Petition for Writ of Certiorari — Laborers Pension Trust Fund for Northern California v. Imel
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Supreme Court, U.S.
FILED
MAY 20 1990
90-140 JOSEPH F. SPANIOL, JR
| CLERK
No.
In the Supreme Court
OF THE
United States
OCTOBER TERM, 1990
LABORERS PENSION TRUST FUND
FoR NORTHERN CALIFORNIA,
Petitioner,
VS.
MARION J. IMEL,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Of Counsel: THOMAS E. STANTON
bee (Counsel of Record)
mig “ge ecaamgin 180 Sutter Street, 3rd Floor
en seageag es San Francisco, CA 94104
a ae ee Telephone: (415) 788-3496
San Francisco, CA
Victor J. VAN BOURG
875 Battery Street
San Francisco, CA 94111
Telephone: (415) 864-4000
Counsel for Petitioner
BOWNE OF SAN FRANCISCO. INC. + 190 NINTH ST. + S.F.. CA 94103 + (415) 864-2300
QUESTIONS PRESENTED
1. Is a multiemployer pension fund established pursuant to
the Labor-Management Relations Act, 29, U.S.C. § 186(c) (5),
and covered by the Employee Retirement Income Security Act,
29 U.S.C. § 1000 et seq. an employer of one of its participants
within the meaning of the term “private employer” as used in 38
U.S.C. § 2022?
2. Does a provision of a multiemployer employee pension
benefit plan that limits past service pension credit for periods of
military service to a participant who was employed in a perma-
nent position in work of the type for which past service credit is
granted under the plan immediately prior to such military service
and was reemployed by. his preservice employer within 90 days
after release from active duty, or within 90 days after recovery
from a disability continuing after his release from active duty,
violate the provisions of 38 U.S.C. § 2021?
3. Is an industry composed of employers who contribute to a
multiemployer employee pension beneifit plan the employer of a
participant in the plan within the meaning of the term “private
employer” as used in 38 U.S.C. § 2021*
*The names of all parties to the proceedings in the United
States Court of Appeals for the Ninth Circuit are a follows:
1. Laborers Pension Trust Defendant/Appellant
Fund for
Northern California.
2. Board of Trustees of
the Laborers Pension
Trust Fund for
Northern California
The individual members of the Board are as follows:
Employer Trustees Employee Trustees
Morris K. Daley Thomas S. Clarke
Hans H. Larsen George Evankovich
James W. Lowrie Paul Radford
Clifford Swenson Bill Smith
Anthony Walsh Archie Thomas
George Evankovich has retired and on June 1, 1990, he was
succeeded as a member of the Board by Billy R. Leonard.
3. Marion J. Imel Plaintiff/Appellee
li
TABLE OF CONTENTS
Page
CONS BORON ooo nck cise nee l
pO ETT e ra A 2
SORINNS COUN «6 0 o.s 6 0.40444 444 see 2
Senha 65 G6 GRR 6b nkca dine 2
I. The Nature of Petitioner, its Pension Plan and the
Contested Plan Provision... ......ccescccccsees 2
II. The Pertinent Provisions of the Veteran’s Readjust-
WGN AGE oc kcscduneskesnentaradeeteneeiass +
III. The Application of the Contested Plan Provision to
POOMOOINE,. 56 oak cc i cae ee 6
IV. Analysis of the Decisions Below ............... 8
Reasons for granting the wrt ................. Pe 1]
rn eer RE) ee Oa 17
iii
TABLE OF AUTHORITIES CITED
Cases
Addison v. Holly Hill Fruit Products, 322 U.S. 607, 618, 64
I I OUD cocks ccccccecnnccnscssocses 12
Alessi v. Raybestos—Manhattan, Inc. 451 U.S. 504, 515,
a ee ec acecsbanesecsscees 15
Christner v. Poudre Valley Cooperative Ass’n, 235 F.2d 946
(10th Cir. 1956), affirming 134 F.Supp. 115
ee kb edeseceoeseun 13,17
Diamond v. Chakrabarty, 447 U.S. 303, 317, 100 S.Ct. 2204,
a uv weewecnseucenece 16
Ebert v. Poston, 266 U.S. 548, 554, 45 S.Ct.
a NE 12,17
Fishgold v. Sullivan Corp., 328 U.S. 275, 285-286, 66 S.C..
