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

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AN No. 85-2079

, wr® In THE

Supreme Court of the Gnited States

OctToBer Term, 1986

LABORERS, HEALTH AND WELFARE

Trust FUND FOR NORTHERN

CALIFORNIA, ef ai.,

Petitioners,

ADVANCED LIGHTWEIGHT CONCRETE

COMPANY, INC..,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION OF THE ASSOCIATED GENERAL

CONTRACTORS OF AMERICA, INC., FOR LEAVE

TO FILE A BRIEF AMICUS CURIAE IN

SUPPORT OF THE RESPONDENT

AND -

BRIEF AMICUS CURIAE OF THE ASSOCIATED

GENERAL CONTRACTORS OF AMERICA, INC.

A. J. Harrer Il

Counsel of Record

T. J. Wray

David M. Thomas

1301 McKinney Street

Houston, Texas 77010

(713) 651-5151

Attorneys for Associated

General Contractors of

America, Inc.

——-

In THE

Supreme Court of the United States

Octoser Term, 1986

No. 85-2079

LABORERS, HEALTH AND WELFARE

Trust FUND FOR NORTHERN

CALIFORNIA, ef al,

Petitioners,

Vv.

ADVANCED LIGHTWEIGHT CONCRETE

COMPANY, INC.,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

MOTION OF THE ASSOCIATED GENERAL

CONTRACTORS OF AMERICA, INC., FOR LEAVE

TO FILE A BRIEF AMICUS CURIAE IN

SUPPORT OF RESPONDENT

To the Honorable Chief Justice and Associate Justices of the

Supreme Court of the United States:

Pursuant to Rule 36 of the Rules of this Court, the

Associated General Contractors of America, Inc. (“AGC”)

respectfuily moves for leave to file the accompany _— Brief as

amicus curiae urging that the decision below be affirmed.

Respondent has consented to the filing of this Brief; the

Petitioners have not. In support of this Motion AGC shows as

follows:

1. This Motion is necessitated by the failure, upon request,

of the Laborers, Health and Welfare Trust Fund for Northern

California, et al., Petitioners, to give written consent to the filing

of a Brief by AGC as amicus curiae.

2. AGC is a national trade association engaged in the

construction industry. Its approximately 32,000 members in-

clude approximately 8,000 leading general construction con-

tractors. Over 80% of all commercial, industrial, highway, and

bridge construction in the United States is performed by its

members. Through 106 chapters located throughout the

United States, the AGC acts for and on behalf of individual

contractors in matters which include the negotiation and admin-

istration of collective bargaining agreements with various buil-

ding and construction trade unions. AGC, through its chapters.

has also participated in the formation of vanous multiemployer

fringe benefit trust funds under § 302(c) of the Labor Manage-

ment Relations Act (“LMRA”™), 29 U.S.C. § 186(c), and its

members frequently serve as the statutorily required empioyer

trustees on muluemployer fringe benefit trust funds. ,

3. AGC regularly represents general contractor members

in important matters vitally affecting their interests before the

courts, the United States Congress, the Executive Branch and

independent regulatory agencies of the federal government.

This includes rendering assistance to the courts in their deliber-

ations on significant decisions concerning labor-management

relations in the construction industry.

4. The question presented by this case is whether a federal

district court has jurisdiction under §§ 502 and 515 of the

Employee Retirement Income Security Act of 1974

(“ERISA”), 29 U.S.C. §§ 1132 and 1145, over an action by the

trustees of a muluemployer employee benefit plan to collect

contributions from an allegedly delinquent employer where the

employer's alleged obligation to contnbute arses from its duty

under §8(a)(5) of the National Labor Relations Act

(“NLRA”), 29 U.S.C. § 158(a)(5), to refrain from unilater-

ally changing the terms and conditions of employment dunng

collective bargaining following contract expiration. The United

States Circuit Court of Appeals for the Ninth Circuit in

Laborers Health & Welfare Trust v. Advanced Lightweight

Concrete, 779 F.2d 497 (%h Cir. 1985), cert. granted,

US. __, 107 S.Ct. 1283 ( 1987), heid that the decision in this

case was dependent upon an underlying labor law issue within

the exclusive jurisdiction of the National Labor Relations

Board and therefore affirmed the district court’s grant of

summary judgment to Respondent based on lack of subject

matter jurisdiction.

5. AGC addresses in the accompanying Brief the practical

effects on the collective bargaining process and the uncer-

tainties, inconsistencies, delays and expenses which would result

from a reversal of the court below. Based on conversations with

attorneys for Advanced Lightweight Concrete Company it is

the belief of AGC that these questions will not be addressed in

other Briefs submitted on behalf of the Respondent. AGC

respectfully submits that it is in a unique position to present

argument and analysis on behaif of the construction industry in

assisting this Court in its consideration of these issues.

WHEREFORE, AGC respectfully moves that it be granted

leave to file the accompanying Bnef as amicus curiae.

Respectfully submitted.

Lf abpase

Counsel of Record

T. J. Wray

David M. Thomas

FULBRIGHT & JAWORSKI

1301 McKinney Street

Houston, Texas 77010

(713) 651-5151

COUNSEL FOR AMICUS CURIAE

TABLE OF CONTENTS

I. THE COLLECTIVE BARGAINING PRO-

CESS WOULD BE ADVERSELY AF-

FECTED BY LITIGATION OF UNFAIR

LABOR PRACTICES IN ACTIONS UN-

I IN ctincetiisrinsentctcnticussctesernsesenmesseecess

Il. THE NLRB CAN EFFECTIVELY AND

PROMPTLY REMEDY THE ALLEGED

UNLAWFUL CONDUCT ..000 eee.

(il. BENEFIT PLANS SHOULD BE RE-

QUIRED TO RESORT TO THE NLRB

AND GIVE BINDING EFFECT TO ITS

et icetaticnntinscncatinnnictantenennsinenenentennne

Se Ee ctactnctiantennctsnesessenentermocssnsentsnstenneasatonsectenese

Se Ce POs Ie UO GE cecsceccccesccscccsssnssescssecsncnseees

BEST AVAILABLE COPY

TABLE OF AUTHORITIES

Cases

AFTRA v. NLRB, 395 F.2d 622 (D.C. Cir. 1968) ......

