# Petition for Writ of Certiorari — General Marine Transport Corp. v. O'Hare > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1822%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1985 - **Citation:** 469 U.S. 1212 ## Text Y FILED | 84-995.) DEG 6 1984 oO. ALEXANDER L. STEVAS : | IN THE Supreme Court of the United States OCTOBER TERM, 1984 > GENERAL MARINE TRANSPORT CORP, Petitioner, —_—V.— JOSEPH O’HARE, ALBERT M. CORNETTE, PETER GALE, BRUCE A. MCALLISTER, ROBERT W. SANDERS, THOMAS E. MORAN, as Trustees of the NEW YORK MARINE TOWING & TRANSPORTATION INDUSTRY PENSION FUND & INSURANCE FUND, Respondents. PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT JARED STAMELL 540 Madison Avenue New York, New York 10022 (212) 752-9222 Attorney for Petitioner — Ss , QUESTIONS PRESENTED The court beiow was asked to decide petitioner’s liability for pension contributions under a collective bargaining agreement which had already been the subject of extensive litigation before the National Labor Relations Board and the court of appeals. The dispute arose in 1976 when petitioner, a vessel owner, and a union disagreed about whether the union repre- sented petitioner’s employees. Petitioner refused to abide by a multiemployer collective bargaining agreement which would have covered all its employees. The NLRB dismissed the union’s unfair labor practice charges, which alleged that peti- tioner was bound by the agreement, and decided that peti- tioner’s employees, except those on two vessels, should hold an election to choose a labor union. In the election, the employees selected a new union. Afterward, the NLRB decided that petitioner’s continued refusal to abide by the agreement was an unfair labor practice with respect to the employees on the two vessels. However, in General Marine Transport Corp. v. NLRB, 619 F.2d 180 (1980), the court of appeals held that the Board was incorrect since the six month statute of limitations applicable to unfair labor practices had expired with respect to petitioner’s refusa! to abide by the agreement. Petitioner never did abide by the agreement. This subsequent action by pension fund trustees presents the following questions: 1. Is this a case within the exclusive jurisdiction of the NLRB to remedy unfair labor practices and resolve representa- tion disputes, and not a suit for “violation of contracts between an employer and a labor organization” within the district court’s jurisdiction under LMRA § 301, 29 U.S.C. § 185? 2. Does the six month statute of limitations in 29 U.S.C. § 160(b) applicable to unfair labor practices, apply in a § 301 action that litigates the duty to honor a collective bargaining agreement, or is the court of appeals correct that the six month limitations rule announced in De/ Costello v. Teamsters, 462 ii U.S. 151 (1983), applies only to hybrid § 301/fair representa- tion cases? 3. Can an employer be liable under a collective bargaining agreement he has no duty to abide by under the National Labor Relations Act? 4. Are the due process and ex post facto clauses of the Constitution violated by imposing civil penalties under a stat- ute enacted in 1980 for an employer’s repudiation of a collec- tive bargaining agreement in 1976? 5. If an employer does not commit an unfair labor practice by refusing to abide by a collective bargaining agreement, did Congress intend that the employer could nonetheless violate § 306 of the 1980 Multiemployer Pension Plan Amendments, 94 Stat. 1295, by refusing to make pension contributions under the agreement? 6. If employees elect a new labor union and become ineligi- ble to participate further in pension and insurance trusts of the former union, does 29 U.S.C. § 186(c)(S) require that the contributions held in the former union’s trust funds be trans- ferred to a new trust for the benefit of those employees? iil TABLE OF CONTENTS re ee le ka ee cha ecaeebkaeeade Nee eee awee és EEE OY gw cca s ccc ccecncesccens SSS ee Constitutional and Statutory Provisions Involved...... Ee Reasons for Granting The Writ ..................... I. Il. Ill. IV. The Circuits Conflict About District Court Juris- diction To Decide Cases In Which The Existence Of A Collective Bargaining Agreement Is In Dis- a a 6 a date we e040 eon eee kes The Duty To Abide By A Collective Bargaining Agreement Should Be Time-Barred In Section 301 Actions If It Is Time-Barred In Unfair Labor Practice Proceedings; The Court Of Appeals Ap- plied Del Costello v. Teamsters Too Narrowly. .. . An Employer Should Not Be Liable Under A Collective Bargaining Agreement He Has No Duty To Honor Under The National Labor Relations Act; The Decision Below Conflicts With Decisions Of This Court And Other Circuits ............. Congress Did Not Intend An Employer To Violate A 1980 Statute By Repudiating A Contract In 1976 Or To Penalize Lawful Collective Bargain- ing; The Court Should Clarify MPPA § 306 To Eliminate Conflict With The NLRA............ 12 12 14 16 18 iV PAGE V. Substantial Monies Contributed By the Employer For The Benefit Of Employees Will Be Lost To Them Unless The Writ Is Granted; No Group Should Be Denied A Remedy Under 29 U.S.C. § 186(c)(S) Because They Are Few In Number ... 20 NS a Og ere Do be te en ee aero 22 APPENDIX Opinion of the Court of Appeals dated July 20, Opinion of the District Court dated March 31, 1983 A42 Opinion of the Districi Court dated September 19, PENNE SAw4 kA 4a 64 6 ROD aS ORS ONO sReRkEeneNsas A60 Opinion of the District Court dated February 3, PE eT ee rete eT errr er rye A63 Order denying Petition for Rehearing............ A7l Judgment of the District Court ................. A72 Supplemental Judgment of the District Court ..... A74 Opinion of the Court of Appeals dated March 26, SE Kee Cac kdnb cacksesaie keene eukteeeebuus A76 Opinion of the National Labor Relations Board Gated September 29, 1978 ... occ cn cccccnncccs A99 Opinion of the National Labor Relations Board Gateg December 10, 1976... 2... ccc ccncccnccen A122 TABLE OF AUTHORITIES Cases: Alvares v. Erickson, 514 F.2d 158 (9th Cir. 1975) cert. i Gee Shs Ee CTE Kio kx onbh betas enaness American Commercial Barge Lines Co. v. SIU, 730 F.2d Se EE Wak Nowe Ruud nkecennnneseuenseant B & B Industries, Inc., 162 N.L.R.B. 833 (1967) ...... Carpenters v. Stevens, 743 F.2d 1271 (9th Cir. 1984) ... Carpenters Local No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 490 (Sth Cir. 1982), cert. denied, 104 S. Ct. Ene rr rir rr er ere ee ee Charles Bonanno Linen Services, Inc. v. NLRB, 454 pis Se Ng wc 6645 CSR ROR ee ee ee Del Costello v. Teamsters, 462 U.S. 151 (1983)........ Electrical Workers v. lowa Electric Light & Power Co., — ge £ ite fe B, . Pereeeeerrere rere reece Garment Workers v. NLRB, 366 U.S. 731 (1960)...... General Marine Transport Corp. v. NLRB, 619 F.2d 180 Ca Ge: We 0k 6 kc Gcinie ccc rasta 9, 14, Kaiser Steel Corp. v. Mullens, 455 U.S. 72 (1982) . .13, 18, Local 50 Health Benefit Fund v. Local 3 Welfare Fund, mig pb fe fo 9 Rewrrer ey tr rr rere Local 7-210 v. Union Tank Car Co., 475 F.2d 194 (7th Cir. 1973), cert. denied, 414 U.S. 875 (1973) ........ Midwest Piping & Supply Co., 63 N.L.R.B. 1060 (1945) NLRB vy. Seibler Heating & Air Conditioning, Inc. 563 F.2d 366 (8th Cir. 1977), cert. denied, 437 U.S. 911 CUTE & 6. canchac deccessGuaenecuubanauseaee danke PAGE 15 vi PAGE Pension Benefit Guaranty Corp. v. R.A. Gray & Co., HOGS. Ct. 27OD (GBM) ow. cc ccccccccncncccccee 19 Teamsters v. California Consolidators, Inc. , 693 F.2d 81 (9th Cir. 1982), cert. denied, 53 U.S.L.W. 3263 (Oct. Wy TOUS 66000050 enusceueneorscscinecdsa bes 12 Statutes: Multiemployer Pension Plan Amendments Act of 1980: Title I, § 108(a)(1), 94 Stat. 1267.................. 19 Title III, § 306, 94 Stat. 1295, 29 U.S.C. §§ 1132(g), FON 645 66 Sb04cecadhissdicnennsccescaawcuices 18, 19 Labor Management Relations Act: § 301, 29 U.S.C. § 185 2... passim § 302, 29 U.S.C. § 186 2... 8, 20, 21 National Labor Relations Act: § 8, 29 U.S.C. § 158 20 eee. passim § 9, 29 U.S.C. § 159. ccc e eee. 12 § 10, 29 U.S.C. § 160... eee. 11, 12, 14, 15 28 U.S.C. § 1254(1) 0c cece cece. 2 28 U.S.C. § 1331 ooo ce eee eee. 8 28 U.S.C. § 1337 oo oooccccc cece ee. 8 IN THE Supreme Court of the United States OCTOBER TERM, 1984 > GENERAL MARINE TRANSPORT CORP, Petitioner, —_V— JOSEPH O’HARE, ALBERT M. CORNETTE, PETER GALE, BRUCE A. MCALLISTER, ROBERT W. SANDERS, THOMAS E. MORAN, as Trustees of the NEW YORK MARINE TOWING & TRANSPORTATION INDUSTRY PENSION FUND & INSURANCE FUND, Respondents. > PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT General Marine Transport Corp. petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the Second Circuit entered July 20, 1984 and an order denying a petition for rehearing of said judgment con- taining a suggestion for rehearing en banc entered September 7, 1984. The court of appeals affirmed a district court judg- ment entered May 19, 1983, an order entered September 19, 1983 denying petitioner’s motion to amend the judgment, as well as a supplemental judgment awarding attorneys’ fees entered February 21, 1984 by the United States District Court for the Southern District of New York in favor of respondents. CITATION TO OPINION BELOW The opinion of the court of appeals is reported at 740 F.2d - 160 and is set out in the Appendix (A1). The order of the court of appeals denying the petition for rehearing is unreported and § set out in the Appendix (A71). The opinions of the district court are reported at 534 F. Supp. 120 (A26) (granting respond- ents partial summary judgment), 564 F.Supp. 1064 (A42) (awarding damages and dismissing petitioner’s counterclaim) and 578 F. Supp. 72 (A60) (denying petitioner’s motion to amend the judgment). Each opinion is set out in the Appendix. The opinion of the district court awarding attorney’s fees is unreported and is set out in the Appendix (A63). Also set out in the Appendix is the opinion of the Court of Appeals in the related unfair labor practice case, reported at 619 F.2d 180 (A76). The opinion of the National Labor Relations Board in that case is reported at 238 N.L.R.B. 1372, and is set out in the Appendix (A99). The related opinion of the National Labor Relations Board in the representation case is unreported and is set out in the Appendix (A122). JURISDICTION The judgment of the court of appeals was entered on July 20, 1984. Following this judgment, petitioner filed a timely petition for rehearing containing suggestions for rehearing en banc. On September 7, 1984, the court of appeals denied the petition. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1254(1). CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED This case involves the following constitutional provisions and federal statutes: (a) U.S. Constitution, Art. 1, § 9, Clause 3 No Bill of Attainder or ex post facto Law shall be passed. (b) U.S. Constitution, Amendment V No person shall . . . be deprived of life, liberty, or property, without due process of law... . (c) 29 U.S.C. § 185(a) (a) Suits for violation of contracts between an em- ployer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdic- tion of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. (d) 29 U.S.C. § 186 (a) It shal! be unlawful for any employer or association of employers or any person who acts as a labor relations expert, adviser, or consultant to an employer or who acts in the interest of an employer to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or other thing of value— (1) to any representative of any of his employees who are employed in an industry affecting com- merce; or 4 (2) to_any labor organization, or any officer or employee thereof, which represents, seeks to repre- sent, or would admit to membership, any of the employees of such employer who are employed in an industry affecting commerce; or (3) to any employee or group or committee of employees of such employer employed in an industry affecting commerce in excess of their normal com- pensation for the purpose of causing such employee or group or committee directly or indirectly to in- fluence any other employees in the exercise of the right to organize and bargain collectively through representatives of their own choosing; or (4) to any officer or employee of a labor organiza- tion engaged in an industry affecting commerce with intent to influence him in respect to any of his actions, decisions, or duties as a representative of employees or as such officer or employee of such labor organization. * * * * * (c) The provisions of this section shall not be ap- plicable * * * * * (5) with respect to money or other thing of value paid to a trust fund established by such representa- tive, for the sole and exclusive benefit of the employ- ees of suci employer, and their families and dependents (or of such employees, families, and dependents jointly with the employees of other em- ployers making similar payments, and their families and dependents): Provided, That (A) such payments are held in trust for the purpose of paying, either from principal or income or both, for the benefit of employees, their families and dependents, for medi- cal or hospital care, pensions on retirement or death of employees, compensation for injuries or illness resulting from occupational activity or insurance to provide any of ihe foregoing, or unemployment benefits or life insurance, disability and sickness insurance, or accident insurance; (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer, and employees and employers are equally repre- sented in the administration of such fund. * * * * * (e) 29 U.S.C. § 158 (a) It shall be an unfair labor practice for an em- ployer— (i) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 157 of this title; * * * * * (5) to refuse to bargain collectiveiy with the repre- sentatives of his employees, subject to the provisions of section 159(a) of this title. * * * * * (d) For the purposes of this section, to bargain collec- tively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if re- quested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession: (f) 29 U.S.C. § 160 (a) The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting com- merce. This power shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, law, or otherwise: * * * * * (b) Whenever it is charged that any person has engaged in or is engaging in any such unfair labor practice, the Board, or any agent or agency designated by the Board for such purposes, shall have power to issue and cause to be served upon such person a complaint stating the charges in that respect, and containing a notice of hearing before the Board or a member thereof, or before a designated agent or agency, at a place therein fixed, not less than five days after the serving of said complaint: Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made, (g) Multiemployer Pension Plan Amendments Act of 1980, § 306 (94 Stat. 1295) (29 U.S.C. §§ 1132(g)(2), 1145) SEC. 306. LIQUIDATED DAMAGES WITH RESPECT TO DELINQUENT CONTRIBUTIONS (a) Part 5 of subtitle B of title I is amended by adding after section 514 the following new section: “DELINQUENT CONTRIBUTIONS “SEC. 515. 