790

F.2d 4238 (6th Cir. 1966) ........................................ 3

Statutes:

Employee Retirement Income Security Act, 29

e crncitenserenniinnteeeniieticiamiominieal passim

Z 2, 3

. ie OF IID cincetcereccccccecncecsntacenecennneens 2,3,4,9

§ 4212(a), 29 U.S.C. § 1392 (a „„ 3,4

National Labor Relations Act, 29 U.S.C. §§ 151

61 —c c —— ͤ —— passim

§ 8(a) (5), 29 U.S.C. § 158 (a) (5) 2... 2, 4, 5, 7

— —— — ͥ — * —

- *

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987 N

No. 85-2079

LABORERS HEALTH AND WELFARE TRUST FUND

FOR NORTHERN CALIFORNIA, et al.,

Petitioners,

V.

ADVANCED LIGHTWEIGHT CONCRETE Co., INC.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE

CHAMBER OF COMMERCE OF THE UNITED STATES

IN SUPPORT OF THE RESPONDENT

STATEMENT OF INTEREST

The Chamber of Commerce of the United States

(“Chamber”) respectfully refers the Court to its attached

Motion for Leave to File Brief Amicus Curiae for a

statement of its interest in this proceeding.

INTRODUCTION

This case of statutory construction requires the Court

to examine the scope of federal court jurisdiction under

§§ 502 and 515 of the Employee Retirement Income Secu-

~

2

rity Act (“ERISA”).’ At issue is the meaning of § 515’s

phrase “obligated to make contributions . . under the

terms of a collectively bargained agreement.” Petitioners

claim that this phrase requires employers to continue

making trust fund contributions after the contract re-

quiring these contributions has expired, until bargaining

in good faith to impasse about any change in contribution

level. In other words, Petitioners argue that § 515 im-

poses a duty on employers to comply with 58 (a) (5) of

the National Labor Relations Act (“NLRA”) with respect

to their benefit plan contributions. This construction of

§ 515, read together with ERISA’s jurisdictional grant

in § 502, would empower federal courts to adjudicate un-

fair labor practice claims. Respondent, on the other

hand, claims that § 515 applies only to contribution obli-

gations imposed by existing contracts, and any § 8(a) (5)

obligation to continue contributions must be adjudicated

and enforced by the National Labor Relations Board

(“NLRB”).

In the decision below, the Ninth Circuit agreed with

the Respondent and held that federal courts have no

jurisdiction under §§ 502 and 515 of ERISA to determine

the scope of an employer’s obligation to contribute to a

benefit plan after the collective bargaining agreement has

'§ 502 of ERISA, 29 U.S.C. § 1132, provides in relevant part:

(e) Jurisdiction

(1) ... [The district courts of the United States shall have

exclusive jurisdiction of civil actions under this subchapter

brought by the Secretary or by a participant, beneficiary, or

fidiciary. ...

§ 515 of ERISA, 29 U.S.C. § 1145, provides:

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 extent

not inconsistent with law, make such contributions in accord-

ance with the terms and conditions of such plan or such

agreement.

expired. Emphasizing the exclusivity of NLRB jurisdie-

tion whenever a dispute “involves adjudicating conduct

which is arguably within the compass of § 7 or § 8 of the

NLRA,”* the court found no reason to create an excep-

tion to this exclusive jurisdiction for suits seeking post-

expiration benefit contributions.*

Petitioners now ask this Court to hold that NLRA-

based contribution obligations are independently enforce-

able in federal court under ERISA. The Chamber urges

the Court to reject the Fund’s invitation to rewrite the

law and give federal courts jurisdiction to rule on unfair

2 Laborers Health & Welfare Trust Fund for Northern Cali-

fornia v. Advanced Lightweight Concrete Co., 779 F.2d 497 (9th

Cir. 1985). Three other circuits support the Ninth Circuit’s view.