American Lubricants Co., 136 N.L.R.B. 946 ( 1962)...

Atlas Tack Corp., 226 N.L.R.B. 222 (1976), enf‘d,

559 F.2d 1201 ( Ist Cir, 1977) ee cccececeseeseeeeeeeees

Avco Corp. v. Aero Lodge 735, 390 U.S. 557 ( 1968) ...

Byrnes v. Debolt Transfer, Inc., 741 F.2d 620 (3d Cir.

FUP aP ccassanisnsassnecensnsesunsennssannenssccemisustenbieititinnephtusanscsene

Cement Masons Trust Fund v. Kirwood-Bly, 520

F.Supp. 942 (N.D. Cal. 1981), aff'd, 692 F.2d 641

TERI ere ee De eo Se

Central States Pension Fund v. Kraftco, Inc., 799

F.2d 1098 ( 6th Cir. 1986) (en banc) 00000...

Cooper v. General Motors Corp., 651 F.2d 249 (Sth

re CIvTe a iicinicininntiiteiiniariniinnndnitniniiieataatinaiiaataiaaiaaaataess

Czyz v. General Pension Bd., Bethlehem Steel Corp.,

578 F. Supp. 126 (W.D. Pa. 1983)... ccc

Del Costello v. Teamsters, 462 U.S. 151 (1983) ..0.......

Exco Contracting Lid., 261 N.L.R.B. 1120 ( 1982) .....

Farmers v. Carpenters, 430 US. 290 (1977) ooo.

Fibreboard Paper Prods. Corp. v. NLRB, 379 US.

REE IE er eee

Garner v. Teamsters, 346 U.S. 485 (1953)...

Golden State Transit Corp. v. City of Los Angeles,

com Gab 106 S.Ct. 1395 (1986) on.

Heck’s, Inc., 191 N.L.R.B. 886 (1971) oo.

Huck Mfg. v. NLRB, 693 F.2d 1176 ( Sth Cir. 1982)...

Humphrey v. Moore, 375 U.S. 335 (1964) ..0.00000.. ee.

IBEW Local 22 v. Nanco Elec. Co., 790 F.2d 59 ( 8th

IE) SOE itsieneputeatincernsctiennbavesitnedensanadenitomnecninbenesinnieemmases

International Harvester Co., 169 N.L.R.B. 787

passim

3, 8

International Union of Electrical, Radio & Machine

Workers, AFL-CIO (Tiidee Products, Inc.) Vv.

NLRB, 426 F.2d 1243 (D.C. Cir. 1970), reh’g

denied, 431 F.2d 1206 (1970), cert. denied, 400

U.S. 950 (1970), on remand, 194 N.L.R.B. 1234

6 FEF ceccnciarticmnaniininmnsnenaneteetmsinetinenmnmsemtascnstemenseanee

International Wire v. IBEW Local 38, 475 F.2d 1078

(6th Cir. 1973), cert. denied, 414 U.S. 867 (1973)..

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

tioning, Inc., 254 N.L.R.B. 1360 (1981), aff'd sub

nom. Sheetmetal Workers v. N.L.R.B., 684 F.2d

J.P. Stevens & Co., 244 N.L.R.B. 406 (1979),

enforced and remanded, 668 F.2d 767 (4th Cir.

1982), vacated and remanded, 458 U.S. 1118

Ar Tir ccebtnesieticenctinbineninicinepacininnataiamnsianenseenaprenesmumeansnes

Jackman v. NLRB, 784 F.2d 759 ( 6th Cir. 1986) .......

Jim McNeff Inc. v. Todd, 461 U.S. 260 ( 1983)............

Kaiser Steel Co. v. Mullins, 455 U.S. 72 (1982)..........

Kaynard v. Palby Lingerie, Inc., 625 F.2d 1047 (2d

Sr ST icicicchai nb sceinsebialbahhleiaadiidesdhdngnindniadeotnbemeniumnonsens

Knickerbocker Plastic Co., 104 N.L.R.B. 514 (1953),

enf'd, 218 F.2d 917 (9th Cir. 1955) oo. eee

Lewis v. NLRB, 357 US. 10 (1958) oo... ceteees

Local 290, Teamsters v. I. E. Schilling Co., 340 F.2d

286 (Sth Cir. 1965), cert. denied, 382 US. 972

STITT iceoiiachihiicincsiniatepnettsinemetecdeidaiasiasiltdhiataslaingatnsigieianninenans

Machinists v. Lubbers, 681 F.2d 598 (9th Cir. 1982),

cert. denied, 459 U.S. 1201 (1983) ............ eee

Marriott In-Flite Servs., Div. of Marriott Corp., 258

N.L.R.B. 755 (1981), enfd, 729 F.2d 1441 (2d

Cir. 1983) cert. denied, 464 U.S. 824 ( 1983)...........

Mary Ann’s Bakery, 267 N.L.R.B. 992 (1983) ............

Meat Cutters v. Fairlawn Meats, 353 U.S. 20 ( 1957)..

Meyers v. Bethlehem Shipbuilding Company, 303 U.S.

Be Oe cinticiatctninciisentaptasiccetncenmetunenemnnesinlenniuntatniiiiannents

5, 6

Morco, Inc. d/b/a Town Plaza Hotel, 258 N.L.R.B.

Se ener ee ee ee

fF Oe ereneninticcmnenscanenieteinepsectientetvenetsiitnenesssmmmenteeneanese

SN bagaaelinatie for eae Dae

NLRB v. Food Store Employees Local 347 (Heck’s

Eg ES ere

NLRB v. Heyman, 541 F.2d 796 ( 9th Cir. 1986).........

NLRB v. ITT Telecommunications, 415 F.2d 768

a ee

NLRB v. Katz, 369 U.S. 736 (1962) .2......c-ceccceeseeseneees

NLRB v. Martins Ferry Hosp. Ass’n., 649 F.2d 445

(6th Cir. 1981), cert. denied, 454 U.S. 1083 ( 1981)

NLRB v. Playskool, Inc., 431 F.2d 518 (7th Cir.

oP i Pceneinnetnicarectunessamuatetanibientestnsiescsentamnineseumeteantevetomeess

NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975).