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, oe een cre rete oe > make such contributions in accordance with the terms and conditions of such plan or such agreement.” (b) Section 502 is amended by— (1) redesignating subsection (b)(1) and (2) as sub- section (b)(1) (A) and (B), and adding at the end thereof the following new paragraph: “(2) The Secretary shaJl not initiate an action to en- force section 515”; (2) redesignating subsection (g) as paragraph (1) of such subsection and inserting “(other than an action described in paragraph (2))” between “title” and “by” in such redesignated paragraph (1), and adding at the end thereof the following new para- graph: “(2) In any action under this title by a fiduciary for or on behalf of a plan to enforce section 515 in which a judgment in favor of the plan is awarded, the court shall award the plan— “(A) the unpaid contributions, “(B) interest on the unpaid contributions, “(C) an amount equal to the greater of— “(i) interest on the unpaid contributions, or “(ii) liquidated damages provided for under the plan in an amount not in excess of 20 percent (or such higher percentage as may be permitted under Federal or State law) of the amount determined by the court under subparagraph (A), “(D) reasonable attorney’s fees and costs of the action, to be paid bv the defendarc, and “(E) such other legal or equitable relief as the court deems appropriate. For purposes of this paragraph, interest on unpaid contri- butions shall be determined by using the rate provided under the plan, or, if none, the rate prescribed under section 6621 of the Internal Revenue Code of 1954.” (h) Multiemployer Pension Plan Amendments Act of 1980, § 108(a)(1) (94 Stat. 1267) “Except as provided in paragraphs (2), (3) and (4), the amendments to this Act made by the Multiemployer Pension Plan Amendments Act of 1980 shall take effect on the date of the enactment of that Act.” STATEMENT OF THE CASE This petition is the most recent round in a much litigated dispute between General Marine Transport Corp. (“peti- tioner”), the operator of two vessels which dispose of sewage sludge in New York Harbor, and Local 333, United Marine Division, International Longshoreman’s Association (“Local 333”), a union which at one time represented petitioner’s employees. Respondents invoked the jurisdiction of the district court under the Labor Management Relations Act § 301, 29 U.S.C. § 185 (“§ 301” or “LMRA § 301”). For its counter- claim, petitioner invoked the jurisdiction of the district court under LMRA § 302, 29 U.S.C. § 186 and 28 U.S.C. §§ 1331 and 1337. The case was decided on cross-motions for summary judgment and all factual inferences should be made in favor of petitioner. At issue here are pension and insurance trust fund payments (“Fund payments”) allegedly due from petitioner under a disputed collective bargaining agreement covering the period 1976-1979 (the “Agreement”). Petitioner refused to abide by the Agreement because it covered employees the vnion did not represent. In previous litigation, the court of appeals set aside 9 a NLRB decision and held that petitioner had no duty under the National Labor Relations Act (“NLRA”) to abide by the Agreement. General Marine Transport Corp. v. NLRB, 619 F.2d 180 (2d Cir. 1980). Petitioner is now appealing a subse- quent decision by a different panel of the court of appeals, holding that petitioner nonetheless owes Fund payments under that Agreement based on LMRA § 301. In addition, petitioner appeals the decision below to include a double interest penalty and attorneys’ fees—a total award ($314,000) four times com- pensatory damages. The district court based its authority to assess these penal damages on a statute passed in 1980, four years after this dispute arose. Finally, petitioner appeals the circuit court’s decision to dismiss petitioner’s counterclaim to transfer payments petitioner made to Local 333’s trust funds during the period 1973-1976. The transferred funds ($200,000) would cover employees the NLRB, in 1976, included in a bargaining unit ineligible to participate in the trust. These employees were expelled from Local 333 after they voted for a different unioa and will never be entitled to benefits unless the funds are transferred. The dispute arose in 1976, during collective bargaining between Local 333 and the Marine Towing & Transportation Industry Employees Association (the “Association”), a multi- employer bargaining unit representing many shipping compa- nies operating in the Port of New York. In 1976, petitioner authorized the Association to negotiate on its behalf a contract with Local 333 covering the employees on petitioner’s only vessel, the sludge vessel “Susan Frank”. (Petitioner later ac- quired a second sludge vessel.) The Association instead signed a three-year Agreement to take effect April 1, 1976, purporting to cover the employees on some fifteen vessels, the sludge vessel and all those operated by two other companies affiliated with petitioner: Berman Enterprises Inc. (“Berman”) and Stan- dard Tank Cleaning Corp. (“Standard”). Petitioner, Berman and Standard are all owned by the Berman family. However, Berman’s and Standard’s employees, unlike petitioner’s, were not members of Local 333. In addition, most Local 333 10 members employed by petitioner worked on the vessels of petitioner’s affiliates, side by side with non-Local 333 mem- bers. On April 13, 1976, petitioner repudiated the Agreement, objecting to the attempt to cover its employees who worked on the affiliates’ vessels, as well as the attempt to cover the affiliates’ employees. Petitioner also objected to a clause which would have required it to cease doing business with a customer who operated unmanned barges. When Local 333 members on the sludge vessel struck, petitioner replaced them with non- union employees and members of a rival union, the Marine Engineer Beneficial Association (““MEBA”). The MEBA had been organizing the employees of petitioner and its affiliates. Petitioner provided these employees with a health insurance plan and never abided by the Agreement on the sludge vessels or any other vessels. As a result of petitioner’s refusal to abide by the Agreement, Local 333 pressed four unfair labor practice complaints against petitioner and affiliates between April and August 1976. None led to an unfair labor practice charge. The NLRB decided that petitioner and affiliates rightfully refused to abide by the Agreement. Specifically, the NLRB held that the Agreement had attempted to encompass employees not in the bargaining unit, and that the unmanned barge clause amounted to an illegal “hot cargo” agreement. (A79-81) In addition, as a result of MEBA’s interest in representing the employees, the NLRB held representation hearings and conducted an election. The NLRB excluded only petitioner’s employees on the sludge vessels on the grounds that the Agreement constituted a “con- tract bar” to their participation. The election was held and the employees chose Local 333’s rival, MEBA, to represent them. After losing the election, Local 333 expelled petitioner’s employees who participated in the election. The NLRB certified the election results on Jan- uary 20, 1977. In February 1977, Local 333 again filed unfair labor practice charges with the NLRB, claiming that petitioner’s continued ee a a ee 11 refusal to abide by the Agreement for the employees on its two Sludge vessels was an unfair labor practice now that the election was over. In September 1978, the NLRB sided with Local 333, holding that Local 333’s demands to enforce the Agreement only with respect to the two Sludge vessels consti- tuted “fresh demands” that should be honored. The NLRB held that petitioner had violated its duty to bargain with the union under NLRA § 8(a)(5), 29 U.S.C. § 158(a)(5), by refus- ing to abide by the Agreement. In December 1978, respond- ents, trustees of Local 333-Association trust funds, started this § 301 action to collect payments allegedly due under the Agreement. However, in March 1980, the court of appeals set aside the unfair labor practice charge, holding it was barred by the six month statute of limitations in 29 U.S.C. § 160(b) because it was filed a year after petitioner repudiated the Agreement. 619 F.2d 180. There seems to be no dispute that this earlier decision determines that petitioner had no duty under the NLRA to honor the union’s demands to abide by the Agreement, even when limited to the two sludge vessels, once six months after the April 1976 repudiation had passed. In December 1981, the district court decided this case on summary judgment and held that petitioner was bound by the Agreement to make Fund payments for employees on the sludge vessels. The court held a six year, rather than a six month, statute of limitations applied in the § 301 action. The district court refused to recognize the court of appeals decision as res judicata or collateral estoppel, notwithstanding the holding that petitioner’s refusal to honor the Agreement did not violate the duty to bargain with the union. On top of that, the district court awarded respondents penalties and attorneys’ fees amounting to four times compensatory damages under a Statute enacted in September 1980—four years after the Agree- ment’s term began, more than one year after its expiration, and several years after respondents’ action was filed. 12 In July 1984, the court of appeals affirmed the district court’s decision. Petitioner seeks the grant of a writ of cer- tiorari to the court of appeals. REASONS FOR GRANTING THE WRIT THE CIRCUITS CONFLICT ABOUT DISTRICT COURT JURISDICTION TO DECIDE CASES IN WHICH THE EXISTENCE OF A COLLECTIVE BARGAINING AGREEMENT IS IN DISPUTE. The writ should be granted because the limits of district court jurisdiction under § 301 to enforce a collective bargain- ing agreement is an important subject about which the circuits conflict. See Teamsters v. California Consolidators, Inc., 693 F.2d 81 (9th Cir. 1982), cert. denied, 53 U.S.L.W. 3263 (Oct. 9, 1984) (dissenting opinion); Carpenters v. Pratt-Farnsworth, Inc., 690 F.2d 489 (Sth Cir. 1982), cert. denied, 104 S. Ct. 335 (1983); Electrical Workers v. lowa Electric Light and Power Co., 668 F.2d 413 (8th Cir. 1982). This case shows that the wider conflict between the circuits, which the dissenting jus- tices in California Consolidators feared, is occurring. In addi- tion, the jurisdiction of the NLRB to resolve representational and unfair labor practice disputes relating to collective bar- gaining is undermined by conflicting decisions in § 301 suits, such as the decision in this case. This case is a good one in which to consider § 301 jurisdic- tion because the controversy was extensively litigated before the NLRB. The NLRB Regional Director dismissed unfair labor practice charges filed by the union and the NLRB General Counsel affirmed. The NLRB held representation hearings and an election under NLRA § 9, 29 U.S.C. § 159, to resolve questions of representation and conducted an unfair labor practice proceeding under NLRA § 10, 29 U.S.C. § 160, to litigate whether petitioner had a duty under NLRA § 8, 29 13 U.S.C. § 158, to abide by the contract after the election. Unlike the decisions in which this Court has denied certiorari, here we know that the litigation in the district court produced a result the opposite of the result in NLRB proceedings. The interference with NLRB jurisdiction is real and actual in this case. A major problem with the decisions of the courts of appeal in these kinds of cases is the absence of any rule or standard to determine the jurisdictional question. Here, the court of ap- peals concluded that the district court did not exceed its jurisdiction under § 301 to hear a breach of contract suit because the district court said this was a contract case and not a collective bargaining dispute: “the district court explicitly held there was a valid con- tract between the parties and that General Marine at- tempted to repudiate the contract . .. The court therefore did not order the execution of a labor contract, a remedy that concededly lies exclusively within the en- forcement power of the National Labor Relations Board.” (A9) However, this is a tautology: the result rationalizes the result. Clearly, the district court and the court of appeals could not find a contract in this case based upon the terms of the contract; § 301 jurisdiction does not exist simply by claiming a contract exists. The court should have considered whether the facts presented a dispute that should be resolved under NLRA § 8, 29 U.S.C. § 158—based on the duty to bargain and enter into a contract—or could be resolved solely under the terms of the contract itself. Accord Electrical Workers v. lowa Electric Light and Power Co., 668 F.2d at 419, in which the Eighth Circuit drew the line “between those cases where the district court has jurisdiction under Section 301 and those in which it does not” by “examining the major issues to be decided as to whether they can be characterized as primarily representational or primarily contractual.” Kaiser Steel Corp. v. Mullens, 455 U.S. 72, 83 (“federal courts do not have jurisdiction over 14 activity which ‘is arguably subject to §7 or §8 of the [NLRA]’ ”). The writ should be granted to resolve the conflict between the circuits and decide this question of great impor- tance in delineating the roles of district courts and the NLRB in hearing labor disputes. THE DUTY TO ABIDE BY A COLLECTIVE BARGAINING AGREEMENT SHOULD BE TIME-BARRED IN SECTION 301 ACTIONS IF IT IS TIME-BARRED IN UNFAIR LABOR PRACTICE PROCEEDINGS; THE COURT OF APPEALS APPLIED DEL COSTELLO V. TEAMSTERS TOO NARROWLY. The writ should be granted to establish that De/ Costello v. Teamsters, 462 U.S 151 (1983), is not limited to a particular kind of lawsuit. The six month statute of limitations in 29 U.S.C. § 160(b) should apply to any § 301 claim that is based upon a duty derived from the National Labor Relations Act, such as the duty to abide by a multiemployer collective bar- gaining agreement. Uniformity between district courts and the NLRB is essential to prevent forum shopping and relitigation of disputes, as well as to protect the employer’s ability to bargain. An employer with no duty to honor a labor contact under 29 U.S.C. § 158 cannot effectively