Opposition Brief — U. A. 198 Health & Welfare, Education & Pension Funds v. Rester Refrigeration Service, Inc.

) |; . Supreme Court, U.S, |

ia BILE ER

(») SEP 19 1906

~ “S—T JOSEP SPARIOL, JR.

Number 86-262 meaty

In Che

Supreme Court of the Hnited States

OCTOBER TERM, 1986

U.A. 198 HEALTH & WELFARE,

EDUCATION & PENSION FUNDS,

Petitioners,

VERSUS

Respondent.

Brief in Opposition to Petition

For Writ of Certiorari to the

United States Court of Appeals

|

|

|

RESTER REFRIGERATION SERVICE, INC.

for the Fifth Circuit

*James H. Gill, Jr.

Daniel K. Rester

CAMP, CARMOUCHE,

BARSH, GRAY,

HOFFMAN & GILL

Sixth Floor

2431 S. Acadian Thruway

P. O. Drawer 4407

Baton Rouge, Louisiana 70821

(504) 928-6800

Attorney for Respondent

*Counsel of Record

i

TABLE OF CONTENTS

Page

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Response to Reasons for Granting the Writ ............ i)

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QUESTION PRESENTED

looes the Federal District Court or the National La-

i lolations Board have primary jurisdiction to deter-

ce issue of the necessity of an employer to continue

) pay into an Employee Benefit Trust Fund after expi-

nol the Collective Bargaining Agreement which had

ously existed between the Employer and the Union,

| importantly, whether or not the discontinuance

uyments by the employer is an issue which ar-

lier the requirements of $8(a)(5) of the National

r Relations Act, as amended, 29 U.S.C. 158(a)(5),

rit an issue to be decided by National Labor Re-

id, or is it a requirement of $8502 and 515 of

l

eo Retirement Income Security Act of 1974, as

lod, 29 U.S.C. $§1132 and 1145, making it an issue

ided by the Federal District Court?

ill

TABLE OF AUTHORITIES

Cases: mage

Carpenters Local Union No. 1846 v. Pratt-

Farnsworth, Inc., 690 F.2d 489, 515-17 n. 11

(5th Cir. 1982), cert. denied, 464 U.S. 932, 104

S.Ct. 335, 78 L.Ed.2d 305 (1983) ................... 17

Cement Masons Health and Welfare, etc., v.

Kirkwood-Bly., 520 F.Supp. 194 (N.D. Calif.

1981) aff'd. 692 F.2d 641 (9th Cir. 1982) ... 7,9, 11

Hinsen v. NLRB, 428 F.2d 133 (8th Cir.

I1.A.M. Nat’l. Pension Fund v. Schulze Tool &

Div. Co., Inc., 564 F.Supp. 1285 (N.D. Cal.

I SRE SI a ake ss oa dvdncedeAh evn scsaceysese Q

Laborers Health & Welfare Fund v. Hess, 594

ee 86. OS OD b ) i)

Laborers Health and Welfare Trust Fund For

Northern California v. Advanced Lightweight

Concrete Company, lnc., 779 F.2d 497 (9th

Va vixkscdehsaceveteevs<es bi, 32, 13, 16, 17

Local Union No. 25, international Brotherhood

, of Teamsters v. New York, New Haven and

Hartford Co., 350 U.S. 155, 160, 76 S.Ct. 227,

dy BP BEAN, BOO CIID) 2... ..00ccccecsecseee. wee

Mill Cabinet Health & Welfare Fund for

Matheson Calif. v. Kitchen Fixtures, lne., (C-

82-0974 SW) (JSB) Unpublished .................... )

Mo-Kan Teamsters Pension Fund v. Botsford

Ready Mix, 605 F.Supp. 1441 (W. Mo.

dade ukascsisvveiectecesectien tm 11, 12, 13, 14

Moldovan v. Great Atlantic and Pac od Tea

Company, Inc., 790 F.2d 894 (3rd Cir. 1986) ... 17

NLRB v. Katz, 369 U.S. 736, 82 S.Ct. 1107, 8

SED occ vccnenvcosesesscicesess 6, 11, 12

Office of Professional Employees Insurance

Trust Fund v. Laborers Funds Administrative

Office of Northern California, Inc., 783 F.2d

de iidsaceseuvineedvacaneens 16, 17

iv

Page

Pattern Makers’ Pension Trust Fund v. Badger

Pattern Works, Inc., 615 F.Supp. 792 (N.D.

Uk: GN ED aveatc a carcgassddoua sede ahaa 15

Peerless Roofing Co. v. NLRB, 641 F.2d 739 (9th

cg NT canoe wiNsas be ncctcn Feta es iiea enn cakss Bde 6

Plumbers and Steamfitters Local 298 v. County

of Door, 359 U.S. 354, 357-58, 79 S.Ct. 844,

SHG, S bs. BALM Gis CERO)! cassncecstescosssccesctsesss 17

Rosen v. Hotel and Restaurant Employees and

Bartenders Union, 637 F.2d 592, 600 (3d. Cir.