O’Hare v. General Marine Transp. Corp., 740 F.2d

160 (2d Cir. 1984), cert. denied, 469 U.S. 1212

Er ee a ee ae

Palino v. Casey, 664 F.2d 854 ( ist Cir. 1981) 000000...

Pantex Towing Corp. v. Glidenwell, 763 F.2d 124)

SEI cinncinteninensactintisintdeencnnatiummensentesdnenene:

Pension Benefit Guaranty Corp. v. R. A. Gray & Co.,

AE TE ae

Phelps Dodge Corp. v. NLRB, 313 U.S. 177 (1941)...

Pilot Life Ins. Co. v. Dedeaux, ___. U.S. ____. 107

ESE eae oe ee

Presto Casting Co., 262 N.L.R.B. 346 (1982), enf'd

in part, 708 F.2d 495 (9th Cir. 1983), cert. denied,

RS re

Quinn v. DiGiulian, 739 F.2d 637 ( D.C. Cir. 1984)....

Richard W. Kaase Co., 162 N.L.R.B. 1320 ( 1967).....

San Diego Bidg. & Constr. Trades Council v. Garmon,

359 US. 236 (1959) inuninigiicnaeiancasittepieniieatnianieencenitiieceniens

10, 11

Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180

Smith v. Evening News Ass’n., 371 U.S. 195 (1962)....

Servis Equipment Co., 198 N.L.R.B. 266 (1972) ........

Sheetmetal Workers v. NLRB, 684 F.2d 1033 (D.C.

Southern Newspapers, Inc. d/b/a The Baytown Sun,

255 N.L.R.B. 154 (1981)............ sdectieniameininmenmee

Stone Boat Yard, 276 N.L.R.B. No. 130 (June 14,

Summit Valley Indus. v. Leoal 112 Carpenters, 456

U.S. 717 ( 1982)................ sinasmemiiamngammmednremseen

Switchmen’s Union v. NMB, 343 U.S. 297 (1943).......

Taft Broadcasting Co., 163 N.L.R.B. 475 (1967)

aff'd sub nom., AFTRA v. NLRB, 395 F.2d 622

Teamsters Local 174 v. Lucas Flour Co., 369 US. 95

Teamsters Local 807 v. Brinks, Inc., 744 F.2d 283

ee eee

UAW v. Atlas Tack Corp., 590 F.2d 384 (ist Cir.

eee

UMW v. Allied Corp., 735 F.2d 121 (4th Cir. 1984),

cert. denied, 473 U.S. 905 (1985)...

United Brick & Clay Workers v. Deena Artware, Inc.,

198 F.2d 637 (6th Cir. 1952), cert. denied, 344

United Brick & Clay Workers v. Deena Artware, Inc.,

198 F.2d 645 ( 6th Cir. 1952 ) .000.2.....eeeceeeeeeeeeeeeeeeerees

United Parcel Service, Inc. v. Mitchell, 451 U.S. 56

United Shoe Mach. Corp., 96 N.L.R.B. 1309 (1951) ..

United States v. Utah Constr. & Mining Co., 384 US.

Page

Statutes

Labor Management Relations Act, 29 U.S.C. sac P

CE cciticiaacorntiainniinnneapenmaniinsiniilieaiinaion

BR ED Eee 4

Kk ee Li, 12

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

SE een ee a a passim

Section 8(a)( 5), 29 U.S.C. § 158(a)( 5) 00... 5

Section 8(b)( 4), 29 U.S.C. § 158(b)( 4)... 12

Section 8( f), 29 U.S.C. § 158(f) oc 4

Section 10(b), 29 U.S.C. § 160( Bb). passim

Section 10(j), 29 U.S.C. § 1606j) ce. 10

Section 11(2), 29 U.S.C. § 161(2) oc. 9

Employee Retirement Income Security Act of 1974,

as amended, 29 U.S.C. § 1001 ef seg. ooo. passim

Section 404, 29 U.S.C. § 110400. 15

EE od | re 4.13, 15

Section 502( g), 29 U.S.C. § 1132 g) nnn. 7

Section 502( g){ 2), 29 U.S.C. § 1132 g)( 2)... 8

Section 514, 29 U.S.C. § 1144(d) oo. 4

Section $15, 29 U.S.C. § 1145 000. 4.6

EE ee 4

ae 4

CR ERC ee ene 6

Miscellaneous

NLRB General Counsel's Report Summarizing Oper-

ations in Fiscal 1986, Daily Labor Report ( BNA)

Fe Ee re 10

The Lawyer's Aimanac, 1987 0000.0. = 10

The Lawyer’s Almanac, 1984 20000 id

8 Martindale Hubbell eestthnannesmatitaiiniesinations

SR a cae ee , 8

In THE

Supreme Court of the Anited States

Octoper TERM, 1986

No. 85-2079

LABORERS, HEALTH AND WELFARE

Trust FUND FOR NORTHERN

CALiFoRNIA, ef al.,

Petitioners,

ADVANCED LIGHTWEIGHT CONCRETE

ComPaANy, INC..,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF THE ASSOCIATED

GENERAL CONTRACTORS OF AMERICA, INC.

IN SUPPORT OF THE RESPONDENT

The Associated General Contractors of America, Inc.

(“AGC”) hereby submits this brief in support of the Respond-

ent in No. 85-2079 on a writ of certiorari to review the

judgment of the United States Court of Appeals for the Ninth

Circuit entered in this case on December 26, 1985.

INTEREST OF THE AMICUS CURIAE

A statement describing the AGC and its interest in this case

is set forth in the preceding Motion requesting leave to file this

amicus curiae brief.

SUMMARY OF ARGUMENT

The National Labor Relations Board (“NLRB” or

“Board”) has, with limited exceptions which do not extend to

resolution of core unfair labor practice disputes, exclusive

primary jurisdiction to resolve unfair labor practices. This

exclusive jurisdiction is necessary to ensure uniformity and

consistency in national labor policy. Congress, in passing the

Employee Retirement Income Security Act of 1974, as

amended, 29 U.S.C. § 1001 ef seg. (“ERISA”), did not create a

second forum to resolve unfair labor practice disputes or

otherwise preempt the NLRB’s exclusive jurisdiction under the

National Labor Relations Act, 29 US.C. § 151 ef seg.