Te necbewcsbee 12, 14,17
Fort Halifax Packing Co. v. Coyne, 482 U.S. 1, 11, 107 S.Ct.
ee Te ce eu eencebeeueeeaue 16
Potomac Elec. Power Co. v. Director, Etc., 449 U.S. 268,
SG Gee, SU, DEE CEDUOD wc cc cc cecccccccce 16
Smith v. Industrial Employers and Distrib. Assn., 546 F. 2d
314 (9th Cir. 1976), cert. den., 431 U.S. 965, 65 S.Ct.
tea ues adet one h6edeces seen es 8
Tennessee Valley Authority v. Hill, 437 U.S. 153, 194-195,
ee ee MOMS CEDIOD oo ose vccccccnccccus 12,17
iv
TABLE OF AUTHORITIES CITED
Constitution,
Statutes and Legislative History
Page
United States Constitution, Art. I, Sec 1 ............... 12
Be ee EE oo 8655 deed eka enncnesedceseus so. 2
Employee Retirement Income Security Act (ERISA):
Be en SS NE OO cab cricccnsccecceesses 2
SE ee hee ee Leeds. sales casa aa bie hee 15
BG omy FO, er rT rrr rey 15
BNA ERISA—Selected Legislative History 1974-1985, p.
DP AeEREIUle eG uGuueubaddasdenssseseseees 15
Labor-Management Relations Act:
Section 302(c) (5), 29 U.S.C. § 186(c)(5) ........... 2
Universal Training and Service Act, Section9........ 13,17
Veterans Readjustment Act:
Be Gs ME A og oc cc cecsccccsesess 2, 4, 6, 8, 14, 15
FD Ue BINED GEE 66 cas cccdccccsdccncoes 2, 6, 8,9, 14
No.
In the Supreme Court
OF THE
United States
OcTOBER TERM, 1990
LABORERS PENSION TRUST FUND
FOR NORTHERN CALIFORNIA,
Petitioner,
vs.
MARION J. IMEL,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE.NINTH CIRCUIT
Petitioner Laborers Pension Trust Fund for Northern Califor-
nia respectfully prays that a writ of certiorari issue to review the
judgment and opinion of the United States Court of Appeals for
the Ninth Circuit entered in the above-entitled proceeding on
May 22, 1990.
OPINIONS BELOW
The opinion of the Court of Appeals is reported at
F.2d and is printed in Appendix A. The
Memorandum of Opinion and the Judgment of the United States
District Court for the Eastern District of California is unofficially
reported in 10 Employee Benefit Cases 1819 and is printed in
Appendix B.
2
JURISDICTION
The opinion and judgment of the Court of Appeals were filed
and entered on May 22, 1990. This Court has jurisdiction pursu-
ant to § 1254(1) of Title 28 of the United States Code.
STATUTES INVOLVED
This case involves §§ 2021 and 2022 of Title 38, Chapter 43, of
the United States Code (“Veteran's Readjustment Act” or
“VRA”). These statutes are printed in Appendix C.
STATEMENT OF THE CASE
I
THE NATURE OF PETITIONER, ITS PENSION PLAN
AND THE CONTESTED PLAN PROVISION
Petitioner Laborers Pension Trust Fund for Northern Califor-
nia (“Fund”) is a multiemployer pension fund established in
1963 through collective bargaining pursuant to Section
302(c)(5) of the Labor-Management Relations Act, 29 U.S.C.
Section 186(c)(5), under collective bargaining agreements be-
tween two chapters of the Associated General Contractors of
America and the Northern California District Council of Labor-
ers, covering laborers employed in building and construction work
in the 46 Northern Counties of California. Since January |, 1975,
the Fund has been an employee pension benefit plan covered by
the Employee Retirement Income Security Act, 29 U.S.C. Sec-
tion 1001 et seg. (“ERISA”).