1981), cert. denied, 454 U.S. 898, 102 S.Ct._398,

VR Se COED evicvsctecteedibiacivessndesssssss 17

San Diego Building Trades Council v. Garmon,

359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775

(RID <5 \cdicas conincaces etna t eR RURE Chace ckies se. 6

Smith v. Evening News Association, 371 U.S.

195, 83 S.Ct. 267, 9 L.Ed.2d 246 (1962) .......... 7

U.A. 198 Health & Welfare, Education &

Pension Funds v. Rester Refrigeration Service,

Inc., 790 F.2d 423 (5th Cir. 1986) ............. 14,17

U.A. 198 Health & Welfare, Education and

Pension Fund v. Rester Refrigeration Service,

Inc., 612 F.Supp. 1033 (D.C. La. 1985) .......... 14

Statutes:

Sections 502 and 515 of the Employee Retirement

Income Security Act; 29 U.S.C. §§1132 &

DUNO ba secidcuncdesestaabieiionsens 3, 4, 9, 10, 12, 13, 18

Section 4212(a) of the Employee Retirement

Income Security Act; 29 U.S.C. §1392(a) ... 10, 12

Section 301 of the Labor Management Relations

Fa BP I KC.. TED ea vckcosckestccveins 5, 6, 7, 8, 15

Section 302(c)(5) of the Labor Management

Relations Act; 29 U.S.C. 186(¢)(5) ................. 15

Section 8(a)(5) of the National Labor Relations

Act, as amended; 29 U.S.C.

SEN IEUD dxcivedsdcn¥iaccsncccestcas aoe, os, ae, de

Number 86-262

In The

Supreme Court of the United States

OCTOBER TERM, 1986

U.A. 198 HEALTH & WELFARE,

EDUCATION & PENSION FUNDS,

Petitioners,

VERSUS

RESTER REFRIGERATION SERVICE, INC.

Respondent.

Brief in Opposition to Petition

For Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

STATEMENT OF THE CASE

Rester Refrigeration Service, Inc. (RESTER) is a

Baton Rouge, Louisiana based employer. Rester was a

signatory to a collective bargaining agreement with the

United Association Local 198. The collective bargaining

agreement expired on April 30, 1984 and Rester has not

signed a new agreement.

The bargaining agreement, while it was in effect, re-

quired Rester to pay into U.A. Health & Welfare Edu-

cation & Pension Fund periodic payments and contribu-

tions. When the collective bargaining agreement expired

and an impasse in collective bargaining was reached with

Local 198, Rester discontinued making such contribu-

tions.

Rester was current in its schedule of payments

through April 30, 1984. Rester began its own negotia-

tions with Local 198 on April 10, 1984, April 19, 1984 and

April 26, 1984. The negotiations fell into an impasse and

were stopped after the April 26, 1984 meeting. No formal

negotiations have occurred since that date.

This action was then filed by plaintiff, United Asso-

ciation Local 198 Health & Welfare, Education & Pension

Funds, on April 2, 1985. Rester filed a Motion for Sum-

mary Judgment and/or Motion to Dismiss for lack of sub-

ject matter jurisdiction. The District Court granted Res-

ters Motion on the grounds that the complaint failed to

state a claim upon which relief could be granted and held

that no federal court jurisdiction existed for an action of

this kind.

As stated in the Petitioner’s Statement of the Facts,

the District Court relying on Mo-Kan Teamsters Pen-

sion Fund v. Botsford Ready Mix Company, 605 F.Sup.

1441 (W.D. Mo. 1985) felt that the primary issue was

whether or not an impasse was reached between Rester

and the Union. Rester’s failure to prove an impasse would

require Rester to continue to make payments to the fringe

benefit funds as a requirement for the satisfaction of

§$&(a)(5) of the National Labor Relations Act (NLRA). The

District Court felt that under § 8(a)(5) the National Labor

Relations Board (NLRB) had primary jurisdiction to de-

termine all alleged employer unfair trade practices, one

3

of which clearly could be the failure of an employer to pay

into the employee benefits trust fund after the expiration

of the collective bargaining agreement but prior to an im-

passe. The District Court reviewed the requirements of

§§502 and 515 of Employee Retirement Income Security

Act (ERISA), 29 U.S.C. §§1132 and 1145 and determined

that even though these sections provided for federal court

jurisdiction in the collection of contributions from em-

ployers into employee benefit trust funds during the ex-

istence of a collective bargaining agreement that they do

not provide the district court with additional jurisdiction

over issues which arose after the expiration of that

agreement. The District Court concluded, and rightly so,

that collective bargaining agreements cease to exist on

their expiration date and do not survive for the purpose

of giving the District Court jurisdiction under the above

cited ERISA statutes. The District Court further con-

cluded that an attempt to impute definitions supplied for

a different Part of the Employee Retirement Income Se-

curity Act, which definitions might be interpreted to sug-

gest that §§502 and 515 of ERISA were intended to con-

trol the jurisdictional question in issues which arose after

the expiration of the collective bargaining agreement,

would not be sound statutory construction.