(“NLRA” or “Act”).

Exclusive NLRB jurisdiction in such matters is necessary to

promote the collective bargaining process. To permit the

district courts to utilize ERISA to determine in the first instance

whether unfair labor practices have occurred would create

uncertainty as to the rights and duties of the parties to collective

bargaining agreements and would result in delays in the

resolution of disputes because of longer ERISA statutes of

limitation and loss of Board efficiency. Such uncertainty would

result in resistance to inclusion of benefit funds in collective

bargaining agreements thereby frustrating the purposes of

ERISA and the NLRA.

Such a vesuit is unnecessary because the interests of benefit

trust funds can be adequately protected by utilization of the

Board to address situations where allegations of unfair labor

practices are the core issues of alleged failures to contribute to

benefit funds. The NLRB can utilize subpoenas to investigate

the unfair labor practice allegations and can fashion full relief

in the event that it finds a violation. Moreover, it can do so

more rapidly and efficiently than can the district courts without

the risk of inconsistent adjudications.

The decision below therefore should be affirmed. How-

ever, if this Court should reverse, it should require the trusts to

initially resort to the NLRB and abide by its decision. The

Court should also hold that in event of administrative dismissal!

of a charge, trustees satisfy their fiduciary responsibilities under

ERISA by electing to rely upon such dismissal.

ARGUMENT

THE COLLECTIVE BARGAINING PROCESS

WOULD BE ADVERSELY AFFECTED BY

LITIGATION OF UNFAIR LABOR PRACTICES

I~ ACTIONS UNDER ERISA.

At this date there can be little dispute that as a general rule

the NLRB has exclusive primary jurisdiction to determine

unfair labor practices. See Meyers v. Bethlehem Shipbuilding

Company, 303 U.S. 41, 48-49 (1938). Federal as well as state

courts generaily must defer to the NLRB’s jurisdiction and

competence. See Golden State Transit Corp. v. City of Los

Angeles, __. US. ___, 106 S.Ct. 1395, 1398 and n.8 ( 1986);

Kaiser Steel Co. v. Mullins, 455 U.S. 72, 83 (1982); San Diego

Bidg. & Constr. Trades Council v. Garmon, 359 U.S. 236, 246

(1959); Garner v. Teamsters, 346 U.S. 485, 490-91 (1953).'

The exceptions to this doctrine have been limited, and

have not extended to circumstances in which an alleged unfair

labor practice is at the core of the dispute and the dispute does

not involve issues of contract interpretation or application. The

collective bargaining process and the framework in which

collective bargaining negotiations take place are a central

concern of the NLRA, and the NLRB is the agency designated

to provide the necessary safeguards and rules to govern that

process. See Golden State Transit Corp. v. City of Los Angeles,

106 S.Ct. at 1401; Sears. Roebuck & Co. v. Carpenters, 436 US.

180, 191 ( 1978):2 Garner v. Teamsters, 346 U.S. at 490.

The principal rationale for exclusivity is to assure uniform-

ity in the development and administration of national labor

policy. See Sears, Roebuck & Co., 436 US. at 191. Congress in

passing ERISA did not change this, but carefully provided

' Exclusive, primary jurisdiction as used herein refers to this

Court’s use of these terms in cases such as San Diego Bidg. & Consir.

Trades Council v. Garmon, rather than the administrative law use of

the terms “primary jurisdiction.” See, ¢.g., Sears, Roebuck & Co. ¥.

Carpenters, 436 U.S. 180, 199 .29 (1978).

2“(W]hen the same controversy may be presented to the ...

court or the NLRB, it rust be presented to the Board.” /d at 202

( Emphasis added )

ERISA was not to preempt other federal laws. 29 US.C.

§ 1144(d) (1982).

The importance of the collective bargaining process and

the risks inherent to that process from a lack of uniform

regulation led this Court to its decision in Teamsters Local | 74

v. Lucas Flour Co., 369 U.S. 95 (1962), where it held that the

possibilities of conflicting rulings would impede the collective

bargaining process, prolong disputes and tend to lead to

resistance to the inclusion of provisions in contracts favored by

national labor policy. /d. at 103-04. The Court was dealing

with arbitration provisions under a collective bargaining agree-

ment and federal law under Section 301 of the Labor Manage-

ment Relations Act, 29 U.S.C. § 141 ef seg. (“LMRA”).? The

nsks to the collective bargaining process and to the inclusion of

provisions relating to pension, health and welfare or similar

benefits are no less great in this case.

?The Court had created an exception to exclusive NLRB

jurisdiction under § 301. See Smith v. Evening News Ass’n., 371 US.

195 (1962). That exception, however, should not be extended so as

to swallow the principle. The Court has recognized that under § 301.

the NLRB has concurrent junsdiction: however, § 301 jurisdiction is

dependent on the existence of a contract. 29 U.S.C. § 185. See, ez.

IBEW Local 22 v. Nanco Elec. Co, 7) F.2d $9 (8th Cir. 1986):

Teamsters Local 807 v. Brinks, Inc., 744 F.2d 283 (2d Cir. 1984).

UMW v. Allied Corp., 735 F.2d 121 ( 4th Cir. 1984), cert. denied, 473

U.S. 905 (1985); Cooper v. General Motors Corp., 651 F.2d 249 ( Sth

Cir. 1981); UAW v. Atlas Tack Corp., $90 F.2d 384 ( ist Cir. 1979).

Cement Masons Trust Fund v. Kirwood-Bly, $20 F. Supp. 942 (N_D

Cal. 1981), aff'd for the reasons stated in the distnct court’s opinion.

692 F.2d 641 (9h Cir. 1982). See also, Jim McNeff Inc. v. Todd, 46|

U.S. 260 (1983) (§ 301 jurisdiction exists to enforce § 8(f) pre-hure

agreement only prior to its repudiation). ERISA’s terms in §§ $15

and $02 are entirely consistent with this doctnne. Congress clearly

relied on § 301 in developing ERISA’s § 502 scheme. See Pilot Life

Inc. Co. v. Dedeaux, _.. US. —__.. 107 S.Ct 1549 (1987).