See New Bedford Fisherman's Welfare Fund v. Baltic Enterprises,

Inc., 813 F.2d 503 (Ist Cir. 1987); Moldovan v. Great Atlantic &

Pacific Tea Co., 790 F.2d 894 (3d Cir. 1986); U.A. 198 Health &

Welfare, Education & Pension Funds v. Rester Refrigeration Serv-

ice, Inc.. 790 F.2d 423 (5th Cir. 1986).

*779 F 2d at 504 (internal quotation marks and citation omitted).

Id. at 505. The court declined to hold that the use of the words

“obligated to make contributions” in § 515 evinced a congressional

intent to incorporate the broad definition of the similar phrase

found in § 4212(a), a definition applicable solely for the purposes of

determining withdrawal liability. Section 4212(a), 29 U.S.C.

§ 1392(a), defines “obligation to contribute,” for purposes of with-

drawal liability only, as: “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 de-

linquent contributions” (emphasis added).

The court also declined to expand the meaning of the phrase

“under the terms of a collectively bargained agreement” to in-

clude the terms of an expired collective bargaining agreement,

finding it unreasonable to believe that Congress would use such an

“ambiguous, metaphysical concept” in §515 to define an extra-

contractual obligation “when it had used a crystal clear definition

elsewhere in the same act,” in § 4212. 779 F.2d at 502, quoting

Mo-Kan Teamsters Pension Fund v. Botsford Ready Miz Co., 605

F. Supp. 1441, 1445 (W.D. Mo. 1985).

4

labor practices. In addition to supporting Advanced

Lightweight Concrete’s arguments on statutory construc-

tion and congressional intent with respect to § 4212,° the

Chamber urges the Court to consider the inherent danger

in creating more than 500 miniature National Labor Re-

lations Boards by empowering federal district court

judges to rule on unfair labor practice claims and estab-

lish the scope of post-contract obligations. Congress did

not intend, nor should this Court countenance, such a

result.

ARGUMENT

I. ALLOWING FEDERAL COURTS TO DETERMINE

THE SCOPE OF POST-CONTRACT BARGAINING

OBLIGATIONS WOULD DESTROY UNIFORMITY

IN LABOR POLICY AND EMBROIL THE JUDI-

CIARY IN THE COLLECTIVE BARGAINING

PROCESS.

A. Determining the Scope of Post-contract Obligations

is a Matter of Federal Labor Law.

Section 515 of ERISA imposes a duty upon employers

“obligated to make contributions to a multiemployer plan

. under the terms of a collectively bargained agree-

ment” to make those contributions. After the collective

bargaining agreement mandating contributions expires,

§ 515 no longer applics. Freed of any contractual obliga-

tion, employers have only such duties as the National

Labor Relations Act imposes on them as parties to an

ongoing bargaining relationship. Section 8 (a) (5) of the

NLRA requires employers to bargain in good faith to

impasse over the terms and conditions of employment

which constitute mandatory subjects of bargaining before

unilaterally implementing any changes in them.“ Since

benefit contributions are a mandatory subject of bargain-

5 See n.4, supra.

® See Fibreboard Paper Products Corp. v. NLRB, 379 U.S. 203,

209-10 (1964); NLRB v. Katz, 369 U.S. 736, 742-43 (1962).

ing,’ unilaterally terminating them prior to impasse con-

stitutes an unfair labor practice, adjudication of which

falls within the exclusive jurisdiction of the National

Labor Relations Board.

There is no conflict or overlap between this exclusive

Board jurisdiction and ERISA’s scheme for the collection

of delinquent benefit contributions. ERISA empowers

federal courts to enforce existing agreements to contrib-

ute, and the NLRA empowers the Board to rule on the

parties’ panoply of obligations after an agreement

expires.

The underlying question to be determined by whichever

tribunal ultimately presides over this case is whether the

employer violated its duty to continue benefit contribu-

tions after the contract expired, without bargaining in

good faith to impasse. Both Petitioners and the United

States as amicus curiae agree that this will entail a de-

termination of whether the company violated § 8(a) (5).*

That determination is unquestionably a matter of inter-

preting and applying federal labor law, a task which the

NLRB was given exclusive jurisdiction to perform.