The Fifth Circuit Court of Appeals affirmed the Dis-

trict Court decision after reviewing all issues and decided

that the primary concern in this matter would be the is-

sue of whether or not the parties had reached an impasse

and whether or not the employer had committed an un-

fair labor practice. The Court felt that there was no stat-

utory language in ERISA which would compel the court

to replace the primary jurisdiction accorded the NLRB in

4

these issues with Federal Court jurisdiction as provided

by ERISA in §515. The Court of Appeals also felt that you

clearly could not engraph the definitions of one part of the

ERISA statute, which definitions were exclusively for

that Part of the statute, to another Part in order to stretch

the jurisdictional authority of the Federal District Courts

into issues which exclusively involve an alleged unfair la-

bor practice under §8 of the NLRA.

It. is from these decisions that the plaintiff has taken

its Application for Writs to this Honorable Court.

SUMMARY OF ARGUMENT

This suit alleges that Rester failed to make contri-

butions to an Employee Benefit Trust Fund that were re-

quired originally under the terms of an expired collective

bargaining agreement. This alleged failure to make such

contributions, if established by Petitioner as occurring

prior to an impasse, would be an unfair labor practice on

the part of Rester, see 29 U.S.C. 158(a)(5); §8(a)(5)

NLRA. It is clear that all such alleged unfair labor prac-

tices which are arguably subject to the provisions of §8 of

the NILLRA would be referred to the NLRB. However,

Petitioner argues that under this fact situation the al-

leged breach by Rester would fall within the Federa!

Court’s jurisdiction under §§502 and 515 of the Employee

Retirement Income Security Act; 29 U.S.C. 11382 & 1145.

Contrary to Petitioner’s arguments, at least three Fed-

eral District Courts and three different Circuit Courts of

Appeal nave decided that the proper jurisdiction for such

action would lie with the NLRB since the cause of action

arose as a result of the requirements of §8(a)(5) and not

as a result of the “survival” of an expired collective bar-

gaining agreement.

5

RESPONSE TO REASONS FOR

GRANTING THE WRIT

The complaint originally filed in this matter asserted

jurisdiction of the Federal Courts through Section 301 of

the Labor Management Relations Act (LMRA); 29 U.S.C.

185 and under §§502 and 515 of the Employee Retirement

Income Security Act (ERISA); 29 U.S.C. 1132 and 29

U.S.C. 1145. The Petitioner has however, abandoned its *

claim that the Federal Courts have jurisdiction of this

matter under authority pgovided by $301 of the LMRA.

In reviewing the question of jurisdiction between the

Federal Courts and the NLRB, in general, it is clear that

traditionally, the NLRB has maintained jurisdiction over

questions of “unfair labor practices” as set forth under 29

U.S.C. §158; 88 NLRA.

Under Section 29 U.S.C. §158(a)(5); Section 8(a)(5)

NLRA, the overwhelming jurisprudence has been inter-

preted to require that an employer maintain the status

quo of the employees, including the conditions of employ-

ment and fringe benefits, during the collective bargain-

ing process.' See NLRB v. Katz, 369 U.S. 736, 82 S.Ct.

1107, 8 L.Ed.2d 230 (1962). This requirement is manda-

tory even after the expiration of the collective bargaining

agreement, See Hinson v. NLRB, 428 F.2d 133 (8th Cir.

1970).?

' The pertinent part of 29 U.S.C. §158 (a5) states:

“(a) It shall be an unfair labor practice for an employee. . .

(5) to refuse to bargain collectively with the representa-

tives of his employer. . .”

* The Court in Hinson, supra, stated:

“The spirit of the National Labor Relations Act and the more

persuasive authorities stand for the proposition that, even after

LCA “ Pe ee ee eee

6

The Court in Hinson, supra, as well as other courts *

have also said that despite the necessity of maintaining

the status quo during collective bargaining, that the col-

lective bargaining agreement did not survive its expira-

tion date but its provisions survived in limited form only

because of the NLRA. The Court in Hinson, supra,

stated:

“The order does not compel petitioner to agree to any

new or different contract provision; it simply re-

quires him to abide by an obligation once extant by

reason of the binding contract but then continuing on

after its expiration, in limited form, not by reason of

the contract itself but because of the dictates of the

policy embodied in the National Labor Relations

Act.”