Congress was aware of the possible expiration of collective bargaining

agreements and the existence of a hiatus period Where such

situations occurred. Congress carefully provided that no withdrawal

liability would anse where a continuing duty to contribute eusted

under the NLRA. 29 USC. §§ 1383, 1392 (1982). Congress also

was careful to exclude the obligation “two pay delinquent contribu-

uuions” from this provision. /d.

If Petitioners’ position is adopted, the district courts of the

United States will acquire concurrent jurisdiction with the

NLRB, not to interpret contracts but to address and decide

fundamental, core issues arising under Section 8(a)(5) of the

Act.* The core dispute in this case is whether Respondent

violated Section 8(a)(5) of the Act by unilaterally ceasing

contributions to the funds in violation of its § 8(a)(5) duty to

maintain the status quo ante after expiration of the collective

bargaining agreements requiring the contributions. Under the

NLRA, no such duty exists if an impasse in negotiations, waiver

or some other circumstance justifies unilateral action. E£.g.,

NLRB v. Katz, 369 US. 736 (1962).

A determination of whether an impasse has occurred is

highly subjective and a matter particularly sued to NLRB

determination. Huck Mfg. v. NLRB, 693 F.2d 1176, 1186 (Sth

Cir. 1982). In evaluating whether impasse exists, the Board has

considered factors such as the existence of a stnke ot whether

the union has approached its membership concerning a stnke

possibility, Presto Casting Co., 262 N.L.R.B. 346 ( 1982), enf'd

in part, 708 F.2d 495 ( 9th Cir. 1983), cert. denied, 464 U.S. 994

(1983), the statements or understandings of the parties as to

whether impasse exists, J. D. Lunsford Plumbing, Heating & Air

Conditioning, Inc., 254 N.L.R.B. 1360 (1981), aff'd sub nom.

Sheetmetal Workers v. NLRB, 684 F.2d 1033 (D.C. Cir. 1982),

whether bargaining is continuing, Huck Mfg. Co. v. NLRB, 693

F.2d at 1186, the firmness of the parties’ positions, Morco, Inc.

d/b/a Town Plaza Hotel, 258 N.L.R.B. 69 (1981), the bargain.

ing history between the parties, Marriott In-Flite Servs., Div. 0”

Marriott Corp., 258 N.L.R.B. 755 (1981), enfd, 729 F.2d 1441

(2d Cir. 1983). cert. denied, 464 U.S. 824 (1983), whether anu-

union animus was evidenced by the employer, /d, the ume

between bargaining meetings, Southern Newspapers, Inc. d/b/a

4 Indeed, in those cases where this Court has allowed exceptions

to NLRB exclusive jursdiction, the Court has been careful to deciare

that the issues upon which courts can exercise jumsdiction involve

matters of only “peripheral” or “collateral” concern under the NLRB

See, ¢.g.. Farmers v. Carpenters, 430 US. 290, 304 (1977); Motor

Coach Employees v. Lockridge, 403 US. 274, 276 (1971), San Diego

Bidg. & Constr. Trades Council v. Garmon, 359 US. at 243-44.

The Baytown Sun, 255 N.L.R.B. 154 (1981), and various other

circumstances. See, e.g, J. D. Lunsford Plumbing, Heating &

Air Conditioning, Inc., 254 N.L.R.B. at 1360 (“most favored

nations” clause militated in favor of finding impasse). The

Board, with its special expertise and over fifty years of ex-

has recognized that the question of whether an

exists is often elusive and involves the exercise of

judgment in each case. Eg, Taft Broadcasting Co. 163

N.L.R.B. 475, 478 (1967), aff'd sub nom.. AFTRA v. NLRB.

395 F.2d 622 (D.C. Cir. 1968); Servis Equipment Co., 198

N.L.R.B. 266, 269 (1972).

“under the terms of the plan or under the terms of a collectively

bargained agreement.” 29 US.C. § 1145.

By granting jurisdiction to the district courts in cases arising

“under collective bargauming agreements” while recognizing as it did

in 29 US.C. § 1392(a) that withdrawal liability may be imposed

when the duty to contribute as a result of collective bargaining

agreements or a. a result of the operanon of labor-management

relauons law ceases, it is apparent, that in situations such as the one

before this Court, Congress did not intend that the district courts

exercise junsdicnon. See Switchmen’s Union v. NMB. 343 US. 297

Natioml! Labor Relations Board which has its own procedures,

specialized knowledge and experience. Meat Cutters v. Fair-

lawn Meats, 353 U.S. 20 (1957); Garner v. Teamsters, 346 US.

at 490

Tiere can be little doubt that the NLRB is better able to

resolve disputes arising under the labor policy of the United

States han are the various district courts. To submit cases such

as theone at hand to the district courts for resolution would

requir: them to exercise authority in an area where they lack

the ewerience of the NLRB and would create potential for

conflic in the administration of national labor policy.®

Firther, should the district courts be permitted to exercise

jurisdction, the Congressional desire for expeditious resolution

of thee unfair labor practice issues will be at severe risk.

Unde: the Act, charges of an unfair labor practice must be

preseted within six months of their occurrence. 29 U.S.C.

§ 160). Collection suits under § 502(g) of ERISA may be

brougit at any time within the applicable limitations penods

govening contract or collection actions in the various states.

See, «g., Central States Pension Fund v. Kraftco, Inc., 799 F.2d

1098. 1107 (6th Cir. 1986) (en banc); Byrnes v. DeBolt

Tranfer, Inc., 741 F.2d 620 (3d Cir. 1984). In most states the

6 This Court has noted that in the field of labor law,

““ongress did not merely lay down a substantive rule of law

» be enforced by any tribunal competent to apply law

enerally to the parties. It went on to provide primary

wterpretation and application of its rules to a specifically

onstituted tribunal and prescribed a particular procedure

fr investigation, complaint and notice, and hearng and

ecision including judicial relief pending a final adminuis-

tative order. Congress evidently considered that centralized

dministration of specially designed procedures was neces-

ary to obtain uniform application of its substantive rules

ad to avoid those diversities likely to resuit from a vanety

€ local procedures and attitudes toward labor con-

‘oversies.”