fulfill his duty under that statute to bargain with his employees for a mutually agreeable alternative agreement in the face of a conflicting § 301 contractual liability. In a system in which both courts and an administrative agency hear labor disputes, the result should not depend upon the forum. The court of appeals conceded that General Marine, 619 F.2d 180, establishes that the six month statute of limitations in 29 U.S.C. § 160(b) time-bars any unfair labor practice claim derived from the employer’s refusal to abide by the contract (A1l2). That conclusion should have barred re- spondents’ claim. Instead, the court of appeals decided that stn ema Se eS ee 15 De! Costello v. Teamsters—in which 29 U.S.C. § 160(b) was applied in a § 301 action—.is limited to “hybrid section 301/un- fair representation cases” since: “they closely resemble employees unfair labor practice actions which are geverned by that _ limitations period . . . and cannot reasonably be expanded to all section 301 claims that involve facts which might also have established unfair labor practice charges.” (A12) However, the facts in this case do not simply resemble those which might have established an unfair labor practice action. The facts underlying the district court’s decision are identical to those underlying the NLRB’s unfair labor practice deci- sion—the one the court of appeals reversed: “In this case the district court applied those [NLRA] principles correctly; indeed it reached the same conclusion on the same reasoning as the Board did in the order that was vacated in this court on statute of limitations grounds.” (A15) The statute of limitations should be the same whether an action is brought as an unfair labor practice or a § 301 action. Indeed, the six month limitations period applies better in this case than in the hybrid § 301/fair representation situation found in Del Costeilo. In the latter circumstance, the unfair representation claim against the union derived from the NLRA, but the claim against the employer involved a simple breach of contract with no NLRA implications. In contrast, in this case the § 301 claim against the employer derives from the NLRA as well. It comes from the duty to abide by a collective bargaining agreement negotiated by a multiemployer associa- tion, a duty litigated and developed in actions before the NLRB. E£.g. Charles D. Bonanno Linen Service, Inc. v. NLRB, 454 U.S. 404 (1982) (bargaining impasse is not a sufficient reason to withdraw from multiemployer bargaining); NLRB v. Siebler Heating & Air Conditioning, Inc., 563 F.2d 366 (8th Cir. 1977), cert. denied, 437 U.S. 911 (1978) (multiem- 16 ployer association’s failure to provide fair representation means employer not bound by collective bargaining agree- ment). The writ should be granted to establish that De/ Cos- tello stands for a uniform six month statute of limitations in any § 301 case in which the claim is based upon the NLRA. This will eliminate forum shopping, relitigation of disputes, and minimize the potential for imposing conflicting obligations on employers. AN EMPLOYER SHOULD NOT BE LIABLE UNDER A COLLECTIVE BARGAINING AGREEMENT HE HAS NO DUTY TO HONOR UNDER THE NATIONAL LABOR RE- LATIONS ACT; THE DECISION BELOW CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER CIRCUITS. The writ should be granted to establish that an employer’s duty to bargain under 29 U.S.C. § 158 determines whether he is obligated to abide by a collective bargaining agreement in a § 301 action. The decision below is in direct conflict with Garment Workers v. NLRB, 366 U.S. 731 (1960). In that unfair labor practice case, this Court held that when the union does not represent a majority of the employees, the entire contract is unenforceable, even with respect to employees the union might properly represent. 366 U.S. at 737-38. The decision below also conflicts with decisions of other courts of appeals which hold that when an unfair labor practice case establishes there is no duty to abide by a contract, a § 301 action cannot come to a contrary conclusion. Carpen- ters v. Stevens, 743 F.2d 1271 (9th Cir. 1984) (NLRB Regional Director’s dismissal of unfair labor practice charges precludes § 301 action to enforce arbitrator’s award imposing contrac- tual liability); Local 7-210 v. Union Tank Car Co., 475 F.2d 194 (7th Cir. 1973), cert. denied, 414 U.S. 875 (1973). In this case, the NLRB Regional Director and General Counsel specifically held that petitioner’s refusal to abide by the collective bargaining agreement was not an unlawful re- A pal te GORE EOE Ae) ame he A te Oc et we hit Gib Ay 17 fusal to bargain, citing B&B Industries, Inc., 162 N.L.R.B. 633 (1967) (A79-80). The NLRB’s dismissal of the charges here followed well established policy, first announced in Midwest Piping & Supply Co., 63 N.L.R.B. 1060 (1945). The rule is that an employer, faced with a question of representation, may not execute or bargain for a contract with either the incumbent or a rival union. Furthermore, the court of appeals in General Marine Transport Corp. v. NLRB decided that petitioner had no duty to abide by the collective bargaining agreement after the election. The prior litigation should have determined that petitioner had no contractual liability for pension fund contributions. The duty to bargain collectively includes “the negotiation of an agreement, or any question arising thereunder, and the execu- tion of a written contract . . . .”, 29.U.S.C. § 158(d) (empha- sis added). If the NLRB determines that the employer has no duty to abide by the terms of a collective bargaining agree- ment, then the employer and union know thai their obligations are to bargain for another, mutually agreeable contract. If pension fund trustees in a § 301 action can enforce an agree- ment the employer has no duty to honor under 29 U.S.C. § 158, the employer will not be able to fulfill his statutory duty to bargain with the union for a different contract. Cf. Ameri- can Commercial Barge Lines Co. v. SIU, 730 F.2d 327, 335-37 (Sth Cir. 1984) (NLRB has primary jurisdiction to consider employer’s refusal to make pension contributions). The court of appeals disregarded the direct connection between the duty to bargain and the duty to abide by a specific collective bargaining agreement defined in 29 U.S.C. § 158{d)—and the obvious benefit of consistency—for the stated goal of protecting “employees clearly represented by Local 333 whose pensions are at issue here” (A17). However, if the court was carving an exception from the rules to protect employees, it carved in the wrong place. By disregarding the rules announced in Garment Workers, and Midwest Piping, the court of appeals protects no one. Petitioner never followed the contract—a decision the court of appeals upheld in the prior 18 decision—and Local 333 members were never more than a minority on the sludge vessels. The employees for whom contributions are claimed will not accumulate sufficient pen- sion credits to obtain benefits; they will never see a penny of the money. Moreover, the judgment—four times the contributions paya- ble if the Agreement had been followed—deprives the em- ployer of a considerable amount of money that could otherwise have provided pensions its employees would actually receive. In essence, the liability imposed is a penalty on both the employer and employees fcr resolving representation dispu- tes and unfair labor practices before the NLRB, rather than capitulating to the demands of a union the employees did not want. The duty to bargain under 29 U.S.C. § 158 should govern the existence of a contract for purposes of a § 301 action. The writ should be granted to establish this principle. IV. CONGRESS DID NOT INTEND AN EMPLOYER TO VIO- LATE A 1980 STATUTE BY REPUDIATING A CONTRACT IN 1976 OR TO PENALIZE LAWFUL COLLECTIVE BAR- GAINING; THE COURT SHOULD CLARIFY MPPA § 306 TO ELIMINATE CONFLICT WITH THE NLRA. The judgment holds that petitioner violated § 306 of the 1980 Multiemployer Pension Plan Amendments Act (“MPPA”), 94 Stat. 1295, 29 U.S.C. §§ 1132(g) and 1145 (A72-73). In Kaiser Steel Corp. v. Mullens, 455 U.S. at 87-9, this Court expressed doubt that § 306 applied retroactively, but did not decide the question. Section 306 imposes double interest and attorneys’ fees on an employer who fails to pay pension fund contributions due under a collective bargaining agreement. By enforcing § 306 against petitioner, the court of appeals, in effect, holds that petitioner violated federal law by refusing to abide by a collective bargaining agreement, even though the refusal was a legitimate response under the NLRA to the union’s demands. Sabb Wesates dioncsint TSS nti dd REE IA Dy I Do WK SRR eg: get MlAMD R AIIE ARE AG IO ENE A oa Ne vi, et 19 The Court should grant the writ, first, to decide whether the retroactive application of statutory penalties in a civil action runs afoul of the due process and ex post facto clauses of the Constitution. The Court has not previously reviewed this question. The notice to employers present in Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 104 S. Ct. 2709 (1984), does not exist when the new statute is applied to conduct taking place four and one-half years before § 306 was enacted. Nor is there any Congressional intent to apply § 306 retroac- tively as there was in the Pension Benefit case. See MPPA § 108(a)(1), 94 Stat. 1267 (statute effective on date of enact- ment unless specified otherwise). The award exceeds compen- satory damages fourfold. The resulting penalty is a clear violation of constitutional rights that should be rectified. Second, the Court should grant this writ to clarify § 306 and eliminate conflict between it and the NLRA. Congress limited § 306 so that it would apply “to the extent not inconsistent with law.” Petitioner’s refusal to abide by the agreement was a proper, lawful response to the union’s demands, as the pro- ceedings before the NLRB and court of appeals show. Peti- tioner was entitled to persist in its position and require the union to engage in bargaining for a different contract. 29 U.S.C. § 158(d) (the obligation to bargain “does not compel either party to agree to a proposal”). This Court should establish that an employer’s NLRA-sanctioned refusal to ex- ecute or abide by a collective bargaining agreement does not violate § 306. To conclude otherwise would interfere with rights guaranteed by the NLRA. The “to the extent not inconsistent with law” language in § 306 is aimed at this problem. Kaiser Steel Corp. v. Mullens, supra. Congress did not intend to reduce or discourage collective bargaining or the exercise of rights under the NLRA when it passed legislation requiring the prompt payment of pension contributions. 20 V. SUBSTANTIAL MONIES CONTRIBUTED BY THE EM- PLOYER FOR THE BENEFIT OF EMPLOYEES WILL BE LOST TO THEM UNLESS THE WRIT IS GRANTED; NO GROUP SHOULD BE DENIED A REMEDY UNDER 29 U.S.C. § 186(C)(5) BECAUSE THEY ARE FEW IN NUMBER. The NLRB placed most of petitioner’s employees in a separate bargaining unit not covered by Local 333 multiem- ployer agreements. The employees elected a different union, MEBA, to represent them. Petitioner previously made contri- butions ($200,000) to the Local 333 trust funds for them. Under 29 U.S.C. §186(c)(5), the contributions petitioner made should be administered for the benefit of the employees. In Local 50 Health Benefit Fund v. Local 3 Welfare Fund, 733 F.2d 229 (2d Cir. 1984), the court of appeals held that 29 U.S.C. § 186(c)(S) requires partition of trust fund contribu- tions when employees choose a different labor union. See also Alvares v. Erickson, 514 F.2d 158 (9th Cir., 1975), cert. denied, 423 U.S. 874 (1975). Before this landmark decision, employees saw pension monies vanish when labor unions changed or employers reorganized. This decision offered a flexible remedy that ERISA and the 1980 Multiemployer Pension Fund Amendments Act, with rigid statutory requirements, cannot provide. This is a case in point. The pension statutes do not protect petitioner’s employees; a partition under 29 U.S.C. § 186(c)(5) would. Unfortunately for petitioner’s employees, the district court dismissed petitioner’s counterclaim and the court of appeals affirmed. It distinguished the earlier decision by a different panel in the Local 50 case to a situation in which: “all of the employers and employees. . . have left a fund en masse creating a great distortion in the organization and financing of the funds.” (A24). 21 However, as a practical matter, none of petitioner’s employees are eligible to participate in Local 333’s trusts. To do so, they would have to be Local 333 members working under a Local 333 agreement. Since 1976, none of petitioners’ employees have met these conditions. Requiring petitioner to pay quadru- ple compensation into the Local 333 trust will benefit some- one’s employees, but not those of petitioner. The appeals court decision works a great injustice on peti- tioner and its employees in the separate bargaining unit. When they participated in the NLRB representation hearing, all were told that the NLRA guaranteed that no harm would come from voting for the union of their choice. The employees work for the same employer and on the same vessels as before the election. Yet they are no longer eligible to participate in the Local 333 trust funds despite all the contributions made on their behalf. Finally, the court of appeals apparently feels it would be cumbersome to partition funds for relatively small employee groups, as that involved here. But no group of employees should be deprived of monies contributed for their benefit just because they are few in number. This Court should grant the writ to establish that 29 U.S.C. § 186(c)(5) requires district courts to grant equitable relief when groups of employees withdraw from multiemployer trust funds, just as a court would grant such relief when a partnerhsip or any other joint venture dissolves. 22 CONCLUSION For the reasons stated above, petitioner asks the Court to grant the petition and issue a writ of certiorari to the court of appeals. Respectfully submitted, JARED STAMELL, ESQ. Attorney for Petitioner 540 Madison Avenue New York, New York 10022 (212) 752-9222 Dated: New York, New York December 6, 1984 APPENDIX la Opinion of the Court of Appeals UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT aos No. 1353—August Term, 1983 (Argued June 4, 1984 Decided July 20, 1984) Docket No. 83-7848 aos JOSEPH O’HARE, ALBERT M. CORNETTE, PETER GALE, BrucE A. MCALLISTER, ROBERT W. SANDERS, THOMAS E. MORAN, as Trustees of the New York Marine Towing & Transportation Industry Pension Fund and Insurance Fund, Appellees, —_—_vV.