In general, therefore, the Courts have stated that

violations of 29 U.S.C. 158 must be heard before the

NLRB and the District Courts would have no jurisdiction

to consider these matters, see San Diego Building Trades

Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.

2d 775 (1959).

An exception to the above, however, developed

through Section 301 LMRA; 29 U.S.C. 185, wherein the

Federal Court was given jurisdiction to enforce the pro-

visions of collective bargaining agreements, in particu-

lar, 29 U.S.C. 185 (a).4 The jurisprudence then began

expiration of a collective bargaining contract, an employer is un-

der an obligation to bargain with the Union before he may per-

missibly make any unilateral change in the terms and conditions

of employment.”

‘ See also, Peerless Roofing Co. v. NLRB, 641 F.2d 739 (9th Cir.,

1981).

‘ Section 301(a) of LMRA 29 U.S.C. 185(a) states in part:

“Suits for violation of contracts between an employer and a la-

bor organization representing employees in an industry affect-

7

turning to dual jurisdiction between Federal Courts and

NLRB in the enforcement of collective bargaining agree-

ments which may also include the determinations of an

unfair labor practice issue. The Courts seemed to imply

that just because there may have been an unfair labor

practice [§&(a)(5)] arising out of the breach of a collective

bargaining agreement that it did not mean that the Fed-

eral Court would not have jurisdiction. The Courts ini-

tially felt that Section 301 LMRA would provide such ju-

risdiction to the Federal Courts despite the possibility of

an unfair labor practice. See Smith v. Evening News As-

sociation, 371 U.S. 195, 88 S.Ct. 267, 9 L.Ed. 2d 246

(1962). Therefore, the conflict arose as to how to handle

the particular fact situation we have in this matter, i.e.,

the possible failure of an employer to maintain the status

quo after the expiration date of a collective bargaining

agreement, which would again bring into conflict an al-

leged unfair labor practice and the enforcement of the

purposes behind the expired collective bargaining agree-

ment.

The first case to squarely face this issue was Cement

Masons Health and Welfare, etc. v. Kirkwood-Bly., 520

F.Supp. 194 (N.D. Calif. 1981), affirmed 692 F.2d 641 (9th

Cir. 1982) wherein the Court stated:

“Defendant argues that any claim plaintiffs have for

trust fund contributions arise by virtue of section

&(a)(5) of the Act. The Garmon doctrine vests pri-

mary jurisdiction of cases arising under the Act in the

ing commerce as defined in this chapter, or between any such

labor organizations, may be brought in any district court of the

United States having jurisdiction of the parties, without respect

to the amount in controversy or without regard to the citizen-

ship of the parties.”

8

N.L.R.B. Thus, defendant urges that we dismiss the

action. Plaintiffs, quoting language similar to what is

quoted above, argue that the contract itself survives

its expiration date. Hence, they argue that this is a

suit under section 301—to enforce a collective bar-

gaining agreement—and is therefore properly in the

district court.

We believe that defendant’s characterization is

correct for several reasons. Most importantly, plain-

tiffs’ suit depends entirely upon the existence of sec-

tion 8(a)(5) which requires the employer to maintain

the status quo during negotiations for a new collec-

tive bargaining agreement. This is obviously done in

reference to the prior agreement, and, therefore, the

collective bargaining agreement can be said to “sur-

vive” its expiration. However, it does so only be-

cause of section 8(a)(5). Plaintiffs cite no case, nor can

we find any, which have permitted district courts to

enforce properly expired collective bargaining

agreements in a section 301 action.

Indeed, extensive research reveals that all cases

establishing the principle that the employer must

continue trust payments even after the expiration of

the agreement arose from N.L.R.B. proceedings.”

This Court put to rest this issue by declaring that the

NLRB would maintain jurisdiction for actions which arose

under this factual situation because it was not a cause of

action which arose under a collective bargaining agree-

ment, as required under Section 301, since the collective

bargaining agreement would not survive its own termi-

nation date. The Court stated that the collective bargain-

ing agreement would only be used to provide the perim-

eters to establish the status quo requirement under

Section 8(a)(5) NLRA.

This decision then brought on new attempts to es-

9

tablish Federal Court jurisdiction under the present fact

situation by using the provisions of §§502 and 515 of the

Employee Retirement Income Security Act (ERISA); 29

U.S.C. 1132 and 29 U.S.C. 1145.° Section 502 provides

Federai Court jurisdiction for an action which arose un-

der §515.