Garnr v. Teamsters, 346 U.S. at 490.

though specifically addressing state court activity, the court

earlic noted, “The power and duty of primary decision lies with the

Boar, not with us.” Garner v. Teamsters, 346 U.S. at 489. It is

appeent that this court recognized, as did Congress, the necessity, in

the iterest of uniformity, that the NLRB exercise initial jurisdiction in

unfx labor practice matters. See also San Diego Bidg. & Constr.

Traes Council v. Garmon, 359 U.S. at 244-45.

limitations periods for violations of a contract are three or more

years.” In short, if Petitioners’ position is sustained, a dispute

which is solely based upon an asserted unfair labor practice

could become stale ( and indeed time barred under the NLRA)

before it was ever presented for adjudication under ERISA.

This Court in a similar context has recognized and empha-

sized the importance of rapid resolution of and uniformity in

the deciding of issues involving the collective bargaining pro-

cess. Del Costello v. Teamsters, 462 U.S. 151 (1983). Where

the collective bargaining process is at issue, not only is unifor-

mity essential, but so is the rapid resolution of disputes. “‘[I]t is

of the utmost importance that the law reflect the realities of

industrial life and the nature of the collective bargaining

process.” /d. at 172 (Quoting Justice Goldberg, concurring, in

Humphrey v. Moore, 375 U.S. 335, 358 (1964) ).8

Uncertainty and the potential for long-delayed challenges

to positions taken in collective bargaining would have a dele-

terious impact on that process. De/ Costello v. Teamsters, 462

U.S. at 169 (longer statutes of limitations have a major impact

on the collective bargaining process where a decision made

could be called into question “as much as [three] years later”

(quoting United Parcel Service, Inc. v. Mitchell, 451 U.S. 56. 64

(1981))). The longer time limitations for filing complaints

would tend to prolong disputes arising in bargaining and the

risks associated therewith.? Moreover, the risks of inconsistent.

widely divergent rulings by the various district courts would not

only defeat one of the central concerns of national labor policy

under the Act,'® but would also impede and detract from one of

” See, e.g., 8 Martindale Hubbell Law Directory pt. I ( 119th ed.

& Supp. 1987).

® This Court could. of course, adopt § 10(b) as the period of

limitations for suits under ERISA. This would alleviate one of the

concerns expressed herein as to the impact on the coilective bargain-

ing process of a reversal of the decision below. Such a course of

action would, however, raise other possible concerns under ERISA.

See, e.g., Central States Pension Fund v. Kraftco, Inc.. 799 F.2d 1098

(6th Cir. 1986) (en banc).

*In an ERISA collection action under § 502(g)(2), time is

money.

"© See, e.g., Golden State Transit Co. v. City of Los Angeles, 106

S.Ct. at 1401; Garner v. Teamsters, 346 US. at 490-91.

the very purposes of ERISA—to provide pension and other

funds for the benefit of employees. See Pension Benefit

Guaranty Corp. v. R. A. Gray & Co., 467 U.S. 717 (1984). This

result would surely follow from a decision which would allow

an adverse impact on the collective bargaining process, for it is

through the collective bargaining process that employer partici-

pation in jointly administered trust funds is established and

maintained. If employers are confronted, as they will be if the

decision below is reversed, with the potential risks and delays,

the multiple forums and possible inconsistency of results, then

the natural tendency of employers will be to avoid such risks

and delays by refusing to include ERISA-covered benefits in

collective bargaining agreements. Extending jurisdiction to the

courts to resolve unfair labor practices in ERISA collection

actions would thus disserve the purposes of both the NLRA

and ERISA.

THE NLRB CAN EFFECTIVELY AND PROMPTLY

REMEDY THE ALLEGED UNLAWFUL CONDUCT

The NLRB has had over fifty years of experience in

investigating unfair labor practice charges. None of the parties

have suggested or should suggest that the NLRB will not

adequately fulfill its obligations under the Act to promptly and

fully investigate alleged violations involving delinquent pension

contributions. The Act clearly gives it the authority and tools to

do so. The Board has utilized its subpoena power, and the

courts have enforced such subpoenas, under § | 1( 2) of the Act,

which contains an express grant of authority to courts to enforce

subpoenas issued in connection “with any matter under in-

vestigation. . .” See, e.g., Lewis v. NLRB, 357 U.S. 10 | 1958):

NLRB v. Martins Ferry Hosp. Ass’n., 649 F.2d 445 (6th Cir.

1981), cert. denied, 454 U.S. 1083 (1981); NLRB v. Playskool,

Inc.. 431 F.2d 518 (7th Cir. 1970); NLRB v. ITT Tele-

communications, 415 F.2d 768 (6th Cir. 1969).

If, after investigation, the NLRB determines to issue a

complaint, it is clear that the NLRB has available to it

injunctive authority pending resolution of the underlying dis-

pute pursuant to Section 10(j) of the Act. See, e.g. Kaynard v.

Palby Lingerie, Inc., 625 F.2d 1047, 1051, (2d Cir. 1980)

(when considering a request for interim relief under § 10(j), a

district court must evaluate two principal issues—whether there

is reasonable cause to believe an unfair labor practice was

committed and whether the requested relief is “just and

proper”). This tool may be used by the NLRB to require

continuation of payments to funds such as Petitioners pending

the outcome of an unfair labor practice complaint proceeding.

Even if § 10(j) relief is not sought by the NLRB, the

Board is a far more expeditious forum in which to resolve unfair

labor practice charges than are the district courts. For example,

in fiscal year 1986, 9,312 cases, or 91.7% of meritorious unfair

labor practice cases, were resolved through voluntary settle-

ment. NLRB General Counsel’s Report Summarizing Oper-

ations in Fiscal 1986, Daily Labor Report (BNA) No. 38, at D-

| (February 27, 1987).'' The district courts, on the other hand.

are overburdened. As of June 30, 1985, 254,114 civil cases

were pending in the federal district courts. The Lawyer's

Almanac, 1987, at 799 (1987). On June 30, 1982, 200.885 civil

cases were pending of which 13,979 were over three years old.