When first established in 1963 the Pension Plan maintained by
the Fund provided that a covered employee would receive credit
toward a pension, called “Past Service Credit,” for periods of
actual employment as a laborer in the building and construction
industry in the 46 Northern California Counties area between
August 1, 1937, and August 1, 1962. Since the Fund had not
received any employer contributions with respect to this past
employment, the effect of this provision was that the cost of
providing pensions based on the employment would be paid out of
3
employer contributions generated by the work of covered employ-
ees performed after August |, 1962.
When the Plan was revised to conform with ERISA effective
June 1, 1976, the following paragraph was added by amendment
to the past service credit provision of the Plan:
“A Participant shall also be granted Credited Past Service
for each Plan Credit Year, or portion thereof, of military
service during such period in the Armed Forces of the
United States for the period during which he retained reem-
ployment rights under Federal law, provided the Participant
was employed in a permanent position on work of the type
for which Credited Past Service is granted immediately prior
to such military service and was reemployed by the employer
for whom he was working immediately prior to his entry into
such military service within 90 days after release from active
duty or within 90 days after recovery from a disability
continuing after his release from active duty.”
The amendment was in response to the claim of a participant to
Past Service Credit for the period of his military service in 1961
and 1962. The participant had worked as a laborer for Granite
Construction Company from June, 1958 to September, 1960, and
upon his honorable discharge from military service, had returned
to his laborer position with Granite Construction Company in
October, 1962.
The participant's claim was presented by a letter from a
Compliance Officer of the United States Department of Labor,
Labor Management Services Administration, in which reference
~was made to the Veteran's Reemployment Rights Act (now
termed the Veteran's Readjustment Act) and which then stated:
“Basically, this law requires that an eligible veteran be
reemployed by his preservice employer with such status in his
employment as he would have enjoyed if he had been
continuously employed during his military absence.
“As previously noted, the law in question requires that the
preservice employer, when reemploying the veteran, treat the
4
veteran as if he had been continuously employed during his
military absence.”
The amendment was drafted by the consultant and co-legal
counsel for the Fund at the direction of the Board of Trustees to
provide Plan participants with the nights given returning veterans
by the Veterans’ Reemployment Rights Act, but not to extend the
Past Service Credit liability of the Fund beyond such rights in
order to keep any increase of the unfunded vested liability of the
Fund to a minimum.
THE PERTINENT PROVISIONS OF THE VETERAN'S RE-
ADJUSTMENT ACT
38 U.S.C. Section 2021 provides, in pertinent part, as follows
(App. C):
“(a) In the case of any person who is inducted into the
Armed Forces of the United States under the Military
Selective Service Act (or under any prior or subsequent
corresponding law) for training and service and who leaves a
position (other than a temporary position) in the employ of
an employer in order to perform such training and service,
and...(2) makes application for reemployment within
ninety days after such person is relieved from such training
and service...
“(B) If such position was in the employ of . . . a private
employer, such person shall—
(i) if still qualified to perform the duties of such
position, be restored by such employer or employer's
successor in interest to such position or to a position of
like seniority, status, and pay; or
‘Emphasis is added throughout this petition unless otherwise
indicated.
5
(ii) if not qualified to perform the duties of such
position, by reason of disability sustained during such
service, but qualified to perform the duties of any other
position in the employ of such employer or the em-
ployer’s successor in interest, be offered employment
and, if such person so requests, be employed by such
employer or the employer's successor in interest in such
other position the duties of which such person is quali-
fied to perform as will provide such person /ike seniority,
Status, and pay, or the nearest approximation thereof
consistent with the circumstances in such person’s case.
unless the employer's circumstances have so changed as
to make it impossible or unreasonable to do so...
(b)(1) Any person who is restored to or employed in a
position in accordance with the provisions of clause (A) or
(B) of subsection (a) of this section shall be considered as
having been on furlough or leave of absence during such
person's period of training and service in the Armed Forces,
shall be so restored or reemployed without loss of seniority,
shall be entitled to participate in insurance or other benefits
offered by the employer pursuant to established rules and
practices relating to employees on furlough or leave of
absence in effect with the employer at the time such person
was inducted into such forces, and shall not be discharged
from such position without cause within one year after such
restoration or reemployment.