Although in Kirkwood-Bly., Inc., supra, the Court

acknowledged the possible ERISA action under a similar

fact situation it did not decide such an issue. In an early

decision, the Federal Court in /.A.M. Nat'l. Pension

Fund v. Schulze Tool & Div. Co., Inc., 564 F.Supp. 1285

(N.D. Cal. 1983) did decide a case with similar issues in-

volved but there was no jurisdictional questions raised

and therefore, it was not considered.°®

The first case to face this specific issue and relied on

almost exclusively by petitioner is Laborers Health &

Welfare Fund v. Hess, 594 F.Supp. 273 (N.D. Cal. 1984).

This Court specifically set forth two basic propositions on

which it relied on in reaching a decision that there was

Federal Court jurisdiction over this particular fact situ-

ation. The Court felt that (1) the definition of “obligations

° In particularly §515 provides:

“Every employer who is obligated to make contributions to a

multiemployer plan under the terms of the plan or under the

terms of a collectively bargained agreement shall, to the extent

not inconsistent with law, make such contributions in accor-

dance with the terms and conditions of such plan or such agree-

ment.”

° In addition, the unpublished case of Mill Cabinet Health &

Welfare Fund for Matheson Calif. v. Kitchen Fixtures, Inc., (C-82-

0974 SW) (JSB) as cited in Footnote 5 of Laborers Health & Welfare

Fund v. Hess, 594 F.Supp. 273 (N.D. Cal. 1984) decided that the

Federal! Court did not have jurisdiction over a Section 515 allegation

involving an expired collective bargaining agreement, but there also,

the Court gave no authority for its decision.

10

to contribute” as defined in 29 U.S.C. §1392(a) should be

used to define the employers obligation to contribute un-

der §515 and that (2) the use of the phrase in §515“. . .

Under the terms. . .” should require that an obligation

to contribute under the terms of an expired collective

bargaining agreement would also fall under the jurisdic-

tion of the Federal Court.’

’ For clarification the Hess court said in regards to number 1

above:

“Plaintiffs have, however, observed that in the part of ERISA

dealing with employer withdrawals, the term ‘obligation to con-

tribute’ is defined as ‘an obligation to contribute arising. . . (1)

under one or more collective bargaining (or related) agree-

ments, or (2) as a result of a duty under applicable labor-man-

agement relations law.’ 29 U.S.C. §1392(a) (1982) (emphasis

added). From that definition, and from the absence of a defini-

tion of ‘obligation to contribute’ in the subchapter of ERISA in-

cluding section 515, plaintiffs properly conclude that the phrase

‘obligated to make contributions’ in section 515 includes an ob-

ligation to contribute arising under section &(a)(5) of the NLRA.

and in regards to number 2 above:

“But, contrary to plaintiffs’ assertions, that conclusion is not by

itself sufficient to compel the further determination that section

515 applies to employers whose obligations to contribute arises

from section 8(a)(5) of the NLRA. Rather, an examination of the

remainder of the statutory language is necessary to determine

whether it imposes any limitations on the language ‘employer . . .

obligated to make contributions.’ If, for instance, the statute

mandated the payment of contributions by ‘[e]very employer who

is obligated to make contributions under a collective bargaining

agreement,’ it would be clear that an obligation arising as a re-

sult of section 8(a)(5) would not be covered. Examination of the

statute reveals, however, that there is no such limitation. The

statute dictates that ‘[e]very employer who is obligated to make

contributions . . . under the terms of a collectively bargained

agreement shall . . . make such contributions.’ (Emphasis added)

Congress’s decision to speak in terms of ‘obligations under the

terms of a collective bargaining agreement,’ rather that ‘obli-

11

Following the Hess decision, the Courts in the West-

ern District of Missouri, Mo-Kan Teamsters Pension

Fund v. Botsford Ready Mix, 605 F.Supp. 1441 (W.D.

Mo. 1985), and the Ninth Circuit, Laborers Health and

Welfare Trust Fund For Northern California v. Ad-

vanced Lightweight Concrete Co., Inc., 779 ¥.2d 497 (9th

Cir. 1985), both under similar fact situations, issued opin-

ions which contradicted Hess. The Court in Botsford, su-

pra, states after review of the Hess decision, that the op-

erative reason why the Federal Courts should not have

jurisdiction in this matter was the lack of a contract (col-

lective bargaining agreement) once the agreement has

expired, even though there are maintenance of “status

quo” requirements.*

gations under a collective bargaining agreement,’ suggests that

it meant to include obligations arising as a result of section 8(a)(5)

of the NLRA. Cf. Kirkwood-Bly, 520 F.Supp. at 945 (section

8(a)(5) obligation to continue trust fund contributions after ex-

piration of collective bargaining agreement arises under the

terms of the agreement not under the agreement itself).”

* The Botsford Court stated:

“Section 8(a)(5) implicitly requires an employer to maintain the

status quo during negotiations for a new collective bargaining

agreement even though the prior agreement has come to an end.

