Opposition Brief — New Bedford Fishermen's Welfare Fund v. Baltic Enterprises, Inc.

Ps Supreme VOUr, Vos .

, EILED ©

NO. 86-1854 JUN 19 par

JOSEPH F. SPANIOL, JR.

CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1986

NEW BEDFORD FISHERMEN'S

WELFARE FUND, ET AL.,

Petitioners,

BALTIC ENTERPRISES, INC., ET AL.,

Respondents

Brief in Opposition to Petition

for a Writ of Certiorari to

the United States Court of

Appeals for the First Circuit

Roger C. Stanford

Counsel of Record

Stanford & Schall

558 Pleasant Street

New Bedford, MA 02740

(617) 994-3393

Counsel for Respondent

—_—— —— — —-——-

TABLE OF CONTENTS

Table of Authorities Cited ii

Counter Statement of Questions

presented 1

Summary of Argument 1

Argument 3

Conclusion 10

TABLE OF AUTHORITIES

Page

Kaiser Stee] Corporation

ve Mullins, 455 U.S. 72,

(1982) 4

Advanced Lightweight Concrets

Coss Ince, 779 F2d 497 (9th

Cir. 1985) 4, 6

MO-KAN Teamsters Pension Fund

v. Botsford Ready Mix Co., 605

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

fo)

NLRB v, Katz, 369 U.S. 736,

745, (1962) 3

Pattern Makers Pension Fund

2 Pp W

615 F. Supp. 792 (N.D. 111 1985) 6

San Diego B

v. Garmon, 359 U.S. 236 (1959)

&

8 H & W

Ed Pensi F

Rester Refrigeration Service,

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

1986) 5

ii

EMENT OF TH T

PRESENTED

I. Whether the District Court has

jurisdiction to hear suits brought by

multiemployer employee benefit funds to

recover contributions pursuant to

Sections 502 and 515 of the Employee

Retirement Incomes Security Act (ERISA)

or whether the District Court must defer

to the National Labor Relations Board's

(NLRB) primary jurisdiction.

SUMMARY OF ARGUMENT

The defendants' Motion to Dismiss

in the District Court was property

granted. The failure ko continue

payments after the collective bargaining

agreement expires may be an unfair labor

practice. However, absent a specific

grant of jurisdiction to the District

Courts, the NLRB has exclusive

jurisdiction to determine what

constitutes an unfair labor practice.

ERISA, sec. 515 29 U.S.C. sec. 1145

provides a specific grant of

jurisdiction to collect delinquent

contributions, but only while the

collective bargaining agreement remains

in force. Subsequent to the expiration

of a collective bargaining agreement,

ERISA is not an exception to the general

rule that Federal Courts will defer to

the Board's determination.

The Respondents Appellees submit

that the First Circuit Court of Appeals

was correct in affirming the granting of

a Motion to Dismiss in the U.S. District

Court for the District of Massachusetts

and the Petition for Writ of Certiorari

should be denied.

ARGUMENT

The Petitioners Appellants filed

suit in the District Court seeking

recovery for unpaid contributions to two

multi-employer funds. The defendants

filed a Motion to Dismiss for lack of

subject matter jurisdiction on the

grounds that this was a matter for

consideration by the National Labor

Relations Board. The Motion was granted

by the District Court and affirmed by

the First Circuit.

The failure to honor the terms of a

collective bargaining agreement after

expiration and bateee an impasse is

reached is ar unfair labor practice.

Once an impasse is reached an employer

may unilaterally implement the best

offer made in negotiations N,L.R.B. Vv.

Eatze. 369 U.S. 736, 745 (1962). The

determination as to whether an unfair

labor practice exists is with the

N.L.R.B., 29 U.S.C. Sec. 158 (a) (1)(5).

The Supreme Court has recognized that

the initial determination of whether an

activity is an unfair labor practice

rests with the Board, and not the

federal Courts. San Diego Building

Trades Council v. Garmon, 359 U.S. 236

(1959), Kaiser Steel Corporation vs

Mullins, 455 U.S. 72, 83 (1982). Thus

unless there is a specific statutory

grant of jurisdiction, such as Section

301 of Labor Management Relations Act,

29 U.S.C. sec. 185, to the Federal

Courts, the Courts must and should defer

to the Board.