— GENERAL MARINE TRANSPORT CORP, Appellant. Before: OAKES and NEWMAN, Circuit Judges, and MISHLER, District Judge.* _* ° Of the Eastern District of New York, sitting by designation. 2a Appeal from a number of related orders and opinions of the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, granting summary judgment for plaintiff Pension and Insurance Funds trustees and against defendant employer. The court awarded the Funds damages for delinquent contributions | found to be owed by the employer pursuant to § 301 of LMRA, 29 U.S.C. § 185, and § 502 of ERISA, 29 U.S.C. § 1132. Affirmed. as JARED STAMELL, New York, NY, for Appel- lant. SEYMOUR M. WALDMAN, New York, NY (Ro- man Beck, Beck, Halberg & Williamson, New York, NY; Vladeck, Waldman, Elias & Engelhard, P-C., New York, NY, of counsel), for Appellees. - OAKES, Circuit Judge: This is an appeal from a number of orders of the United States District Court for the Southern District of New York, Robert W. Sweet, Judge, granting summary judgment for trustees of employee benefit pension and insurance funds and assessing damages against an em- ployer for delinquent contributions. In essence, the court held that the trustees were owed the money, along with a double interest penalty and attorney’s fees. We affirm. 3a The four unpublished decisions appealed from repre- sent the most recent phase of what appears to be an endless dispute between General Marine Transport Corp. (General Marine), the owner of sludge vessels used to dispose of sewage sludge which work in the Port of New York, and the union which represents, or purports to represent, its employees, Local 333, United Marine Divi- sion, International Longshoreman’s Association, AFL- CIO (Local 333). The rights and duties of the various parties to this dispute have been extensively litigated—be- fore the National Labor Relations Board (the Board or the NLRB), a number of times before Judge Sweet, and twice recently in this court. See Berman Enterprises Inc. v. Local 333, 644 F.2d 930 (2d Cir.), cert. denied, 454 U.S. 965 (1981); Generai Marine Transport Corp. v. NLRB, 619 F.2d 180 (2d Cir. 1980). We assume familiarity with our previous decisions. At issue in this case are pension and insurance trust fund payments (Fund payments) allegedly due from the employer pursuant to a collective bargaining agreement covering the period 1976-79 (the Agreement). The Agree- ment was between Local 333 and the Marine Towing & Transportation Industry Employees Association (the As- sociation), an association representing shipping compa- nies in the towing and transportation industry in the Port of New York in a multi-employer bargaining unit. Since the 1950s the collective agreements have provided for both a Pension Fund and an Insurance Fund, and since 1962 General Marine has been a member of the Associa- tion and a Fund participant. The focus of this litigation is General Marine’s conten- tion that it withdrew from the Association after the 1976 Agreement was reached and that it therefore is not obliged to make Fund payments to the trustees pursuant 4a to the Agreement. This issue of the validity of General Marine’s attempted withdrawal from the Association in 1976 was litigated but not reached in General Marine Transport, 619 F.2d 180 (holding unfair labor practice charge against employer barred by statute of limitations). The district court held, as the Board had held before it, that General Marine was a party to the Agreement and that its purported withdrawal from the Association was invalid; it therefore held that the employer owed the trustees the Fund payments in question. In so holding, the court also ruled on a number of preliminary contentions raised by General Marine: that the district court had subject matter jurisdiction over this action, that the action was not barred by res judicata, that the suit was not barred by the statute of limitations, and that the suit was not barred because the trustees failed to exhaust their administrative remedies. In a separate Opinion the court calculated damages in a manner challenged by General Marine, and also, on cross motions for summary judg- ment, dismissed General Marine’s counterclaim having to do with certain related Fund payments made by General Marine to the Fund. We affirm the district court’s opin- ion in all respects. Facts The relevant history of the bargaining between the parties is set out in Berman Enterprises, 644 F.2d at 932-34. Briefly put, in 1976 General Marine’s president, Evelyn Berman Frank, signed a written form authorizing the Association to bargain with Local 333 on General Marine’s behalf, as it had since 1962. In the course of the negotiations, Local 333 proposed, and the Association accepted, two contract provisions authorizing practices Sa which General Marine had in the past found objection- able, so-called “vegetable oil” and “subsidiaries and affil- iates” clauses.' Although given a chance by Local 333 and the Association to withdraw from the Association be- cause of these clauses, General Marine chose to remain in the Association. The Agreement was signed on March 26, 1976, and became effective on April 1.’ On April 13, 1976, General Marine notified the Asso- ciation and Local 333 that it did not consider itself bound by the Agreement because the contract exceeded the authority of the Association to negotiate on its behalf. In particular, General Marine objected to the “vegetable oil” and the “subsidiaries and affiliates” clauses. As of April 1, General Marine stopped making contributions to either the Insurance or the Pension Fund for its employees. The dispute about the “subsidiaries and affiliates” clause, which is relevant to the counterclaim and to one of General Marine’s substantive defenses, involves a long- standing argument between General Marine and Local 333 concerning the employees covered by the 1973-76 agreement. General Marine is one of three subsidiary ! Before 1976, Local 333 had sought to require General Marine and a number of other affiliated companies to cease towing certain un- manned barges carrying animal, vegetable or fish oil. The employers resisted, and the question was eventually litigated, with General Marine obtaining a favorable result. See Berman Enterprises, 644 F.2d at 932-33. The “vegetable oil” clause at issue here presented another attempt by Local 333 to impose this limitation on General Marine. The “subsidiaries and affiliates” clause requires affiliates of Association members to operate under the terms of the contract. The clauses are reprinted at id. nn. 3, 4. 2 The Agreement was signed by a representative of Local 333 on behalf of the employees and a representative of the Association on behalf of the participating employers. Individual employers did not sign the Agreement, though their names were listed at the bottom of the Agreement. 6a companies, along with Berman and Standard Tank, which cperate barges in New York harbor and whic’: are all owned by the Berman family. Only General Marine em- ployees were explicitly covered by the Association-Local 333 agreements. The situation was complicated, however, by the Berman family’s practice of having employees on the payroll of one affiliate work from time to time aboard vessels owned by another affiliate. When General Marine employees worked aboard Berman vessels, their employer treated them as were subject to the salary and other provisions of a contract covering Berman, rather than General Marine employees, but General Marine made payments to the Funds on their behalf as dictated by the agreement with Local 333. Local 333 sought to have all Berman family employees, or, failing that, at least all employees on General Marine’s payroll, determined to be members of Local 333 and bound by the Agieement. The issue was litigated before the Board, and General Marine obtained favorable re- sults. In particular, it was determined that Berman em- ployees were not covered by the Agreement, and that there was no “contract bar” preventing the Berman em- ployees and the General Marine employees working on Berman vessels from holding an election to choose a bargaining representative. An election was held, and the employees in question chose to be represented by a non-Local 333 union, the Marine Engineers Beneficial Association (MEBA). These employees were then expelled from Local 333. Questions involving the representational Status of all Berman family employees were, or at least should have been, resolved. After the representational questions had been resolved, Local 333 filed unfair labor practices charges with the Board concerning General Marine’s repudiation of the Ta Agreement as regards General Marine employees working on General Marine vessels—the only employees whom the Board found were members of Local 333. The Board held that General Marine was bound by the Agreement as regarded these employees and had therefore committed an unfair labor practice by attempting to repudiate it. This court then denied enforcement of the Board order, on the procedural ground that the union had not filed the charge within the six-month statute of limitations of section 10(b) of the National Labor Relations Act (NLRA), 29 U.S.C. § 160(b) (1982). General Marine Transport Corp., 619 F.2d 180. The trustees were nof parties to that action. Subsequently, General Marine and its affiliates sued the Association, many of its members, Local 333, and the trustees, in federal district court, asserting that the Agree- ment, and in particular the “vegetable oil” and “subsidi- aries and affiliates” clauses were illegal and constituted a group boycott in violation of the antitrust laws. The trustees counterclaimed to recover the Fund payments at issue here, but before trial the claims against the trustees were voluntarily dismissed, and the counterclaim was dismissed and subsequently reasserted in the separate complaint which was litigated below. A jury resolved the antitrust suit in favor of the defendants, a verdict which was upheld on appeal. Berman Enterprises, 644 F.2d 930. The present suit, evolving from the counterclaim in the antitrust suit, sought recovery of the unpaid Fund contri- butions due for the General Marine employees working on General Marine vessels, including interest and attor- ney’s fees pursuant to section 502 of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1132. General Marine counterclaimed seeking repay- ment to it or to a receiver for certain funds paid to the 8a trustees in the 1973-76 period for the General Marine employees who worked on Berman vessels who, after the 1976 representation election was held, chose to join the MEBA. The suit was litigated in five stages and resulted in four unpublished decisions. Initially the court on cross mo- tions for summary judgment ruled that General Marine was liable for the unpaid contributions. A separate dam- ages trial was then held, at which time the court granted the trustees’ motion to dismiss the counterclaim. The court awarded the trustees $87,903.46 in pension and health insurance contributions, and $154,404.98 in double interest. Next General Marine moved to have the first decision reconsidered in light of De/Costello v. Teamsters, 103 S. Ct. 2281 (1983), arguing that in light of that decision the suit should have been dismissed as time barred. The court reconsidered its decision but held that the six month statute of limitations the Court held appli- cable in De/Costello did not apply in this instance. Finally the court awarded $71,694.37 in attorney’s fees and costs to the trustees as prescribed by ERISA. On appeal General Marine challenges each one of the district court’s determinations. We will address each of its objections, dealing first with its jurisdictional and proce- dural objections, then with its objections as to the finding of liability and the assessment of damages and attorney’s fees, and finally to its objections to the court’s dismissal of the counterclaim. Discussion Jurisdiction. General Marine asserts that the district court lacked jurisdiction to decide the question whether General Marine was a party to the Agreement. It argues Se 9a that the district court found that it never entered into a contract, and that in the absence of such a contract the court lacked jurisdiction to entertain a section 301 suit between non-contracting parties. See, e.g., Aacon Con- tracting Co. v. Association of Catholic Trade Unionists, 178 F. Supp. 129, 129-30 (E.D.N.Y. 1959), aff'd, 276 F.2d 958 (2d Cir. 1960). The short answer to this argument is that it grossly mischaracterizes the factual findings of the district court. The court did not hold that General Marine illegally refused to execute the contract. Rather the court explicitly held that there was a valid contract between the parties and that General Marine attempted to repudiate the contract: [T]he April 13 repudiation was an ineffective ter- mination of the agreement for collective bargaining purposes and General Marine, as of that point, remained bound by the agreement. . . . The April 13 Frank letter after the contract had been agreed upon, was untimely and also ineffective under federal labor law and policies. The court therefore did not order the execution of a labor contract, a remedy that concededly lies exclusively within enforcement power of the National Labor Relations Board. E.g., Wm. Chalson & Co. v. Amalgamated Jew- elry Workers Local No. 1, 478 F. Supp. 1103, 1108 (S.D.N.Y. 1979). The court concluded that the facts made out a classic section 301 case of breach of a labor contract, and correctly based its jurisdiction on that statute. The fact that the court relied on federal labor law principles derived from NLRB adjudications in order so to catego- 10a rize the dispute and subsequently in order to rule on the substantive issues raised does not deprive the court of jurisdiction under section 301. See Smith v. Evening News Association, 371 U.S. 195 (1962). Evening News makes clear that courts in section 301 suits are entitled to consider facts that may also make out an unfair labor practice within the competence of the NLRB. See Amal- gamated Association of Street, Electric Railway & Motor Coach Employees of America v. Lockridge, 403 U.S. 274, 301 (1971). Insofar as General Marine’s jurisdic- tional argument constitutes an indirect attack on the district court’s factfinding and characterization of this action, for reasons we will fully discuss later we find the court’s factfinding amply supported by the evidence on the record. Res judicata. General Marine asserts that this court’s prior holding in General Marine Transport, 619 F.2d 180, presents a res judicata bar to the current litigation. In that case it was determined that Local 333’s unfair labor practice charge brought by the