N.L.R.B. v. Katz, 369 U.S. 736, 743-44, 82 S.Ct. 1107, 111-12,

8 L.Ed.2d 230 (1962). The status quo, of course, will be heavily

dependent on the terms of the prior agreement. Thus it is some-

times said that the terms of the agreement “survive” the expi-

ration of the agreement. See e.g. Cement Masons Health &

Welfare Trust Fund v. Kirkwood-Bly, Inc., 520 F.Supp. 942

(N.D. Cal. 1981). Nonetheless, it is the status quo, and not the

terms of the written contract that must be maintained. Unilat-

eral changes of conditions without prior discussion with the union

are prohibited, not because of any agreement on the employer’s

part, but because to allow such changes would enable an em-

ployer to circumvent the duty to negotiate and frustrate the ob-

12

In addition, the Court, in Advanced, supra, re-

viewed the two main issues presented in the Hess deci-

sion and stated that it felt that the Botsford decision

clearly pointed out that §1392(a) definitions expressly re-

fer only to the withdrawal liability set forth in that Part

of the ERISA statute. The Court further felt that Con-

gress intended the definitions set forth in §1392(a) should

remain with and refer only to withdrawal liability instead

of expending the liability created under §515 and “. . . a

more plausible conclusion is that Congress intended

withdrawal liability to be more broadly based than em-

ployers’ general liability for ERISA violations”. In other

words, Congress’ failure to make it perfectly clear that the

definitions were to be applied to more than one Part of the

statute meant that the more broadly interpreted defini-

tions provided for under withdrawal liability §1392(a)

should not be applied to §515 liability which Part does not

have a similar definition and is obviously intended by

Congress to be more narrowly interpreted.

DORN ee De = ot

The Court in Advanced, supra, further stated in re-

gard to the Hess decision that the use of the phrase “. . .

under the terms. . .” in §515 without any further defi-

nitions obviously meant that Congress intended 8515 li-

ability be less extensive than the withdrawal liability set

forth under §1392(a)(1) under the definitions “. . . obli-

jectives of §8(a)(5). Katz, at 369 U.S. 743, 82 S.Ct. 1111. Once a

union has been offered a chance to negotiate on a mandatory is-

sue, and an impasse is reached, an employer may put into effect

changes which were the subject of negotiation, but which were

not agreed to. When it is considered that one of the terms of the

contract was the expiration date, it is clear that the 8(a)(5) sta-

tus quo requirement exists in spite of and not because of, the lit-

eral terms of the contract.

en

13

gations to contribute . . .”. The Botsford, supra, Court felt

that, “(There is no reason to believe that Congress would

use an ambiguous, metaphysical concept to define an ob-

ligation [in section 515] when it has used a crystal clear

definition elsewhere [in section 1392] in the same act.”.

Finally, the Court in Advanced, supra, commented

on one final portion of the Hess decision wherein that

Court relied heavily upon statements made in hearings by

Congressional sponsors of proposed §515. Petitioner in

this matter also relies heavily on these Congressional

hearings in an effort to interpret the intent behind §515.

The Court, in Advanced, supra, felt that there was no in-

dication existing in the Congressional hearing that indi-

cated that Congress considered the problem of continu-

ing obligations from expired agreements much less that

it had any view on resolving any conflict between §515 and

the primary jurisdiction of the NLRB. In fact, in footnote

12, the Court in Advanced, supra, specifically points out

that under one committee hearing it appears that there

was an attempt to limit the jurisdiction of §515 and in an-

other hearing that opposite view seemed to prevail. See

* Advanced refers to a staff report to the responsible Senate

Committee which states that § 515’s purpose was to avoid “complex

litigation concerning claims and defenses unrelated to the employer’s

promise and the Plan’s entitlement to the contributions.” Senate

Committee on Labor and Human Resources, 96 Cong., 2d Sess. 44

(Comm.Print 1980). Advanced asserts that this demonstrates

Congressional intent to limit § 515 to pure contractual obligations not

obligations continued by the mandates of other statutes. A contrary

interpretation of Congressional intent might be gleaned from a

statement of both sponsors of the bill: “The bill imposes a Federal

statutory duty to contribute on employers that are already obligated

to ma <e contributions to multiemployer plans.” 126 Cong. Rec. 23039

(statement of Rep. Thompson): id. at 23,288 (statement of Sen. Wil-

liams). This statement may suggest that the source of the employer’s

14

also Judge Parker’s comments in U.A. 198 Health & Wel-

fare, Education and Pension Fund v. Rester Refrigera-

tion Service, Inc., 612 F.Supp. 1033 (D.C. La. 1985) re-

garding the Hess decision"® and the comments of Judge

Wisdom in Rester, supra, Footnote 17".

obligation is irrelevant to his duty to contribute.