B. Congress Empowered the Board to be the Exclusive

Forum to Interpret Federal Labor Law, and the

Board has Developed Significant Expertise in Ad-

ministering the NLRA.

Congress and this Court has recognized the importance

of reserving to a single forum the task of interpreting

NLRA-based obligations. Beyond “merely lay{ing] down

a substantive rule of law to be enforced by any tribunal

competent to apply law generally to the parties,” the Act

See Cascade Painting Co., 277 N.L.R.B. No. 103, 121 L. R. R. M.

(BNA) 1008 (1985); Buck Brown Contracting Co., 272 N. L. R. B.

951 (1984); Cauthorne Trucking, 256 N. L. R. B. 721 (1981), enf’d

in relevant part, 691 F.2d 1023 (D.C. Cir. 1982).

8 See Brief of Petitioners at 6, 12-13, 26-27; Petition for Writ of

Certiorari at 11-12, 16; Brief for the United States as Amicus

Curiae in support of the Petition for Certiorari at 6-7.

“eonfide[d] primary interpretation and application of its

rules to a specific and specifically constituted tribunal,”

the Board. Garner v. Teamsters Local Union No. 776,

346 U.S. 485, 490-91 (1953). This delegation reflected

Congress’s decision that centralized administration was

necessary to ensure uniform application of the Act’s

provisions. Id.

Consistent with these Congressional determinations,

this Court has recognized repeatedly the “overriding in-

terest in a uniform nationwide interpretation of the

federal [labor] statute.” New York Telephone Co. v.

New York State Department of Labor, 440 U.S. 519, 528

(1979). The statute’s objectives would be defeated, the

Court has stressed, “if state and federal courts were

free, without limitation, to exercise jurisdiction over

activities that are subject to regulation by the...

Board.” Id., 440 U.S. at 527-28.“

Accordingly, the Board is the primary tribunal charged

with interpreting and enforcing federal labor law. In

this capacity, the Board has ruled on countless unfair

labor practice claims alleging violation of the duty to

bargain, including those alleging termination of benefit

fund contributions without bargaining in good faith to

impasse." Indeed, the Board has developed a significant

body of law on the duty to bargain. Since initially devel-

oping basic principles and tests consistent with the Act’s

language, the Board has been faced with innumerable

® See also Metropolitan Life Ins. Co. v. Massachusetts, 105 S. Ct.

2380, 2394 n.26 (1985) (Congress chose to create] an adminis-

trative agency in charge of creating detailed rules to implement

the Act, rather than having lit] enforced and interpreted by the

state or federal courts’’).

10 See, e.g., Arrow Sash & Door Co., 281 N.L.R.B. No. 149, 1986-

87 NLRB Dec. (CCH) { 18,447 (1986); Buck Brown Contracting

Co., 272 N.L.R.B. 951 (1984) ; Auto Fast Freight, Inc., 272 N. L. R. B.

561 (1984).

7

questions of interpretation, e. g., in determining what con-

duct constitutes a waiver of bargaining rights or a

failure to bargain in good faith,” refining its definition

of impasse and the circumstances in which it occurs,“

and exploring the range of parties’ rights and obligations

once impasse is reached.“ Interpretations in each of

these areas carry great weight in the determination of

whether an employer that terminates benefit contribu-

tions has violated its § 8(a) (5) duties. The Board works

to resolve these questions using the experience it has de-

veloped through day-to-day administration of the stat-

ute, and looking to its body of prior decisions for guid-

ance and continuity. This is what Congress intended

when it gave the Board “the primary responsibility of

marking out the scope of the statutory language and of

11 See, e.g., General Tire & Rubber Co., 274 N.L.R.B. 591 (1985)

(contract clause providing that certain benefits “shall be provided

for 90 days following termination” of the agreement was not “clear

and unmistakable waiver” of the union’s right to bargain over the

discontinuance of those benefits after the 90-day period).