Board against General Marine, asserting that General Marine was not entitled to repudiate the Agreement, was time barred. The district court agreed that the two actions involved the same core of operative facts (General Marine’s participation in, and attempted repudiation of, the Agreement), and that a ruling in Local 333’s favor in the first action would have resulted in the trustees’ recovering at least some of the damages they seek in the present action. The district court nonetheless ruled that res judicata did not apply because both the parties and some of the issues were different in the two suits, and the contract issue, though litigated, was not necessarily determined in the earlier action. lla We agree fully with the district court’s resolution of the res judicata argument. The trustees, plaintiffs in this suit, were not a party to the earlier action, nor could they be considered privies to Local 333 as a matter of law by virtue of the divergent responsibilities of pension or insurance fund trustees and union officials and lack of any showing of an agency relation. Cf. NLRB v. Amax Coal Co., 453 U.S. 322 (1981) (employer-selected trustees of trust fund are not “representatives” of the employer for purposes of the National Labor Relations Act); NLRB vy. Truck Drivers Local Union No. 449, 728 F.2d 80 (2d Cir. 1984). To the extent that National Benefit Fund for Hospital and Health Care Employees v. Presbyterian Hospital, 448 F. Supp. 136 (S.D.N.Y. 1978), suggests a contrary result, we decline to follow it. Moreover, there was simply never a prior holding on the scope of the Agreement and the effect of General Marine’s attempted revocation which could bar future litigation on this question. All that was fully litigated in General Marine was the question how the six month statute of limitations applicable for unfair labor practice actions was to be tolled in the context of Local 333’s unfair labor practice charge brought to the NLRB. The underlying contract question reached by the Board was not reached on the appeal in General Marine. This is a section 301 action, which, as we discuss infra, is governed by a different statute of limitations period, so the prior statute of limitations determination in General Marine does not act as a res judicata bar to the present action. Limitations period. General Marine asserts that under the rule established in Del/Costello v. Teamsters, 103 S. Ct. 2281 (1983), the six month limitation period of 29 U.S.C. § 160(b) should be applied to this section 301 suit. 12a If that limitations period did apply, the suit would con- cededly be time barred under the facts as found in General Marine, 619 F.2d 180. DelCostello held that the six month limitations period of the NLRA should apply to hybrid section 301/fair representation cases since they closely resemble employee unfair labor practice actions which are governed by that limitations period. However, this suit much more closely resembles the traditional section 301 breach of contract action that has in the past been governed by analogous state contract law limitations, in this case New York’s six year limitations period. N.Y. Civ. Prac. Law § 213.2 (McKinney 1972). See Auto Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 707 (1966). De/Costello itself quoted with approval the holding in Hoosier Cardinal,’ and we agree with the district court that the De/Costello holding turns on the particular nature of the duty of fair represen- tation action, and cannot reasonably be expanded to all section 301 claims that involve facts which might also have established an unfair labor practice charge. Exhaustion of administrative remedies. Appellant claims that the suit should be barred because the trustees failed to make use of the arbitration procedures available to them in the agreement. The existence of a duty of 3 The following language from Hoosier Cardinal was quoted with approval in De/lCostello: The present suit is essentially an action for damages caused by an alleged breach of an employer’s obligation embodied in a collective bargaining agreement. Such an action closely resembles an action for breach of contract cognizable at common law. Whether other § 301 suits different from the present one might call for the application of other rules on timeliness, we are not required to decide,. . . . 383 U.S., at 705 n.7. 103 S. Ct. at 2289-90 (citations omitted). 13a trustees to arbitrate claims for unpaid contributions be- fore pursuing judicial remedies is to be determined by analyzing the collective bargaining agreement and trust agreement to see whether they call for such arbitration. Schneider Moving & Storage Co. v. Robbins, 52 U.S.L.W. 4476 (U.S. Apr. 18, 1984). Here the court undertook such analysis and determined that the Agree- ment’s general arbitration provision did not apply to the trustees, since it explicitly referred only to claims by the employer, the union, or the Association. Since one spe- cific arbitration provision did allow trustees to arbitrate when the amount of a delinquency was in issue, the court reasoned expressio unius that the exclusion of the trustees from all other parts of the arbitration section was inten- tional. The court’s construction of the agreement is sound, especially in light of Schneider Moving Co., de- cided after the district court’s decision here. It is not even argued that the trust agreements themselves make the question(s) arbitrable. The merits. The district court found that General Marine was a party to the Agreement signed by the Association on its behalf. It based this conclusion on the fact that Mrs. Berman gave written authorization to the Association to negotiate on behalf of General Marine as well as on the fact that Mrs. Berman later reaffirmed her intention to remain in the Association and be bound by the Agreement in spite of the inclusion of the two clauses to which General Marine objected. General Marine’s name was listed as one of the employers on behalf of which the Agreement was signed, and the Agreement became effective at the expiration of the prior agreement, binding General Marine after it was signed, see supra note 2, on March 26, 1976. l4a General Marine argues that it never executed the Agree- ment since it repudiated it by letter on April 13 and stopped making Fund payments on the supposed effective date of the Agreement, April 1. However, the district court correctly, if implicitly, found that it was not up to General Marine to “execute” the agreement, at least in the sense of agreeing to be bound by it after it was signed. It had previously agreed to have the Association act as its agent, and when the Association’s representative signed the Agreement, at that point General Marine, and all the other represented employers, were bound by it. To sug- gest otherwise is to ignore the past practice and clear understanding of the employers who made up the Asso- ciation, as well as any coherent principles of agency law generally* or particularly in the context of the federal labor law. As we have indicated, supra note 2, individual employers did sot sign onto the Agreement, nor was there any formal or informal device or procedure whereby they had a right to accept or reject it after it was signed by the Association on their behalf. The court next found as a matter of federal labor law that Evelyn Frank’s April 13 letter of repudiation was an ineffective termination of the Agreement and that, there- fore, General Marine remained bound by that agreement. The court reached this conclusion by applying the labor law principle that an employer may not, barring “unusual circumstances,” withdraw from a multiemployer bargain- ing unit without mutual consent once the negotiations have commenced. E.g., Charles D. Bonanno Linen Ser- 4 Under general common law agency principles, a principal is not entitled to repudiate its agent’s authority after a contract entered into by the agent on behalf of the principal is executed and has become effective. See Restatement (Second) of Agency §§ 124A, 125 (1958). lSa vice, Inc. v. NLRB, 454 U.S. 404, 410-11 (1982); NLRB v. Paskesz, 405 F.2d 1201.(2d Cir. 1969). Federal courts are at times obligated to apply labor law principles in adjudicating claims under independent statu- tory grounds of jurisdiction. See, e.g., Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 85 (1982); Textile Workers Union v. Lincoln Mills, 353 U.S. 448 (1957). In this case the district court applied those principles correctly; indeed, it reached the same conclusion on the same reasoning as the Board did in the order that was vacated by this court on statute of limitation grounds. General Marine Transport, 619 F.2d 180. General Marine argues that in any event it was entitled to repudiate the agreement (or, as it would have it, entitled to refuse to execute the agreement), because the “unusual circumstances” exception should have been ap- plied in this case, since the Association had entered into an agreement that covered unrepresented employees, see NLRB v. Local 210, International Brotherhood of Team- sters, 330 F.2d 46 (2d Cir. 1964), and had thus exceeded its authority to negotiate on behalf of General Marine. General Marine points to the disputed “vegetable oil” and “subsidiaries and affiliates” clauses as evidence that the Association had exceeded its authority and purported to bind unrepresented employees. While it is true that there are “unusual circumstances” which could justify a repudiation in this context, see, e.g., NLRB y. Siebler Heating & Air Conditioning, Inc., 563 F.2d 366 (8th Cir. 1977), cert. denied, 437 U.S. 911 (1978), General Marine’s argument fails here on a num- ber of grounds. Even assuming, arguendo, that the two disputed clauses are illegal,” none of the employees for 5 This court has held that the two clauses do not violate the antitrust laws. Berman Enterprises, 644 F.2d 930. However, the Regional Direc- l6a whom the employer withheld Fund contributions is in any way involved in the dispute about the two clauses,° so that even if the clauses are invalid this would not justify the nonpayments at issue here under the “wnusual circum- stances” exception, nor make the entire contract unen- forceable and void. Cf. Lewis v. Seanor Coal Co., 382 F.2d 437, 440-41 (3d Cir. 1967) (a “hot cargo” provision would not make entire agreement void and unenforce- able), cert. denied, 390 U.S. 947 (1968). Neither an invalid contract provision nor a union unfair labor prac- tice constitutes a defense to a trustees’ suit for unpaid contributions unless the illegality lies in the trust provi- sion sued on. See Kaiser Steel Corp. v. Mullins, 455 U.S. 72, 83-86 (1982); cf. Lewis v. Benedict Coal Corp., 361 U.S. 459 (1960) (union breach does not give rise to defense against duty to contribute to welfare fund). Nor is this a case like, e.g., JLGWU v. NLRB, 366 U.S. 731 (1961), where an entire contract was found unenforceable because the union did not have majority support of the people on whose behalf it purportedly was bargaining. See also Mohawk Business Machines Corp.., 116 NLRB 248 (1956). Such a mistake obviously would tor of the Board refused to issue a complaint brought by Local 333 against General Marine concerning General Marine’s abrogation of the 1976-79 Agreement before the representation question concerning the General Marine employees on Berman vessels had been settled. She did so because she found that the “subsidiaries and affiliates” clause was an attempt to include employees not in the bargaining unit, and because she found that the vegetable oil clause was a “hot cargo” clause in violation of section 8(e) of the NLRA, 29 U.S.C. § 158(e) (1982). 6 The vegetable oil clause affects only Berman since only Berman tows vegetable oil barges. The “subsidiaries and affiliates” clause does not purport to bind any of the General Marine employees for whom pension and insurance payments are being sought, since these employ- ees are all General Marine employees working on General Marine vessels and were Local 333 members. 17a infect the entire contract. Here, whatever problems there are with the “subsidiary and affiliates” clause do not affect the obligations General Marine has toward its employees clearly represented by Local 333 whose pen- sions are at issue here. Nor does the fact that Local 333 may have violated a no-strike clause, thereby, in General Marine’s view, ending its obligations to the union, relieve General Marine of its obligations to the trustees in the absence of agreement to this effect. Lewis v. Benedict Coal Corp., supra. In sum, we agree with the district court that General Marine’s termination was ineffective, and it therefore remained obliged to make Fund pay- ments during the 1976-79 period. The damage award. General Marine makes numerous objections to the $314,000 awarded the trustees as dam- ages in this action. First it argues that since it provided alternate insurance coverage for its employees during the time in question, and because the trust therefore did not have to pay for insurance for the covered General Marine employees during that time, it should not be held liable to the Insurance Fund for unpaid contributions. However, the Agreement did not give General Marine the right to choose to whom it would make insurance payments. It was obliged to pay into the Funds established by the Agreement. The multiemployer Fund, which purchases a form of group insurance, is contractually required to keep the group intact, and the fact that appellant’s improper conduct now requires it in essence to pay twice is simply irrelevant as regards its obligation to the Fund. See Brogan v. Swanson Painting Co., 682 F.2d 807, 809 (9th Cir. 1982)(employer’s obligation to make contribu- tions to trust fund on behalf of employees for whose benefits employer paid cash); Local 9, International 18a Union of Operating Engineers v. Siegrist Construction Co., 458 F.2d 1313, 1316 (10th Cir. 1972). General Marine next objects to the fact that the court awarded the trustees prejudginent interest at the rate set out in the Agreement—2% above the prevailing rate charged by Citicorp Bank. It argues that such a rate constitutes punitive liquidated damages and it should therefore not be enforced as against public policy. However, section 502(g) of ERISA, 29 U.S.C. § 1132(g)(2), explicitly states that “interest on unpaid contributions shall be determined by using the rate pro- vided under the plan” or if none is specified a statutorily prescribed rate based on an adjusted prime rate figure. 