(2) It is hereby declared to be the sense of the Congress
that any person who is restored to or employed in a position
in accordance with the provisions of clause (A) or (B) or
subsection (a) of this section should be so restored or
reemployed in such manner as to give such person such
status in his employment as he would have enjoyed if such
person had continued in such employment continuously from
the time of such person's entering the Armed Forces until the
time of such person's restoration to such employment, or
reemployment.”
6
38 U.S.C. Section 2022 provides, in pertinent part, as follows
(App. C):
“If any employer, who is a private employer... , fails or
refuses to comply with the provisions of Section 2021 (a),
(b)(1) or (b)(3), or 2024 of this title, the district court of
the United States in any district in which such private
employer maintains a place of business,... shall have the
power, upon the filing of a motion, petition or other appropri-
ate pleading by the person entitled to the benefits of such
provisions, specifically to require such employer to comply
with such provisions and to compensate such person for loss
of wages or benefits suffered by reason of such employer’s
unlawful action... In such action only the employer shall be
deemed a necessary party respondent...”
It is clear from the emphasized portions of Sections 2021 and
2022 that the plain, obvious and rational meaning of the words of
those Sections is that a returning veteran’s reemployment rights
extend only to his preservice employer, with whom the veteran
held an other than temporary position and had a normal em-
ployer-employee relationship before he entered the service and
upon whom the reemployment obligation could reasonably be
imposed, or to the successor in interest of such employer.
Ill
THE APPLICATION OF THE CONTESTED PLAN PROVI-
SION TO RESPONDENT
In June 1951 respondent Imel joined Laborers Local Union
185 (“Union”), a local union affiliated with the Northern Califor-
nia District Council of Laborers. He was dispatched by the Union
to a job for Utah Construction Co. on a dam diversion tunnel
project in Amador County, where he worked above ground
clearing bush. After approximately two weeks he was laid off and
returned to the Union hall, registering on the “out of work” list.
Shortly thereafter he was dispatched to a tunnel job on the same
project to work for Walsh Construction Co. He worked from June
to September 1951, when the job ended.
7
Imel returned to the Union hall and again registered on the
“out of work” list. Within a few days he was dispatched to a job
on the Folsom Dam project, where he worked for Atkinson Co.
doing power house construction excavation. The job site was
flooded in November 1951 and he was laid off. He returned to the
“out of work” list and within two weeks he was dispatched to
work for T.E. Connelly on the Folsom diversion tunnel project.
He worked for almost four months and was laid off, again
returning to the “out of work” list.
Within a week he was dispatched to a job with Atkinson Co. on
the Folsom project, where he worked until laid off in December
1952. He returned to the “out of work” list and in January 1953
he was dispatched to a job with Tarlton Construction Co. on a
diversion tunnel for the Sly Park Dam project at Pollock Pines.
He worked for Tarlton until shortly before March 6, 1953, when
he was drafted into the military service. Tarlton’s tunnel project
lasted from the first part of 1952 to the end of 1953, and Tarlton
has not performed any other work in California prior to or
subsequent to those dates.
Imel was honorably discharged from the military service on
March 4, 1955. He returned to the Union hall and the “out of
work” list and in April 1985, he was dispatched to a brush
clearing job with Utah, Bates and Rogers on a tunnel project near
Oroville. He continued to work as a construction laborer on
projects in Northern California until he retired in 1979. At the
time of his retirement Imel had accumulated 25% years of Past
and Future Credited Service under the Fund’s Plan. Because of
the contested provision of the Plan the Past Credited Service did
not include the period from March 1953 to March 1955, and in
connection with Imel’s retirement application, a Compliance
Officer of the Department of Labor presented a claim for such
Credited Service on his behalf.
The Department of Labor first took the position in support of
Imel’s claim that he had returned to his pre-service employer
because Laborers Local Union 185 was that employer within the
meaning of the Veteran’s Readjustment Act. As the claim
progressed through the Plan’s claim review procedure, however,
various representatives of the Department of Labor identified the
8
pre-service employer as (1) each individual employer in the
Associated General Contractors, (2) the Associated General
Contractors itself, (3) the industry overall and finally (4) the
Fund.