Both analyses are plausible, especially when the highlighted

phrases are examined out of context. In truth, no conclusion con-

cerning Congressional intent over the availability of § 515 in a situ-

ation such as this could be proper given the absence of any indication

that Congress was aware of the potential for conflict between § 515

and §§ 7 and 8 of the NLRA.

” “This Congress has declared that the definition in Section 1392

is ‘for purposes of this part’. Application of a definition found in one

part of a statute toa different part of the statute, when the Congress

has specifically limited the definition to the one part, is not sound

statutory construction. Laffey v. Northwest Airlines, Inc., 567 F.2d

429 (D.C. Cir. 1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55

L.Ed.2d 792 (1978). Nor can this court discern a difference in the

meaning of an ‘obligation under the terms of an agreement’ and an

‘obligation under an agreement’. Neither phrase incorporates an ‘ob-

ligation imposed by labor-management relations law’ and both are

restricted to obligations arising from the agreement. As noted above,

this court is unconvinced that an agreement which by its own terms

has fully expired can “survive” or create any obligation in the ab-

sence of some such provision in the agreement—in which case it would

not be fully expired.

Without repeating the detailed analysis contained in both judi-

cial opinions, this court sides with the result in Mo-Kan Teamsters

Pension Fund v. Botsford Ready Mix Co., supra. If the Congress

had intended to confer jurisdiction upon the district courts to enforce

payment of all employee fringe benefit contributions whether obli-

gated “under the terms of a collectively bargained agreement” or

“under the provisions of any section of the National Labor Relations

Act,” it would have said so. It did not.”

'' Both sponsors of the bill stated that it “imposes a Federal

Statutory duty to contribute on employers that are already obligated

to make contributions to multiemployer plans”. 126 Cong. Rec. 23039

(statement of Rep. Thompson); id. at 23288 (statement of Sen. Wil-

amet ore

15

Under Part I of Petitioner’s Reasons for Granting of

the Writ, they ask the Court to make one final consider-

ation worthy of the Court’s attention. Petitioner implies

that the fact that the requirements of §302(c)(5) of the

LMRA, which requires that the details of employee ben-

efit trust funds be set forth in separate agreements, might

breathe life into those agreements after the expiration of

the related collective bargaining agreement. There has

been no indication in these proceedings that the em-

ployee benefit trust fund would have survived as a sep-

arate agreement outside the collective bargaining agree-

ment Rester executed. The Court facing this issue in

Pattern Makers’ Pension Trust Fund v. Badger Pattern

Works, Inc., 615 F.Supp. 792 (N.D. Ill. E.D. 1985) stated

that “. . . jurisdiction over suits based on a separate trust

agreement was not proper under §301 of the NLRA be-

cause a trust agreement ‘does not qualify as a contract

between an employer and labor organization under NLRA

§301(a).’”. It is likewise clear in this matter that without

the collective bargaining agreement there would have

been no separate trust agreement in existence and the

trust agreement whether or not it contained the specific

terms of the payments of benefits to the trust, still ex-

pired as far as Rester was concerned upon expiration of

the collective bargaining agreement. See, Office and

liams). The Committee Print states that § 515 is intended to prevent

“complex litigation concerning claims and defenses unrelated to the

employer’s promise and the Plan’s entitlement to the contributions.”

Senate Comm. on Labor and Human Resources, 96th Cong., 2nd

Sess. at 44 (Comm. Print 1980). The statements in the Congressional

Record, taken alone, might be viewed as supporting the Fund’s po-

sition. The statement in the Committee Print, taken alone, might be

viewed as supporting the employer’s position. We decline to attach

great significance to either statement.

16

Professional Employees Insurance Trust Fund v. La-

borers Funds Administrative Office of Northern Califor-

nia, Inc., 783 F.2d 919 (9th Cir. 1986).

Petitioner in Part II of its Reasons for Granting of

the Writ would have this Court believe that the trust and

the trustees would be negligent in their duty by seeking

to enforce whatever remedies it feels it is entitled to be-

fore the NLRB. Petitioner would have this Court believe .

that the NLRB’s procedures are slow, cumbersome, di-

latory and unreceptive to the needs of the trustees. Quite

to the contrary of petitioner’s belief, the Courts have time

and time again made it perfectly clear that it is the ex-

pertise of the NLRB, to determine the key issue in this

matter, i.e. whether or not an impasse has been reached

and whether or not there has been an unfair labor prac-

tice, which are required to provide a fair determination of

the issue. The ultimate decision in this case will be based

on facts and minute details which must be weighed with

the expertise of the NLRB in order to reach a fair and just

decision.