The Lawyer’s Almanac, 1984. at 645 (1984). The number of

cases pending before the district courts renders them an ex-

tremely time consuming forum and less suitable for resolution

of unfair labor practice disputes than is the NLRB. '2

If the NLRB after a hearing determines that a violation

has occurred, it is well equipped by statute and practice to

provide a complete and adequate remedy.'3 In addition to

cease and desist authority, the Board possesses broad make-

whole power. Exercising that power, it has required payment,

'' This is not to suggest that suits under ERISA are not also

compromised and settled. They are. Settlements under the auspices

of the NLRB occur more promptly and with less expense to the funds,

however.

‘2 When the length of the statutes of limitations is added to the

time it may take to reach trial, the contrast between the administrative

and judicial forums is even more acute.

'3 See, e.g. NLRB v. Food Store Employees Local 347 (Heck’s

Inc.), 417 U.S. 1 (1974); Fibreboard Paper Prods. Corp. v. NLRB,

379 U.S. 203, 215 (1964).

including liquidated damages or interest, to benefit funds. See,

e.g., Mary Ann’s Bakery, 267 N.L.R.B. 992 (1983) (awarding

payments plus interest); Stone Boat Yard, 276 N.L.R.B. No.

130 (June 14, 1985) (awarding payments and liquidated

damages); Exco Contracting Lid., 261 N.L.R.B. 1120 (1982)

(awarding payments and liquidated damages). It has also

awarded health and medical benefits, Knickerbocker Plastic

Co., 104 N.L.R.B. 514 (1953), enf'd, 218 F.2d 917 (9th Cir.

1955), bonuses, United Shoe Mach. Corp., 96 N.L.R.B. 1309

(1951), shares in profit sharing programs, J/nternational

Harvester Co., 169 N.L.R.B. 787 (1968), and vacation benefits,

Richard W. Kaase Co., 162 N.L.R.B. 1320 (1967).

In addressing unilateral changes in the terms and condi-

tions of employment, the Board will, if a violation is found,

generally order restoration of the status quo ante and require

that employees be made whole for any benefits which have

unilaterally been discontinued. See, e.g. Atlas Tack Corp., 226

N.L.R.B. 222 (1976), enf’d, 559 F.2d 1201 (Ist Cir. 1977);

American Lubricants Co., 136 N.L.R.B. 946 (1962). In

contrast to a court in an ERISA action, the Board can remedy in

a single proceeding all manifestations of an unfair labor

practice, not solely the failure to make benefit fund contnbu-

tions. Additionally, the Board has in certain circumstances

ordered employers to reimburse the charging party and the

NLRB for litigation costs. /nternational Union of Electrical,

Radio & Machine Workers, AFL-CIO ( Tiidee Products, Inc.) v.

NLRB, 426 F.2d 1243 (D.C. Cir. 1970). reh'g denied, 431 F.2d

1206 ( 1970), cert. denied, 400 U.S. 950 (1970), on remand, 194

N.L.R.B. 1234 (1972). See also J.P. Stevens & Co., 244

N.L.R.B. 406 (1979), enforced and remanded. 668 F.2d 767

(4th Cir. 1982), vacated and remanded, 458 U.S. 1118 (1982)

(in light of Summit Valley Indus. v. Local 112 Carpenters, 456

U.S. 717 (1982) (applying the “American Rule” in an action

under § 303 of LMRA, but recognizing exceptions “where

necessary to further the interests of justice”) )."

14In NLRB v. Food Store Employees Local 347 (Heck’s Inc.),

417 US. at 8-9, this Court approved a distinction between “frivolous”

and “debatable” defenses addressed by the Board in Tiidee Products,

Inc., 194 N.L.R.B. 1234 (1972), and Heck’s, Inc., 191 N.L.R.B. 886

(1971).

In sum, it is clear that the NLRB is equipped to, can, and

has addressed the issues raised by Petitioners in this litigation

and can provide and has provided effective remedial relief for

violations such as those alleged in this case. '5

IT.

BENEFIT PLANS SHOULD BE REQUIRED TO

RESORT TO THE NLRB AND GIVE BINDING

EFFECT TO ITS DECISIONS.

Where the NLRB has issued a complaint and, after

hearing, either dismisses the complaint, finding no violation, or

finds a violation, the matter should end. Trustees and their

funds should not have any fiduciary obligations or right to

relitigate the issues in an ERISA suit. If not precluded,

relitigation would risk inconsistent adjudications and drain the

resources of the funds. ERISA's fiduciary obligations should

mot require, and conservation of judicial resources should

preclude, such risks. See e.g., United States v. Utah Constr. &

Mining Co., 384 U.S. 394, 422 (1966); NLRB v. Heyman, 541

F.2d 796 (9th Cir. 1986); International Wire v. IBEW Local

38, 475 F.2d 1079 (6th Cir. 1973), cert. denied, 414 U.S. 867

(1973) (involving § 303 of Act). The risks absent application

of res judicata or collateral estoppel or other limitation on

relitigation are clearly present. Compare United Brick & Clay

Workers v. Deena Artware, Inc., 198 F.2d 637 (6th Cir. 1952),

cert. denied, 344 U.S. 897 (1953) (hereinafter Deena I], with

United Brick & Clay Workers v. Deena Artware, Inc., 198 F.2d

645 (6th Cir 1952) [hereinafter Deena //|. In Deena I, 198

F.2d at 637, the court of appeals upheld a district court

judgment in a suit brought against a union under § 303 of the

LMRA for secondary activity in violation of Section 8(b)( 4) of

'S NLRB’s remedial authority is limited two the extent that its

remedies cannot be punitive in nature. Phelps Dodge Corp. v. NLRB.

313 US. 177 (1941). Insofar as it might be argued that this

limitation would preclude the NLRB from giving the same scope of

relief as is available under ERISA, this Court has long held that

differences in relief available are not relevant to the jumsdictional issue

vel mon. See, Avco Corp v. Aero Lodge 735, 390 US. 557. 561

( 1968); Garner v. Teamsters, 346 US. at 489-99.

the NLRA. In Deena II, 198 F.2d at 645, which involved the

same events, the court affirmed an NLRB trial examiner’s

finding that the union had not engaged in secondary activity.