At the completion of the claim review procedure the Board of
Trustees of the Fund at a meeting in December, 1980, denied
Imel’s claim to Credited Past Service for the period of his military
service on the ground that he was not entitled to such Credited
Past Service under the terms of the Plan and that the granting of
such service credit was not required by 38 U.S.C. Section 2021.
The Department of Labor was notified of the Board’s decision and
in November, 1983, the complaint in this action was filed by the
United States Attorney in the United States District Court for the
Eastern District of California. The sole statutory basis for subject
matter jurisdiction alleged in the complaint was 38 U.S.C. Sec-
tion 2022, the Fund was the sole defendant named in the action
and the sole basis alleged for a recovery against the Fund was that
the refusal to count Imel’s period of military service toward his
“credited service” under the Plan constituted a violation of the
Veteran’s Reemployment Rights Act, 38 U.S.C. Section 2021 et
seq.
IV
ANALYSIS OF THE DECISIONS BELOW
In its memorandum of opinion (App. B) the District Court
ruled that it had subject matter jurisdiction under 38 U.S.C.
Section 2022 upon the authority of Smith v. Industrial Employers
and Distrib. Assn. 546 F. 2d 314 (9th Cir. 1976), cert. den., 431
U.S. 965, 65 S.Ct. 2921 (1971), “even though the defendant trust
fund is not the employer” (App. B., p. 7). As to the merits of
Imel’s claim, the court found that “a de facto hiring hall proce-
dure was operated in the Northern California [construction]
industry prior to 1959 and [Imel] was generally required to go
through the union to secure employment in the industry” (ibid, p.
12); that “the true nature of the benefits involved here is to
reward the length of service within the industry itself and not with
any single contractor” (ibid, p. 12); and that “there is a reasona-
ble certainty [Imel’s] pension benefits would have continued to
9
accrue in full had [Imel] not entered military service” (ibid, p.
13). The court concluded that “the industry itself (which is
composed of the employers who make up the trust plan) must be
the focus, rather than a single contractor, when a pension is
pursuant to a multiemployer plan” (ibid, p. 13) and upheld the
Department of Labor’s contention “that when a multi-employer
pension plan is involved, it is the particular industry that must be
treated as the employer rather than the specific contractor” (ibid,
p. 13).
The court ordered that petitioner award Imel past service credit
for the period of his military service and a judgment accordingly
was entered. Petitioner filed a timely appeal to the Court of
Appeals and the Court of Appeals affirmed the judgment by a two
to one vote of the panel.
With regard to the issue of subject matter jurisdiction posed by
the plain words of 38 U.S.C. Section 2022, the majority of the
panel avoided characterizing petitioner as Imel’s “employer” but
concluded (App. A, p. 11):
“In view of the remedial nature of the Act, the Supreme
Court’s teaching that the Act should be given ‘as liberal a
construction for the benefit of the veteran as a harmonious
interplay of the separate provisions permits,’ Fishgold, 328
U.S. at 285, this circuit’s commitment to a liberal interpreta-
tion of the Act consistent with Fishgold, and decisions from
other circuits which have reached the same results, we hold
that the district court had jurisdiction over Imel’s suit against
the Fund.”
As to the issue of “necessary party” also posed by Section 2022,
the majority stated that “the Fund is the only party with a
significant interest in the proceeding” and concluded “that Imel
may maintain his suit against the Fund notwithstanding the
absence of any of imel’s construction contractor employers as a
party to the litigation” (ibid, p. 12).
10
In response to petitioner’s contention that Imel had not re-
turned to his preservice employer the majority said (ibid, p. 13):
“The district court’s focus on the industry as an employing
unit is also supported by section 2021 (a) (B) (ii) of the Act.