26 U.S.C. § 6621 (1982). The statute itself allows plans to include a 20% liquidated damages provision, 29 U.S.C. § 1132(g)(2)(C)Gi), so it could hardly be considered against public policy for the parties to agree to a rate of 2% above the prime rate. General Marine also objects to the court’s awarding the trustees double interest and attorney’s fees pursuant to 29 U.S.C. §§ 1132(g), 1145, which mandate these damages for suits to enforce the terms of plans. Those sections were added to the statute in a 1980 amendment to ERISA. This suit was instituted before 1980, and General Marine argues that the statute should not be applied to it retroactively. The district court applied the general rule that a court applies the law in effect at the time it renders its decision unless doing so would result in a manifest injustice or would be contrary to legislative intent. Bradley v. Rich- mond School Board, 416 U.S. 696, 711 (1974). Finding no injustice or contrary legislative intent, it applied the 1980 amendments, relying on other decisions that have also applied them in this context. See Central States, 19a Southeast and Southwest Areas Pension Fund v. Alco Express Co., 522 F. Supp. 919 (E.D. Mich. 1981). See also San Pedro Fisherman’s Welfare Trust Fund Local 33 v. Di Bernardo, 664 F.2d 1344, 1346 (9th Cir. 1982); cf. Bugher v. Consolidated X-Ray Service Corp., 705 F.2d 1426 (Sth Cir. 1983) (applying the 1974 ERISA attorneys’ fees provisicn to a suit initiated pre-ERiSA), cert. denied, 52 U.S.L.W. 3844 (U.S. May 21, 1984). But see Ham- mond v. James W. Griffin Co., 520 F. Supp. 162 (N.D. Ga. 1981). General Marine’s argument is that section 1132(g)(2) is not merely an additional remedy imposed on already proscribed conduct, but rather that it is a provision which creates a new violation of federal law, since it specifically penalizes violations of 29 U.S.C. § 1145, a section that was also added in 1980. It would therefore be unjust, it argues, to impose a penalty for conduct that would not have subjected it to federal liability when it was commit- ted. Whatever the strength of this argument as a matter of law, cf. generally Pension Benefit Guaranty Corp. v. R. A. Gray & Co., 52 U.S.L.W. 4810 (U.S. June 18, 1984) (not unconstitutional for Congress to impose withdrawal liability retroactivity), it misstates the facts. A default in fund contributions would have subjected General Marine to federal liability before the 1980 amendments, albeit under a different statutory provision. See 29 U.S.c.A. § 1132 (1975) (pre- amendment); Lewis v. Benedict Coal Corp., 361 U.S. 459 (1960). The 1980 amendments in this regard did not penalize conduct which was previously not subject to federal liability, they merely changed the reme- dial scheme somewhat by requizing the award of interest and attorney’s fees where previously those remedies were assessed at the discretion of the trial judge. See Alco, 522 20a F. Supp. at 922-23. The amendments also provided for a double interest payment or alternative liquidated damages to compensate the fund for costs incurred in connection with delinquencies. Jd. at 928. Moreover, the fact that the complaint was not formally amended to allege a violation of new section 1145 does not make application of the new statutory penalty inap- propriate or unfair, as General Marine asserts. The appli- cability of the double interest provision was fully briefed and argued below, so appellant can hardly argue that it was not on notice of the claim. Moreover, the court was entitled to enter whatever relief it felt appropriate at the trial, whether or not it was requested in the pleadings. Rule 54(c), Fed. R. Civ. P.; Newberger, Loeb & Co. v. Gross, 611 F.2d 423, 432-33 (2d Cir. 1979) (awarding prejudgment interest). Finally, General Marine objects to the court’s decision to award attorney’s fees to the trustees pursuant to section 1132(g) for costs incurred defending the counter- claim, arguing that it is not properly part of the “action” to enforce plan payment for which fees are authorized under section 1132(g)(2). However, the counterclaim was between the same parties, grew out of the same general contractual dispute, and, if successful, would have stopped the trustees from collecting any damages in the Original suit, as it sought recovery of a sum greater than that sought by the plaintiffs. In those circumstances, the court was entitled to award attorney’s fees to the trustees to defend the counterclaim, and indeed appellant points to no case law or statute which suggests otherwise. It was part of the same action. The counterclaim. General Marine’s counterclaim seeks repayment from the trustees for around $200,000 of health insurance and pension contributions made to them 2la during 1973-76 for the General Marine employees who worked on Berman vessels. General Marine asserts that these employees were never properly part of Local 333 or therefore attorned to the 1973-76 agreement, and that the payments made for those employees pursuant to that agreement should never have been made and did not benefit those employees. It requests that the money be returned and placed with an independent receiver. General Marine rests its argument on two grounds relating to alleged violations of LMRA section 302(c)(5), 29 U.S.C. § 186(c)(5) (1982).’ First, it asserts that, pur- suant to section 302(c)(5)(B) as interpreted by Moglia v. Geoghegan, 403 F.2d 110 (2d Cir. 1968), cert. denied, 394 U.S. 919 (1969), the contributions should never have initially been made to the Funds. Second, it claims that the contributions now will not be used “for the sole and exclusive benefit of the [covered] employees” as required by section 302(c)(5), and so should be returned to a receiver to be used for the benefit of the employees. Initially, as the district court noted, there is a substan- tial standing barrier to General Marine’s making these claims at all, in particular in making its second claim. General Marine has no personal stake in the outcome of this controversy, e.g., Warth v. Seldin, 422 U.S. 490, 498-99 (1975). If it were to prevail, a receiver would have to be appointed to hold the money for the benefit of either the affected employees or the MEBA trust. General Marine neither alleges that it was injured in any way by 7 (c) Exceptions The provisions of this section shall not be applicable. . . (5) with respect to money or other thing of value paid to a trust fund established by such representative, for the sole and exclusive benefit of the employees of such employer, . . . Provided, That . . . (B) the detailed basis on which such payments are to be made is specified in a written agreement with the employer. . . . 22a its purportedly improper payments, nor that it will gain in any way if it succeeds in the counterclaim. Nor is it in a position as an employer to sue on behalf of its former employees. See Fire Equipment Manufacturers’ Associa- tion, Inc. v. Marshall, 679 F.2d 679, 681, 683 (7th Cir. 1982) (OSHA standards), cert. denied, 103 S. Ct. 728 (1983). None of the cases General Marine relies upon were brought alone by an employer—in each case either a trust fund, a union, or groups of employees have partici- pated when a trust fund is sued on the ground that some other fund or group of employees is entitled to money that has been deposited in the fund. But even if as settlor of the trust General Marine has standing, the district court correctly concluded that General Marine was not entitled to recover on the coun- terclaim. Under section 302(c)(5)(B) of the LMRA, 29 U.S.C. § 186(c)(5)(B), an employee benefit fund may not accept contributions from an employer unless the em- ployer is party to a written document specifying the basis for the contribution. Moglia, 403 F.2d 110. General Marine argues that the employees in question were found not to have been covered by the 1973-76 agreement, so that there was no written agreement authorizing the payments, and the money should therefore be returned to it. The argument is that the Board made a determination that there was no contract bar to holding a representa- tional election for all employees who worked on Berman barges, including those at issue here who were on General Marine’s payroll at the time. Thus it is argued that there was no valid written agreement with Local 333 covering these General Marine employees working on Berman barges which would allow General Marine to contribute to the Funds for these employees. 23a However, the Board’s determination that there was no contract bar to holding a representational election is not equivalent to a holding that for all purposes there is no valid written agreement between the employees and another bargaining representative. See The Kroger Co., 165 NLRB 872 (1967); General Extrusion Co., 121 NLRB 1165 (1958). The “contract bar” doctrine is a prudential concept used by the Board for representational election purposes only. Here there clearly was a written agreement covering all of General Marine’s employees, including the employees in question here, at least as regards Fund payments. As the district court noted, each month General Marine submitted contributions to the trustees along with written and signed records stating that given amounts of contributions were being made for all their employees, including those who were working on Berman vessels. The Fund paid ali benefit claims for these em- ployees, and the Pension Fund has given full eligibility and pension credit for the entire period. The situation deemed not to give rise to a contract bar here is nothing like that in Moglia, where an employee’s widow unsuc- cessfully sought to recover pension payments. There the trustees refused to pay th» funds to the alleged benefi- ciary, successfully contending that the employee’s em- ployer had never entered into a collective bargaining agreement or a pension trust with the union. Here the trustees have paid out all the claims for the employees in question, and there is no question that General Marine had a valid contract with Local 333 and that the employ- ees in question were on General Marine’s payroll. General Marine’s second and more substantial argu- ment is that the retention by the Funds of contributions made on behalf of these employees violates that part of section 302(c)(5) which requires that an employer’s contri- 24a butions must be “for the sole and exclusive benefit of the employees of such employer ... .” General Marine contends that section 302(c)(5) requires that a voluntarily departing group of employees be permitted to take a portion of the pension fund with them, either through direct repayment of contributions or through segregation of assets to be administered by a court-appointed ad- ministrator. See Local 50 Health Benefits Fund v. Local 3 Welfare Fund, No. 83-7648, slip op. at 3123 (2d Cir. Apr. 19, 1984); Alvares v. Erickson, 514 F.2d 156 (9th Cir.), cert. denied, 423 U.S. 874 (1975). However, this is not a case like Local 50 or Alvares where an entire group of employers and their employees (Alvares), or all of an employer’s employees (Local 50) have left a fund en masse creating a great distortion in the organization and financing of the Funds.® In those cases the “failure to transfer the portion of its reserves attribut- able to [the departing employer’s contribution means that]. . . none of [the employer’s] employees will benefit at all from [the employer’s] contributions.” Local 50, slip op. at 3138 (emphasis in original). It was precisely on that ground that Local 50 was distinguished from United Mine Workers of America Health & Retirement Funds v. Rob- inson, 455 U.S. 562 (1982), where it was held that section 302(c)(5) did not otherwise impose a reasonableness re- quirement on welfare plan provisions. Jd. at 570-76. Here some employees once on General Marine’s payroll voluntarily chose to join a different union and therefore a 8 Most problems created by employer withdrawal from multi-em- ployer pension plans have subsequently been resolved by statute in the Multiemployer Pension Plan Amendments Act of 1980, which, how- ever, did not apply to changes in bargaining representation occurring before April 29, 1980. See 29 U.S.C. §§ 1415, 1461(e)(2)(a) (1982). 25a different welfare and pension plan. Other employees remained on General Marine’s payroll and remained members of Local 333 and fund participants. To claim that monies retained by the Funds contributed by an employer on behalf of all its employees is not contributed “for the sole and exclusive benefit of the employees of such employer” whenever some of the employees choose to leave the union and fund would be an unfair and unrealistic construction of section 302(c)(5). This is espe- cially true when considering pension funds, where financ- ing is based on long-range actuarial projections and vesting requirements which assume that some employees for whom contributions are made will never be eligible for benefits. See, e.g., Aitken v. IP & GCU-Employer Retirement Fund, 604 F.2d 1261, 1267-68 (9th Cir. 1979); 29 U.S.C. § 1053 (1982).° Here the employees in question received pension credit for the entire period in question. Some of these employees already have vested pension rights and others may achieve vesting under the terms of the plan while members of the MEBA. Simply put, section 302(c)(5) does net require that when a small number of employees leave a large multiemployer unit, pension funds, by virtue of that circumstance alone, must return money contributed on their behalf to the employ- ees or their new funds. Judgment affirmed. 9 It is worth noting in this regard that neither Local 50 nor Alvares involved pension funds, both being suits to recover welfare fund reserves. 