The trustees have every right to seek payment, if

they feel they are entitled, of the contributions by an em-

ployer subsequent to the expiration of a collective bar-

gaining agreement. The Court in Advanced, supra, made

it perfectly clear that there is no bar to the Trust Fund

filing for unfair labor practices, '? nor would the trustees

2 “Denying district court ,urisdiction to the trust funds need not

prejudice their claims against Advanced. There is no bar to the trust

funds’ filing an unfair labor practice charge against Advanced. 29

U.S.C. § 160(b); 29 C.F.R. § 102.9 (‘A charge that any person has

engaged in or is engaging in an unfair labor practice affecting com-

merce may be made by any person.’); see Local Union No. 25, Inter-

national Brotherhood of Teamsters v. New York, New Haven and

A veeencts —ertnarenae

ee Peet rae

17

be breaching their fiduciary duty to the beneficiaries of

the trust by seeking relief under the NLRA through the

NLRB."

Therefore to request that this Court change the tra-

ditional jurisdiction with regard to unfair labor practices

from the NLRB to the District Court based on the al-

leged cumbersome procedures and the potential inequit-

able results which may be derived from use of the NLRB

is totally without merit and would place the responsibil-

ity on the District Court to make decisions in an area

which has been, by legislative design, left to the NLRB.

It is therefore clear that three Circuit Courts, the 9th

Circuit “, the 5th Circuit» and the 3rd Circuit '* have all

Hartford Co., 350 U.S. 155, 160, 76 S.Ct. 227, 230, 100 L.Ed 166

(1956) (railroad may file unfair labor practice charge); Plumbers and

Steamfitters Local 298 v. County of Door, 359 U.S. 354, 357-58, 79

S.Ct. 844, 846, 3 L. Ed.2d 872 (1959) (county may file charge); Car-

penters Locai Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d

489, 515-17 n. 11 (5th Cir. 1982), cert. denied, 464 U.S. 932, 104S.Ct.

335, 78 L. Ed.2d 305 (1983) (‘[A]Jny person, even a stranger to the col-

lective bargaining agreement, can bring unfair labor practice

charges.’)

‘8 “The availability of an NLRB remedy to the trust funds ob-

viates any potential fiduciary liability of the trustees to the fund ben-

eficiaries. caused by the dismissal of the §515 suit. See Rosen v. Hotel

and Restaurant Employees and Bartenders Union, 637 F.2d 592, 600

(3d. Cir. 1981), cert. denied, 454 U.S. 898, 102 S.Ct. 398, 70 L.Ed.2d

213 (1982); Kaufman, 707 F.2d at 416.

4 See, Laborers Health and Welfare Trust Fund For Northern

California v. Advanced Lightweight Concrete Company, Inc., 779

F.2d 497 (9th Cir. 1985) and Office and Professional Employees In-

surance Trust Fund v. Laborers Funds Administrative Office of

Northern California, Inc., 783 F.2d 919 (9th Cir. 1986).

'5 See, U.A. 198 Health & Weifare, Education & Pension Funds

v. Rester Refrigeration Service, Inc., 790 F.2d 423 (5th Cir. 1986).

16 See, Moldovan v. Great Atlantic and Pacific Tea Company,

Inc., 790 F.2d 894 (3rd Cir. 1986).

18

agreed that §515 while giving rise to Federal Court ju-

risdiction on enforcement of the collection of trust fund

payments does so only through the existence of a valid

collective bargaining agreement. The fact that §8(a)(5) of

the NLRA requires that an employer maintain the status

quo after the expiration of a collective bargaining agree-

ment and the fact that the jurisprudence has stated that

payment into a trust fund can be part of that status quo,

does not breathe life back into a “dead” collective bar-

gaining contract. The mere fact that the terms of an ex-

pired collective bargaining agreement may be used as the

perimeters for establishing the status quo, does not pro-

vide a “contract” which is required for the Federal Courts

to have jurisdiction under a $515 action.

19

CONCLUSION

The District Court sid. the Fifth Cireuit Court of

Appeals properly maintained Rester’s Motion to Dismiss

because the action itself properly lies with the National

Labor Relations Board; neither the LMRA nor ERISA,

under the circumstances presented to the Court, gives

rise to federal subject matter jurisdiction. Rester sug-

gests that this Court uphold the correctness of the Dis-

trict Court’s decision and that this writ be denied.

Respectfully submitted:

Daniel K. Rester

2431 S. Acadian Thruway,

6th Floor

P. O. Drawer 4407

Baton Rouge LA 70821-4407

(504) 928-6800

*Counsel of Record

20

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that I have this day served

a copy of the above and foregoing Brief in Opposition to

Petition for Writ of Certiorari on all counsel of record by

placing same in the United States mail, postage prepaid

and properly addressed. Y

BATON ROUG NA, this |

September, 1986. / 4

S___ day of

En:

DANIEL K.‘RESTER

B-8689, 9-86, 50