That section provides that successors in interest must afford :
a veteran the same nghts as their predecessors. Act,
§ 2021(a)(B) (ii). This language of the Act reflects Con-
gress’ desire for a broad right to reemployment and seniority,
not limited by technical changes in corporate form or reor-
ganization. In the Northern California construction industry,
the multiemployer group is made up of changing employer
members: contractors enter and leave the area and go in and
out of business. Nonetheless, the multi-employer group is a
consistent entity, bound by its collective bargaining agree-
ments with the Union and its participation in the trust which
created the Fund.”
It concluded that “by returning to work in the Northern
California construction industry following his discharge from
military service, Imel returned to the same ‘employer’ for the
purposes of the Act” (ibid, p. 14).
Finally, as to petitioner’s contention that Imel had left a
temporary position to enter military service and therefore did not
have reemployment nights under the plain terms of the Veteran’s
Readjustment Act, the majority said (ibid, pp. 14-15):
“The test for whether a position is other than temporary
and subject to the Act ‘is whether the veteran, prior to his
entry into military service, had a reasonable expectation, in
light of all of the circumstances of his employment, that his
employment would continue for a significant or indefinite
period.’...”
Here, the district court found that Imel ‘had a reasonable
expectation that, but for the brief interruption during which
he served in the military, he would have continued to work in
the [Northern California] construction industry under the
multi-employer pension plan in question and accordingly
would have continued earning pension credits.’ Jme/, mem.
op. at 22. This finding is not clearly erroneous. It establishes
1]
the basis for concluding that Imel’s pre-service employment
was not of a temporary nature.’...”
The dissenting judge was brief and to the point. He said (ibid,
pp. 15-16):
“The majority opinion reaches its result by effectively
stretching the word and the concept ‘employer’ beyond all
recognition, giving it new meaning that no ordinary person
could possibly anticipate or comprehend. All of a sudden,
‘employer’ includes possibly an industry as a whole, a trust
fund, or a union to which Mr. Imel was a member but for
which he never worked. Unions in this circuit, as the Fund in
this case, will certainly be surprised to discover that their
members may be really their employees for certain purposes,
and they will be more than interested to discover that they
may have unexpected financial responsibilities for which no
provisions have been made. We construe statutes, yes, but we
do not redefine words, especially when the redefinition car-
ries important policy implications with it. That is up to the
people who wnite dictionaries or Congress—not judges. The
majority opinion calls this a ‘liberal construction’ of the key
word and the statute: I respectfully see it as verbal anarchy.
= * ad
The Fund argues with vigor that what the majority does
creates a huge financial burden on the Fund for which no
provisions have been made. The majority opinion waives this
off as an ‘economic argument.’ I see it as something a
legislature would want to consider seriously.
Were I a member of Congress, I might find myself very
sympathetic to the majonity’s policy reasons for wanting to
include people like Mr. Imel within the scope of this Act.
But as a judge, I must regrettably tell him he is in the wrong
forum.”
? Emphasis is by the dissent.
12
REASONS FOR GRANTING THE WRIT
The basic reason for granting the writ is that, as succinctly
stated by the dissenting judge, the Court of Appeals reached its
result by “stretching the word and concept ‘employer’ beyond all
recognition, giving it new meaning that no ordinary person would
possibly anticipate or comprehend” (see supra). By so doing the
majority exceeded the limits of the Court’s judicial authority and
violated Section | of Article I of the Constitution vesting all
legislative powers in Congress.
As this Court said in Addison v. Holly Hill Fruit Products, 322
U.S. 607, 618, 64 S.Ct. 1215, 1221 (1944):
“While the judicial function in construing legislation is
not a mechanical process from which judgment is excluded,
it is nevertheless very different from the legislative function.
Construction is not legislation and must avoid ‘that retro-
spective expansion of meaning that properly deserves the
stigma of judicial legislation.‘ Kirschbaum Co. v. Walling,
316 U.S. 517, 522, 62 S.Ct. 1116, 1119, 86 L.Ed. 1638.”
This fundamental constitutional principle has been reiterated
and enforced by this Court in many different contexts, most
recently in Tennessee Valley Authority v. Hill, 437 U.S. 153, 194-
195, 98 S.Ct. 2279, 2301-2302 (1978), and the subsequent
decisions of the Court citing that case. Specifically, insofar as the
principle relates to the construction of the Veteran’s Readjust-
ment Rights Act, the Court has admonished that notwithstanding
the liberal construction to be given legislation benefiting veterans,
“the judicial function to be exercised in construing a statute is
limited to ascertaining the intention therein expressed. A casus
omissus does not justify judicial legislation” (Ebert v. Poston, 266
U.S. 548, 554, 45 S.Ct. 188, 190 (1925)).