26a Opinion of the District Court dated December 4, 1981 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK December 4, 1981 No. 78 Civ. 6277 (RWS) — JOSEPH O’HARE, Albert M. Cornette, Peter Gale, Bruce A. McAllister, Robert W. Sanders and Thomas E. Moran, as Trustees of the New York Marine Towing and Transporta- tion Industry Pension Fund and Insurance Fund, Plaintiffs, v. GENERAL MARINE TRANSPORT CORPORATION, Defendant. com BERMAN ENTERPRISES, INC., Standard Tank Cleaning Corp., and General Marine Transport Corp., Plaintiffs, Vv. LOCAL 333, UNITED MARINE DIVISION, ILA, et al., Defendants. + OPINION SWEET, District Judge. Plaintiff trustees of the New York Marine Towing and Transportation Industry Pension Fund and Insurance Fund 27a (“the Trustees” or “the Funds”) are seeking a partial summary judgment against defendant General Marine Transport Corpo- ration (“General Marine”) on the issue of liability for contri- butions allegedly due the Funds pursuant to a collective bargaining agreement between Local 333, United Marine Divi- sion, International Longshoreman’s Association, AFL-CIO (“Local 333”), and the Marine Towing and Transportation Employers’ Association (“the Association”), an association representing companies in the multi-employer bargaining unit of which General Marine is alleged to be a member. General Marine has also moved for summary judgment and seeks dismissal of the complaint. For the reasons stated below, which constitute the findings of fact and conclusions of law, the motion of the Trustees will be granted, and the motion of General Marine will be denied. Certain issues involving these, or related parties, have been the subject of extensive litigation before the Second Circuit, the NLRB, and this court. Familiarity with General Marine Transport Corp. v. NLRB, 619 F.2d 180 (2d Cir. 1980) Berman Enterprises, Inc. v. Local 333, United Marine Division, Inter- national Longshoreman’s Assoc., 644 F.2d 930 (2d Cir. 1981) and their underlying facts is assumed. The undisputed facts set forth by both the Trustees and General Marine with respect to the instant motion are briefly set forth below. General Marine is a wholly owned subsidiary of a holding company owned by various members of the Berman family. It operates sludge vessels used for dumping sewage sludge out at sea. From 1973 through 1976 General Marine, as a member of the Association, was a party to a collective bargaining agree- ment with Local 333. Shortly before the agreement expired, General Marine completed an authorization form authorizing the Association to negotiate on its behalf. During the negotia- tions the question of resignation by General Marine from the Association arose, as well as a proposed contract provision binding General Marine and its “affiliates.” General Marine was given the opportunity to resign from the Association, but refused to do so. On March 26, 1976, the Association and Local 333 executed a new three-year collective bargaining 28a agreement (“the contract”). Although substantially renewing the basic provisions of the prior agreement, it purported to cover all employers as well as a “subsidiary company, an affiliated company or a company division in the Port of New York and vicinity.” On April 13, 1976 Peter Frank, Vice President of General Marine (“Frank”) wrote to Local 333 stating the refusal of General Marine to be bound by the contract, claiming that its scope exceeded the Association’s authority. Between April and August, 1976, Local 333 filed several unfair labor practice charges with the Board against Genera! Marine and Berman. The first complaint was denied by the Board. In the second complaint, Berman and the Board agreed in a settlement that Berman would not recognize the Marine Engineers’ Beneficial Association (“MEBA”) until representation proceedings were completed. The third charge was withdrawn by Local 333 in light of the representation proceedings. On December 10, 1976 in the representation proceedings the Regional Director deter- mined that General Marine was bound by the contract and therefore barred from having election proceedings and that Berman and its other affiliates should have elections to deter- mine the proper bargaining agent. Local 333 alone requested review of this decision which was denied by the Board. After an election MEBA was certified as the bargaining agent for ships owned by Berman and its affiliates other than the two ships operated by General Marine, the Susan Frank and the Rebecca K. Between January and March, 1977, with the representation question settled, Local 333 demanded that General Marine honor the terms of the contract. On February 28, 1977, Local 333 filed an unfair labor practice charge with the Board. The Administration Law Judge (“ALJ”), relying on the report from the representation proceedings pursuant to § 102.67(f) of the Board’s Rules and Regulations, found that General Marine was bound by the contract and had committed an unfair labor practice. The Board affirmed the decision on October 24, 1978. The Second Circuit set aside the Board’s decision hold- 29a ing that the unfair labor practice was time-barred by the six-month filing provision of § 10(b) of the National Labor Relations Act (““NLRA”), 29 U.S.C. § 160(b). General Marine Transport Corp. v. NLRB, 619 F.2d 180 (2d Cir. 1980). After the April 13, 1976 notice of termination by General Marine, referred to above, the members of Local 333 struck the two General Marine barges for two days on April 28, 1976. General Marine contends that the strike was a response to implementation of the wage rates under the new contract. The Trustees asserted that the strike was due to unauthorized manning changes on the vessels. Frank, by letter dated April 30, 1981, claimed that, because of the strike, General Marine would no longer be bound by the contract pursuant to Article I, Section 8 of the contract which provides in part that “[u]pon the violation of this [no strike] Section by the Union or any of the Employees, this Agreement may be terminated with respect to and by all and any of the Employers.” The strike ended that day after discussions between Frank and union representatives. The Trustees contend that the termination was rescinded, and General Marine contends that the termination remained in effect with Local 333 agreeing to work under the emergency health situation then existing. There is a factual issue therefore as to the basis of the strike and its resolution. This action by the Trustees seeking recovery of pension fund contributions under the contract initially was brought as a counterclaim in the anti-trust case brought by Berman against Local 333 and the Association, referred to earlier. After the Trustees were dropped as defendants in that action, the coun- terclaim was severed from the anti-trust suit and asserted through an independent complaint. It is the only contract violation presently being asserted against General Marine that is before the court. Jurisdiction for this action is properly predicated on § 301 of the Labor Management Relations Act of 1947 (““LMRA”), 29 U.S.C. § 185, and the Employee Retirement and Income Se- curity Act of 1974 (“ERISA”), 29 U.S.C. § 1001 ef seq; see Lewis v. Benedict Coal Corp., 361 U.S. 459, 80 S.Ct. 489, 4 L.Ed.2d 442 (1960); American Ben. Plan Admin., Inc. v. D & 30a E Corp., 90 CCH Labor Cases 4 12,428 (C.D.Cal.1980); Hann v. Harlow, 271 F.Supp. 674 (D.Or.1967). Although the facts that give rise to a § 301 claim may well have been actionable as an unfair labor practice within the proper jurisdiction of the National Labor Relations Board (“NLRB”), § 8 of the National Labor Relations Act (“NLRA”) 28 U.S.C. § 158, the board’s jurisdiction is not exclusive: The authority of the Board to deal with an unfair labor practice which also violates a collective bargaining con- tract is not displaced by § 301, but it is not exclusive and it does not destroy the jurisdiction of the court under § 301. Smith v. Evening News Ass’n, 371 U.S. 195, 197, 83 S.Ct. 267, 268, 9 L.Ed.2d 246 (1962); see also Amalgamated Ass’n of Street, Electric Railway, & Motor Coach Employees v. Lockridge, 403 U.S. 274, 277-301, 91 S.Ct. 1909, 1913-1925, 29 L.Ed.2d 473 (1971); Orange Belt District Council of Pain- ters No. 48 v. Maloney Specialties, Inc., 639 F.2d 487, 490 (9th Cir. 1980). Therefore this court properly has jurisdiction over this action. In General Marine Transport Corp. v. NLRB, 619 F.2d 180, the Second Circuit determined that Local 333’s unfair labor practice charge brought by the board against General Marine was time-barred by the six-month filing provision of § 10(b) of the NLRA, 29 U.S.C. § 160(b). Thus the court granted General Marine’s petition to set aside an NLRB order in favor of Local 333. This decision does not present a res judicata bar l Wm. Chalson & Co. v. Amalgamated Jewelry, Diamond & Watchcase Workers Union, 478 F.Supp. 1103, 1108 (S.D.N.Y. 1979), does not suggest that the court lacks jurisdiction. There the court refused to compel an employer to arbitrate under a collective bargaining agreement reached after his withdrawal from the industry bargaining association despite the claim of an unfair labor practice resulting from such withdrawal. Despite its unwill- ingness to enforce the contract, the association’s agency having been termi- nated, the court deferred to a pending NLRB unfair labor practice proceeding to determine the validity of the contract and the effect of the withdrawal. The court did not hold that it lacked jurisdiction to consider the validity of the contract. 3la to this case nor collaterally estop the determination of the issues relevant to this case since the causes of action differ and the issues relevant to the instant action were not necessarily previously determined. The judicially developed doctrine of res judicata evolved primarily to avoid repetitious litigation of the same causes of action. Commissioner of Internal Revenue v. Sunnen, 333 U.S. 591, 597, 68 S.Ct. 715, 719, 92 L.Ed. 898 (1933). Through its operation parties to an action or their privies are barred from relitigating a cause of action where a judgment on the merits has already been rendered, Baltimore S.S. Co. v. Phillips, 274 U.S. 316, 319, 47 S.Ct. 600, 601, 71 L.Ed. 1069 (1927), and there is an identity of parties and issues between the two actions. Expert Electric, Inc. v. Levine, 554 F.2d 1227, 1232-33 (2d Cir., cert. denied, 434 U.S. 903, 98 S.Ct. 300, 54 L.Ed.2d 190 (1977). The doctrine of collateral estoppel renders a prior judgment conclusive as to matters necessarily determined and litigated in the prior action. Commissioner of Internal Revenue v. Sunnen, 333 U.S. at 597-98, 68 S.Ct. at 719; Expert Electric, Inc. v. Levine, 554 F.2d at 1233. A “cause of action” for res judicata purposes “is not a matter of precision nor subject to the application of any mechanical formula.” /d. at 1234. The facts surrounding the transaction or occurrence, rather than the legal theory upon which a litigant relies, is generally stated to constitute the cause of action and entails considering whether the rights determined in the prior action would be impaired by the subsequent action. Id.; Moreno v. Marbil Productions, Inc., 296 F.2d 543, 545 (2d Cir. 1961). Here although the legal theory for this action differs from the NLRB cause, both arose from the same core of operative facts and the prior action charging an unfair labor practice sought compliance with the contract which would have resulted in the payment of the amount claimed to be due in the current action. Since a ruling based on a statute of limitation is generally deemed a decision on the merits, Mathis v. Laird, 457 F.2d 926, 927 (Sth Cir.), cert. denied, 409 U.S. 871, 93 S.Ct. 32a 201, 34 L.Ed.2d 122 (1972), National Ben. Fund for Hospital & Health Care Employees v. Presbyterian Hospital in New York, Inc., 448 F.Supp. 136, 138 (S.D.N.Y.1978), the instant action may initially appear to be barred by the Court of Appeals decision in 1980. Under the circumstances of this type of action, however, res judicata should not apply both as a matier of equity and law. As noted above, the NLRB and the district court have concur- rent jurisdiction over two actions arising from the same set of facts and circumstances when the two claims asserted are for an unfair labor practice and for breach of a collective bargain- ing agreement. Smith v. Evening News Ass’n, 371 U.S. at 197, 83 S.Ct. at 268. Since jurisdiction for a § 301 claim for the funds to be paid under the contract is vested in the district court and not in the NLRB, a § 301 action could not have been brought in the prior proceeding before the NLRB. The present claim for relief sought, the payment of funds due under the agreement based on a breach of contract, though stemming from a common nucleus of facts, should not be barred by res judicata if it never could have been achieved in the prior proceeding. The issues are thus not identical and neither are the parties. Thus the pertinent inquiry addresses the collateral estoppel effect that results from the Second Circuit’s decision after the NLRB proceeding. The issues of the validity, repudiation and breach of the contract were not addressed in the prior action by the Circuit Court. The Second Circuit’s decision considered the date of the repudiation and whether a continuing repudia- tion could be considered a continuing unfair labor practice starting the six-month NLRB limitation period anew. 619 F.2d at 186-87; see Local Lodge 1424 International Assoc. of Machinists v. NLRB, 362 U.S. 411, 422, 80 S.Ct. 822, 829, 4 L.Ed.2d 832 (1960). The repudiation occurred on April 13, 1976, no subsequent actions were found to estop General Marine from asserting the statute of limitations defense, and the continuing violation theory was rejected. Genera! Marine Transport Corp, v. NLRB, 619 F.2d at 188. The validity of the 33a contract and the effect of repudiation were not considered. Although these issues were litigated, their resolution was not necessary to the determination of the prior action by the Second Circuit, hence no collateral estoppel. Commissioner of Internal Revenue v. Sunnen, 333 U.S. at 597-98, 68 S.Ct. at 719. Furthermore, the rights established in the Second Circuit’s decision will not be impaired by this holding. Since the unfair labor practice charge was dismissed on statute of limitations grounds, resort to the administrative procedures of the NLRB, and a hearing before an administrative law judge to redress an unfair labor practice was precluded by the delay in filing. Section 10(b) addresses the administrative remedies provided by Congress to resolve unfair labor practices, cf. United Parcel Services, Inc. v. Mitchell, 451 U.S. 56, 68 n.4, 101 S.Ct. 1559, 1567 n.4, 67 L.Ed.2d 732 (1981) (Stewart, J., concurring), while the definition of unfair labor practices is contained in another section. These administrative remedies do not address the availability of money damages as relief before a district court based on a breach of contract. Moreover, the NLRB’s jurisdiction over unfair labor practices does not preclude a district court from exercising jurisdiction over an action “even where such award presents a potential conflict with an NLRB decision.” Orange Belt District Council of Painters No. 48 v. Maloney Specialties, Inc., 639 F.2d at 490. The district court properly retains jurisdiction to the extent the § 301 action is governed by the collective bargaining agreement. Motor Coach Employees v. Lockridge, 403 U.S. at 300-01, 91 S.Ct. at 1924-25; Waggoner v. R. McGray, Inc., 607 F.2d 1229, 1234-35 (9th Cir. 1979). In addition the initiation of the unfair labor practice claim by the union before the NLRB did not constitute a waiver of § 301 claims by the trustee in the district court. Before the NLRB Local 333 sought to redress an unfair labor practice claiming that General Marine breached the contract. In the instant action the trustees seek to recover for payments al- legedly due based on the contract. Both claims have indepen- 34a dent and concurrent sources of jurisdiction and could not have been asserted in tl.e same forum. The assertion of one by the union does not bar assertion of the other by the trustees. National Benefit Fund for Hospital & Health Care Employees v. Presbyterian Hospital, 448 F.Supp. 136, is not to the contrary. In National Benefit, the plaintiff Fund, although not required to, agreed to submit a dispute to arbitration where it was determined that the claim was barred by laches. The Fund then sought to assert a claim again based on the collective bargaining agreement in district court under ERISA. The court held that res judicata from the arbitration award barred the district court action. In that case the parties voluntarily sub- mitted the dispute to arbitration for resolution, and then the losing party sought to assert the same basis for recovery in the district court as had been asserted in the arbitration proceed- ing. In the instant case, although both actions ultimately could turn on the validity of the collective bargaining agreement, independent and concurrent sources of jurisdiction are asserted as the basis for recovery. Since the prior and the instant claims are separate causes of action, they invoke separate and distinct statutes of limita- tions. As discussed and applied by the Second Circuit, the statute of limitations applicable to an unfair labor practice charge before the NLRB is six months. 