The Petitioners-Appellees contend

that ERISA Section 515 constitute such a

specific exception. The Ninth Circuit

in the case of Laborers Health and

Welfare Trust Fund for Northern

California, et, als,» v., Advanced

Lightweight Concrete Co., Inc,, 779 F2d

497 (9 Cir. 1985) Cert. granted,

fet ee , 107 S&S. Ct. 1283, 94 L.

Ed.2d 142 (1987) discussed the language

of this Section at length and concluded

that the language of section 515 does

not constitute a grant of jurisdiction

post expiration of the collective

: bargaining agreement so as to constitute

an exception to the general rule of

deferral to the N.L.R.B. for

determination of unfair labor practices.

The opinion in U.A. 198 Health and

W Educati P F

R R j ti S ic 790

F2d 423 (5th Cir. 1986) considered the

legislative history and concluded that

portions of the legislative history

would support either view of Sec. 515.

To date every reported case except one

that has considered the issue has

ne

concluded that ERISA does not grant

jurisdiction to the Courts post contract

MO-KAN Teamsters Pension Fund vs

Botsford Ready Mix Co., 605 F. Supp.

1441 (W.D. Mo. 1985) and Pattern Makers

Pension Fund v. Badge Pattern Works,

Inc... 615 F. Supp. 792 (N.D. Ill. 1985).

The Respondents~Appellants concede

that the issue in this case is the same

as in Advanced Lightweight Concrete in

which the Supreme Court has already

granted certiorari. However, there are

presently proceedings pending involving

the Petitioners and Respondents before

the National Labor Relations Board First

CIO; Case Nos. 1-CA-23,453, 1-CA-23,588,

Fishermen's Pension Trust: Case No. 1-

CA-23,852; In the Matter of: Seafood

: ae y tle Dediene

Mass., Inc., and Baltic Enterprises,

Inc., d/b/a F/V Baltic and Seafarers

; E Nort)

: ic, Gul W

District, AFL-CIO, Case No. 1-CA-23,914.

Trial has been commenced in these

matters and at some point there will be

a decision by the Board or a settlement

will be reached. These matters include

the issue of Pension and Welfare Fund

contributions the date of any impasse as

well as other issues.

If Section 515 is interpreted to

provide a separate grant of jurisdiction

then Section 505 in addition to a method

independent of the N.L.R.B. to collect

contributions imposes severe sanctions.

Section 505 provides for interest,

payment of the funds‘ attorney's fees,

costs, and a penalty in the form of

double interest. An employer who

believes an impasse is reached may

suffer severe financial consequence if a

determination is later reached that an

impasse was not reached or existed at a

later date. These sanctions were

Clearly aimed at the employer who was

obligated by contract to contribute, but

due to financial problems chose to

ignore this responsibility. Nowhere is

there evidence the Congress intended

these sanctions to be considered in

labor management disputes.

If the Federal Courts do have

Jurisdiction, then; in defense to an

action for post-contract expiration

contributions, an employer will often

raise the existence of an impasse as a

defense. The litigation will then be

more complex than the simple question of

whether payments were made or not made.

The issue of an impasse includes matters

other than the fund payments but

involves a range of other 4nrelated

labor-management issues. As a practical

matter there will often be proceedings

in both the N.L.R.B. and the Courts.

If proceedings were to exist in

both the Courts and the Board, then the

Courts should and would defer to the

specialized competence of the Board for

determination. If this is the case then

the exclusive jurisdiction of the entire

issue should remain with the Board and

not with the Courts.

CONCLUSION

For the foregoing reasons the

petition should be denied.

oem

Respectfully submitted,

Roger C. Stanford,

Counsel of Record

Stanford & Schall

558 Pleasant Street

New Bedford, MA 02740

994-3393

June 17, 1987

10

ST