12 See, e.g., Hamady Bros. Food Markets, Inc., 275 N.L. R. B.

1335 (1985) (making regressive proposals in light of changes in

the economy does not constitute failure to bargain in good faith,

absent other indicia) ; Rescar, Inc., 274 N.L.R.B. 1 (1985) (same).

18 See, e.g., J.D. Lunsford Plumbing, Heating & Air Conditioning,

Inc., 254 N.L.R.B. 1360 (1981) (continued bargaining is not always

inconsistent with impasse) .

14 See, e.g., Stone Boat Yard, 264 N.L.R.B. 981, 982 & n.3, enf d.

715 F.2d 441 (9th Cir. 1983) (employer must provide union with

written copy of proposed contract changes prior to unilaterally

implementing them).

15 See NLRB v. Hearst Publications, 322 U.S. 111, 130-31 (1944)

(“Everyday experience in the administration of the statute gives

{the Board] familiarity with the circumstances and backgrounds

of employmer* relationships in various industries, with the abilities

and needs of the workers for self-organization and collective action,

and with the adaptability of collective bargaining for the peaceful

settlement of their disputes with their employers.”).

8

the statutory duty to bargain.” Ford Motor Co. V.

NLRB, 441 U.S. 488, 496 (1979).

C. Reversing the Ninth Circuit’s Decision in this Case

Would Lead to Destruction of Uniformity in Labor

Law Principles and Involve the Federal Courts in

the Collective Bargaining Process.

The Petitioners in this case seek to empower the

numerous federal district courts to implement their own

interpretations of the scope of post-contract obligations.

Such a holding could result in a body of law that varies

markedly from court to court. An element held to be

critical to a finding of impasse by one court could be

ignored by another. Conduct that one court considered to

constitute a waiver of bargaining rights could be held

not to do so by another.

This patch-work of law could lead to anomalous results.

For example, litigation initiated by trustees to recover

post-expiration contributions from several companies that

had participated in multiemployer bargaining could pro-

duce a holding by one court that negotiations had not

reached impasse (thus termination of contributions con-

stituted an unfair labor practice), and by another court

that bargaining had reached impasse (thus termination

of contributions did not constitute an unfair labor prac-

tice). The same conduct between the same parties

simultaneously would be held to violate the NLRA, and

not violate the NLRA." Congress could not have in-

16 Presumably, if the construction proposed by Petitioners were

to be adopted, trustees’ fiduciary duties would require them hence-

forth to keep abreast of the developing state of the law in each

jurisdiction in order to choose the most favorable forum.

17 As this Court stressed in Garner v. Teamsters Union, [a]

multiplicity of tribunals and a diversity of procedures are quite

as apt to produce incompatible or conflicting adjudications as are

different rules of substantive law.” 346 U.S. at 490-91.

9

tended to create such incongruity in the enforcement of

either ERISA or the NLRA.

Reversing the Ninth Circuit’s decision also would

threaten continuous federal court interference in the

collective bargaining process. The Petitioners seek a

construction of ERISA that would extend federal dis-

trict court jurisdiction beyond those actions brought

against employers for violating their contribution obliga-

tion “under the terms of a collectively bargained agree-

ment,” to include actions brought for violation of any

obligation to contribute arising as a result of a duty

under applicable labor-management relations law.” Such

expansive jurisdiction would license federal courts to adju-

dicate allegations that any aspect of an employer’s con-

duct in ceasing or reducing post-contract contributions

violated its duties under the National Labor Relations

Act.