29 U.S.C. § 160(b). Under § 301 the applicable statute of limitations is generally that of the state in which the cause of action arose with due regard for the federal policies involved. Jnternational Union, United Automobile, Aerospace & Agricultural Implement Workers v. Hoosier Cardinal Corp., 383 U.S. 696, 705-07, 86 S.Ct. 1107, 1113-14, 16 L.Ed.2d 192 (1966); cf. United Parcel Service, Inc. v. Mitchell, 451 U.S. at 60 & n.2, 65-71, 101 S.Ct. at 1562 & n.2, 1565-1568 (Stewart J., concurring). The appro- priate statute of limitations period for breach of contract actions in New York is six years und is applicable to the instant action. N.Y.Civ.Prac. Law and Rules § 213(2); Abrams v. Carrier Corp, 434 F.2d 1234, 1252-53 (2d Cir. 1970), cert. denied, 401 U.S. 1009, 91 S.Ct. 1253, 28 L.Ed.2d 545 (1971); 35a see also Savoretti v. Hotel & Restaurant Employees & Bar- tenders International Union Pension Fund, 470 F.Supp. 1286, 1289 (S.D.N.Y. 1979). Nor has the defendant submitted or this court found another New York statute of limitations that would be more appropriate. United Parcel Service v. Mitchell, 451 U.S. 56, 101 S.Ct. 1559, 67 L.Ed.2d 732 (1981). Thus this § 301 action is timely filed, properly before this court and not barred or decided by res judicata or collateral estoppel. The final asserted jurisdictional defect, that this action should be dismissed because of a failure to pursue arbitration procedures, see United Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 80 S.Ct. 1343 4 L.Ed.2d, 1403 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), is also without merit. The duty of a party to arbitrate before pursuing judicial proceedings is to be resolved by analysis of the collective bargaining agreement as it applies to the pension funds in accordance with applicable substantive federal law. Textile Workers Union vy. Lincoln Mills of Ala- bama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972 (1957); Rochdale Village, Inc. v. Public Service Employees Union, Local No. 80, 605 F.2d 1290, 1294 (2d Cir. 1979); Moruzzi v. Dynamics Corp. of America, 443 F.Supp. 332, 333 (S.D.N.Y.1977). Such analysis is properly before the court. John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 547, 84 S.Ct. 909, 913, 11 L.Ed.2d 898 (1964). Although in construing an arbitration clause, the duty to arbitrate is generally favored, United Steelworkers of America v. Warrior & Gulf Navigation, 363 U.S. 574, 582-83, 80 S.Ct. 1347, 1352-53, 4 L.Ed.2d 1409 (1960), none the less the duty must be enunciated in the contract. Gateway Coal Co. v. United Mine Workers, 414 U.S. 368, 374, 94 S.Ct. 629, 635, 38 L.Ed.2d 583 (1974). In the instant case the Funds were only beneficiaries and not parties to the collective bargaining agreement and indeed are indepen- dent of Local 333. The general arbitration provision in Article II of the collective bargaining agreement does not explicitly or implicitly apply to the Trustees. It explicitly refers to claims 36a brought by an employer, the union or the association and provides for the proper procedures for initiating arbitration. Since the Funds are otherwise mentioned in regard to arbitra- tion, their exclusion from the general provision combined with the specific mention of other parties indicates that the section is inapplicable to the Funds without reference to another section of the collective bargaining agreement. General Marine has not argued to the contrary. Article I, Section 16(d) of the contract deals with employer delinquencies in insurance and pension payments.’ This provi- sion refers to the union’s right to strike a delinquent employer without violating the “No Strike” clause of the contract. The section also specifically refers to the Trustees’ right to recover legal fees incurred in enforcing payment under the contract. One exception to the right to strike occurs when the employer ‘questions’ the amount due, in which case a bond shall be posted and the dispute shall be resolved through arbitration. Resort to arbitration occurs when the amount due is ques- tioned. In this case liability itself is contested, which is clearly beyond the scope of this narrow duty of the Trustees to arbitrate, particularly in light of the fact that the Trustees were 2 Section 16(d) of the contract provides in pertinent part: Nothing contained herein, huwever, shall prevent the Union from immediately striking the said delinquent Employer until all monies owed hereunder by the delinquent Employer are paid . . . and if the Trustees incur legal expense in enforcing payment of such delinquent amount, the Trustees shall also be entitled to recover their reasonable counsel fees and other expense incurred in effecting collection. Such strike shall not violate the “no strike clause” and shall not be subject to the grievance and arbitration machinery of this contract. In the event that the amount of delinquency alleged to be due by the Funds’ Administrator is questioned by the Employer, the Employer may post a surety company bond in a form satisfactory to the Administrator or in lieu thereof, a cash deposit, for the amount certified by the Administrator of the Funds, in which event the Union shall not strike the delinquent Employer before the date of termination set forth in the aforesaid notice and the amount in dispute shall be resolved in accordance with the grievance and arbitration machinery of this contract. Se EES MOM irae talio asia lacs e RARE IER | eS aay Se AED 37a not signatories to the collective bargaining agreement. See Lewis v. Benedict Coal Corp., 361 U.S. at 468-70, 80 S.Ct. at 494-95; Todd v. Casemakers, Inc., 425 F.Supp. 1375, 1378 (N.D.i11.1977); Wishnick v. One Stop Food & Liquor Store, Inc., 359 F.Supp. 239, 242-43 (N.D.III.1973). Under the cir- cumstances of this case and the terms of the collective bargain- ing agreement there was no duty to arbitrate on the part of the Trustees, and therefore no jurisdictional defect for their failure to do so. Next General Marine contends that it is not bound by the agreement because it purported to bind all affiliates of General Marine, and therefore under traditional agency law the con- tract was beyond the scope of the Association’s authority. Scientific Holding Co. v. Plessey, Inc., 510 F.2d 15 (2d Cir. 1974). Although the contract did purport to bind General Marine’s affiliates, these actions do not indicate that the Association exceeded its authority as to General Marine. The only parties that can contest their inclusion in the agreement on that basis are the affiliates of General Marine since the Asso- ciation never had any authority to bargain on the affiliates behalf. Indeed, as a result of the representation proceedings elections were held and another union was established as the proper bargaining agent for workers aboard the affiliates’ vessels. However, this in no way affected the ability of the Association to bargain on behalf of General Marine, a separate entity, as the Association properly did. Therefore, the April 13 repudiation was an ineffective termination of the agreement for collective bargaining purposes and General Marine, as of that point, remained bound by the agreement. In the instant action General Marine was well aware of the Association’s intention to include the “affiliates’ clause” in the agreement, and was given ample opportunity to withdraw from the Asso- ciation prior to completion of the collective bargaining agree- ment but expressly refused to do so. The April 13 Frank leiter after the contract had been agreed upon, was untimely and also ineffective under federal labor law and policies. In construing collective bargaining agreements, it has been established that § 301 of the LMRA is more than a jurisdic- 38a tional statute, and “authorized federal courts to fashion a body of federal laws for the enforcement of these collective bargaining agreements.” Textile Workers Union v. Lincoln Mills, 353 U.S. 448, 451, 77 S.Ct. 912, 915, 1 L.Ed.2d 972; Smith v. Evening News Ass’n, 371 U.S. at 199, 83 S.Ct. at 269. The substantive law to be applied under § 301 is federal which must be fashioned from the policy of the national labor laws. Textile Workers Union v. Lincoln Mills, 353 U.S. at 456, 77 S.Ct. at 917. Here, General Marine’s claims conflict with the rule that absent an impass in negotiations or unusual circumstances, an employer may not unilaterally withdraw from a multiple em- ployer bargaining agreement after negotiations have com- menced for to do so would be an unfair labor practice. NLRB v. Paskesz, 405 F.2d 1201, 1202 (2d Cir. 1969); NLRB v. Sheridan Creations, Inc., 357 F.2d 245 (2d Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 711, 17 L.Ed.2d 544 (1967). Paul v. Lindgren, 375 F.Supp. 843, 851 (N.D.III.1974). General Marine further contends that the contract was not in effect after the repudiation of the contract on April 30, 1976 pursuant to its terms as a consequence of the April 28, 1976 strike of Local 333 members and that it had not received the benefit of the contract. The Trustees assert that General Marine breached the collec- tive bargaining agreement by failing to make the payments required under the contract. General Marine does not deny failing to make the payments but instead contends that there are material issues of disputed fact which indicate that the contract may indeed be invalid and unenforceable. The Trus- tees claim that the strike was in response to unilateral manning changes on the sludge vessels made by General Marine, but that Frank and Union representatives agreed that the contract would remain in effect, that manning changes would be made only after consultation among the parties, and that the ter- mination letter was to be deemed rescinded. General Marine claims that the strike resulted from the payment of wages specified as in the contract and denies an agreement to consult 39a before manning changes were made or to terminate the rescis- sion and claims that the agreement was only to get the workers back on the job to remedy the emergency health situation. Despite these issues relating to the motivation for the strike and the reasons for its termination, there remain no issues of material fact necessary to the resolution here. For the purposes of this motion it will be assumed that the April 30, 1976 termination was not rescinded. Notwithstand- ing, it was not effective. In Lewis v. Benedict Coal Corp., 361 U.S. 459, 80 S.Ct. 489, 4 L.Ed.2d 442 (1959), the Supreme Court addressed the independent nature of labor union welfare funds, and the inability of an employer to assert a unions’ breach of the collective bargaining agreement as a defense to payment due to funds. After indicating that a funds’ rights under a collective bargaining agreement were not typical third party beneficiary rights, the court found as a matter of sub- stantive federal labor law that the parties to the contract must unequivocally express an agreement that a union’s breaches of the agreement will give rise to a defense to the employer’s duty to contribute to the Trustees. This was based on the fact that the Trustees are independent of the union and serve benefi- ciaries who are not necessarily still members of the union and was thus held to promote national labor policies. Thus the union’s wrongful action should not be held against the benefi- ciaries of the trust. Thus the court denied a defense or set-off to payments due under the contract based on the union’s breach of the contract. Similarly in the instant action General Marine’s right to terminate the agreement for an unauthorized strike does not specifically mention the trustees as subject to the right of termination. In this case, as there were Local 333 members continuing to work on General Marine’s barges, the trustees’ rights to funds for these employees should not be divested by a termination as a matter of federal law under § 301. Denying the Trustees’ claims would have the effect of con- doning action thus prohibited by Section 8(d) of the NLRA, the termination of the contract without including adequate notice, offers to meet and confer with the opposition as well as 40a compliance with other provisions and be in direct conflict with national labor law and policy. Although the collective bargain- ing agreement may indicate that the employer has the authority to terminate the agreement if the conditions were as asserted by General Marine, the effect of such termination should be construed in light of the national labor policy and law with which General Marine was quite familiar. 29 U.S.C. § 158(d). As the First Circuit stated: If the continued validity of a collective bargaining agree- ment which is the subject of suit under § 301 depends on the effectiveness of a notice of termination, this must be determined by the federal court upon an application of the rules laid down in § 8(d) of the act... International Brotherhood of Teamsters, Chauffers, Ware- housemen & Helpers, Local Union No. 25 v. W. L. Mead, Inc., 230 F.2d 576, 582 (lst Cir.), cert. dismissed, 352 U.S. 802, 77 S.Ct. 21, 1 L. [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1822%3A1. Public record. Not legal advice.