# Amicus Curiae Brief — Laborers Health & Welfare Trust Fund v. Advanced Lightweight Concrete Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0210%3A17 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1988 - **Citation:** 484 U.S. 539 ## Text AN No. 85-2079 ar , wr® In THE Supreme Court of the Gnited States OctToBer Term, 1986 LABORERS, HEALTH AND WELFARE Trust FUND FOR NORTHERN CALIFORNIA, ef ai., Petitioners, v. 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 i 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 10 passim 3, 8 11 5 8 4 1 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 ae 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 iH 12 5, 6 14 14 IV 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 14 10, 11 12 13 il 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 J) 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 ee 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. OS i os 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, v. 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. 2 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. 3 ARGUMENT L. 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 ) 4 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. 5 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. 6 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 : : 7 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. 8 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. 9 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- 10 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). 11 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). 1 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. 13 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. 14 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 judicata t© an administrative investigation without a hearing on 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). 15 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. 17 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0210%3A17. Public record. Not legal advice.