Under this construction, during the course of bargain-

ing after contract expiration, the trustees of a plan could

bring successive lawsuits in federal court alleging that

an employer had violated various aspects of its bargain-

ing obligations. One suit could challenge the employer’s

determination that the union had waived its right to bar-

gain over cessation of plan contributions; a subsequent

suit could allege that the employer was not bargaining in

good faith; another suit could challenge the employer’s

determination that the union was not bargaining in good

faith; yet another suit could challenge the employer’s

determination that impasse had been reached. Thus, un-

der the proposed extension of § 515, every dispute about

the parties’ bargaining obligations with respect to benefit

contributions could be brought before a federal district

court judge.

*

Federal court intrusion into the ongoing bargaining

process would be directly antithetical to the goals and

procedures of the NLRA. Petitioners’ allegation that

10

access to federal court in such cases constitutes an inde-

pendent federal remedy consistent with the NLRA.

cannot withstand scrutiny. The Board was created in

order to develop in one, centralized agency a specialized

expertise in interpreting and applying all aspects of the

NLRA. District court judges, with little or no experience

in the intricacies of bargaining relationships and the Act’s

restrictions, are ill-equipped to step into this arena. In

disputes such as the instant case, it is the Board’s func-

tion to make an underlying determination as to whether,

under federal labor law, any contributions are in fact

due and owing.’® If so, the Board will order payment,

and, in some cases, a return to the bargaining table. In

all likelihood, the Board will have before it questions

about other aspects of the employer’s post-contract obli-

gations as well. If necessary, the Board’s order can be

reviewed by a court. But judicial intrusion before this

stage is wholly inconsistent with the NLRA.

Moreover, such judicial invasion cannot be likened to

federal court adjudication of impasse questions for pur-

poses of determining whether and when an employer’s

contribution obligation permanently ceased in withdrawal

cases.” That one-time determination of the details of

cessation of the contribution obligation does not enmesh

the courts in establishing parties’ continuing NLRA-based

duties. Judicial regulation of the rights and obligations

of parties in ongoing bargaining relationships is substan-

18 See Brief of Petitioners at 26.

19 Despite Petitioners’ characterization of such suits, they are

not simply collection actions, as the fact of liability has not yet

been established.

20 See Brief of Petitioners at 35-37.

21 Indeed, in such cases, the court determines not whether the

company has committed an unfair labor practice, but rather,

whether and when the company has withdrawn from the plan,

incurring withdrawal liability.

11

tively different from judicial determination of with-

drawal liability obligations after a bargaining relation-

ship has terminated permanently. Thus, contrary to the

Petitioners’ allegation that, in view of federal courts’

role in withdrawal liability determinations, “it should be

no great imposition on federal labor policy” to grant

them jurisdiction in suits alleging post-contract delin-

quency,” such an expansion of jurisdiction would be an

imposition of great magnitude.

The damage to federal labor policy that would flow

from allowing district courts to establish bargaining

obligations would far outweigh any potential harm that

could result to multiemployer plans from litigating this

narrow category of cases before the Board. As Petition-

ers indicate, most collection actions are brought to en-

force an existing collective bargaining agreement.” “

By contrast, the ruling Petitioners seek would be limited

in application to litigation against employers whose con-

tractual obligations have expired, but who allegedly have

violated their NLRA-based duties. Confining the delinea-

tion of such duties to the Board would have a small im-

pact on the viability of multiemployer plans, but would

be a critical step in preserving uniformity in national

labor policy.

22 See Petition for Writ of Certiorari at 11.

23 See Brief of Petitioners at 6.

12

CONCLUSION

For the reasons stated in the foregoing brief and in

the Brief of the Respondent, the Chamber urges the

Court to affirm the decision of the Ninth Circuit below.

Respectfully submitted,

STEPHEN A. BOKAT

Counsel of Record

ROBIN S. CONRAD

PAULA J. CONNELLY

NATIONAL CHAMBER LITIGATION

CENTER, INC.

1615 H Street, N.W.

Washington, D.C. 20062

(202) 463-5337

Counsel for the Amicus Curiae

Chamber of Commerce of the

United Scates

July 10, 1987