The court stated:

Under our existing system of courts, juries, administrative

agencies and appellate review, such findings, even though

inconsistent, are not invalid and one does not destroy the

other. The two proceedings even though arising out of the

same labor dispute were heard by separate fact finding

agencies. The witnesses in the two proceedings were not

the same, the cross-examinations of some witnesses who

testified in both were not by the same attorney. Neces-

sarily, the evidence produced in the different proceedings

by such testimony was not identical. Each fact finding

agency was entitled tc make its own decision upon the

evidence before it.

United Brick & Clay Workers v. Deena Artware, Inc., \98 F.2d

at 642. See also, Pantex Towing Corp. v. Glidenwell, 763 F.2d

1241 (llth Cir. 1985); O'Hare v. General Marine Transp.

Corp., 740 F.2d 160 (2d Cir. 1984), cert. denied, 469 U.S. 1212

(1985) (addressing the separate status of trust funds from

unions and finding no privity between them. thus obviating any

res judicata effect to Board proceedings); Quinn v. DiGiulian,

739 F.2d 637 (D.C. Cir. 1984)."¢

While inconsistencies may be unavoidable in certain cir-

cumstances as a result of Congress’ decision to confer jurisdic-

tion on both the district courts and the NLRB in certain

matters, they are not conducive to a unified and coherent

national labor policy. Inconsistencies should not be allowed to

multiply as a result of the unnecessary exercise of jumsdiction by

the district courts over only discrete parts of core unfair labor

practices. This is especially so where. as here, Congress clearly

intended to confer jurisdiction in the distmc: courts under § 502

of ERISA only where an employer’s conduct violated the terms

6 The O’Hare case highlights the impact and uncertainty created

in the collective bargaining process by longer limitations penods

under ERISA. The Court had previously heid an NLRB complaint

case time barred under § 10(b) of the Act and allowed suit under

ERISA on the same operative facts.

of an existing collective bargaining agreement ( or of a pension

plan incorporated or adopted therein).

Requiring exclusive resort by the funds to the NLRB in

cases such as this eliminates the risks of inconsistent adjudica-

tions and any probiems of the applicability of res judicata.

Giving res judicata effect to a final decision of the NLRB, after

a full opportunity for hearing, brings the matter to an end

(subject to 4i Is) wid aan Rdnndt :

not only the assets of trust funds such as Petitioners but also

conserving judicial resources

The remaining issue its the General Counsel’s almost

absolute, unreviewable discretion under the Act. subject to

certain possible limited exceptions, to dismiss an unfair labor

practice charge after investigation. See, NLRB v. Sears,

Roebuck & Co., 421 US. 132. 138-39 (1975): Jackman v.

NLRB, 784 F.2d 759 ( 6th Cir. 1986); Machinists v. Lubbers,

68! F.2d 598 (%h Cir. 1982), cert. denied, 459 US. 1201

(1983). There appears to be no basis for the application of res

the merits. See VLAB v. Denver Bidg. Trades Council. 34\ US.

675 (1951): Local 290, Teamsters v. LE. Schilling Co., 340

F.2d 286 (Sth Cir. 1965), cert. denied, 382 U.S. 972 ( 1976).

If this Court determines to reverse the decision below and

hold court jurisdiction under ERISA exists to consider and

decide core unfair labor practice issues under the Act in the

absence of a collective bargaining agreement, the Court should

also require prior resort to the NLRB and declare that trustees

may rely on an administrative determination dismissing a

charge without fear that failure to file suit will constitute breach

of their fiduciary duties.‘? No reason exists in law or in fact,

given NLRB expertise, to argue that reliance on an adminis-

trative determination of no violation is somehow insufficient to

satisfy the fiduciary obligations of trustees. The Court should

also consider declaring that the principles and rationale of De/

Costello v. Teamsters, 462 U.S. at 151, are equally applicable to

cases arising under ERISA and that § 10( b) of the Act is to be

applied in actions arising under § 502 of ERISA.

'T ERISA requires plan fiduciaries wo discharge their duties as

would a prudent man acting in like capacity. § 404 of ERISA. Palino

v. Casey. 664 F.2d 854 ( ist Cir. 1981). When, as here. the obligation

to contribute to benefit funds rests solely on an underlying unfair

labor practice, referral of the matter to the NLRB via an unfair labor

practice charge is prudent conduct because the Board ts the most

efficient and least expensive vehicle for the resolution of such disputes.

Should the General Counsel, after investigation. dismiss the charge it

would be prudent to rely on his determination. See, Czyz v. General

Pension Bd. Bethlehem Sieel Corp.. 578 F Supp. 126 (WD Pa

1983), where the court found that trustees’ referral to an independent

expert on issue of “good health” in order to conserve plan assets was a

sound basis for fiduciary action.

For this Court to declare that a decision by the trustees to rely on

a decision of tne General Counsel dismissing the unfair |abor practices

charge upon which the alleged duty to contribute rests would preserve

the judgment of the trustees, eliminate a risk of challenge to their

judgment, and enhance the probability that fund assets will be

conserved.

Dated: July 10. 1987

T. J. Wray

David M. Thomas

Counsei for the Associated

General Contractors of

Amenica. Inc.

CERTIFICATE OF SERVICE

I, A.J. Harper Il, Counsel of Record for Associated

General Contractors of America, Inc., do hereby certify that

pursuant to Rules 28.3 and 28.5(b) of the Rules of the

Supreme Court of the United States, true and correct copies of

the foregoing Motion for Leave to File a Brief Amicus Curiae in

Support of the Respondent and Brief of the Associated Genera!

Contractors of America, Inc., as Amicus Curiae were served

upon the following individuals on this the 10th day of July,

1987, by placing same in the United States mail, certified,

Blythe Mickelson. Esq.

Van Bourg, Weinberg, Roger & Rosenfeld

875 Battery Street

San Francisco, California 94111

COUNSEL OF RECORD FOR PETITIONERS

LABORERS HEALTH AND WELFARE TRUST

FUND FOR NORTHERN CALIFORNIA, ET AL.

Mark S. Ross, Esq.

Schachter, Kristoff, Ross, Sprague & Curiale

101 California Street. Suite 2900

San Francisco, Califorma 94111

COUNSEL OF RECORD FOR RESPONDENT

ADVANCED LIGHTWEIGHT CONCRETE CO..

INC.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.