The admonition of this Court in the Ebert case was followed by
the Court in Fishgold v. Sullivan Corp., 328 U.S. 275, 66 S.Ct.
1105 (1946), upon which the majority relied so heavily in
construing the term “private employer” as used in the Veteran’s
Readjustment Act. In rejecting the veteran’s argument in
Fishgold that the Act’s guarantee against “discharge” included a
guarantee against “layoff” the Court said that “[w]e would
13
distort the language of these provisions if we read it as granting
the veteran an increase in seniority over what he would have had
if he had never entered the armed services” (328 U.S. pp. 285-
286, 66 S.Ct. at p. 1111).
The admonition was also followed by the Tenth Circuit Court
of Appeals in Christner v. Poudre Valley Cooperative Ass'n, 235
F.2d. 946 (10th Cir. 1956), affirming 134 F.Supp. 115 (D.Colo.
1955). In that case the Court of Appeals affirmed the district
court’s decision that the grant in Subsection (d) of Section 9 of
the Universal Training and Service Act of federal court jurisdic-
tion over claims under Subsections (b) and (c)(1) of that
Section could not be extended to claims arising under Subsection
(g) (3) of the Section. In so doing the Court said (235 F.2d at p.
950):
“Courts should confine themselves to the construction of a
Statute as it is written and not attempt to supply omissions or
Otherwise amend or change the law under the guise of
construction.
The fundamental rule of construction is that the court
shall ascertain and give effect to the intention of the legisla-
ture, as expressed in the statute.
An unambiguous statute should be given effect according
to its plain and obvious meaning.”
The reasons behind this fundamental rule of construction were
explained by the district court in the following terms (134
F.Supp. at p. 122):
“Even though I might believe that Congress, through
inadvertence, failed to afford (g) (3) claimants the benefit of
federal jurisdiction and the aid of the United States attorney,
as provided in subsection (d), / can find no justification for
an attempt by the courts to correct such inadvertence by
doing violence to the plain import of the language used by
Congress.
* * > .
It may be that considerations of public policy would
commend the granting of jurisdiction, or that the exercise of
14
jurisdiction would be consistent with the general plan or
scheme evidenced by Congress. However, unless the statu-
tory grant may be so construed without doing violence to the
plain meaning of the words used, as viewed in the light of
their legislative history and other helps in interpretation, it
would seem beyond the power of a court to pull jurisdiction
out of the air, as it were. A liberal construction of a statute
cannot mean an inaccurate and unjustifiable construction.
Moreover, if my conclusions as to the limitations of subsec-
tion (d) are found ultimately to be correct, prompt recogni-
tion of those limitations would offer a better hope for sound
corrective legislation than apologetic, hesitant and ineffective
acceptance of it as meaning something which it does not say.
It is fundamental that this Court is one of limited jurisdic-
tion and that its jurisdiciton in the particular case must
affirmatively appear if it is to be exercised.”
Notwithstanding the majority’s repeated citation and great
reliance upon this Court’s opinion in the Fishgold case, it made no
pretext of following the Court’s careful analysis in that case of the
language used by Congress in the Act it was construing (328 U.S.
pp. 284-289, 66 S.Ct., pp. 1111-1113). Instead, it distorted the
term “private employer” as used in 38 U.S.C. § 2022 by reading it
to mean the Fund, and then, without acknowledging the inconsis-
tency, distorted the same term as used in 38 U.S.C. § 2021 by
reading it to mean the Northern California construction industry.
The injury done by this “verbal anarchy” does not end with the
imposition upon the Fund of a substantial unanticipated vested
liability for which no provision has been made. A far greater
injury is done to those employers and unions who have striven for
years to provide pension benefits to the employees who perform
the casual labor so much a part of the building and construction
industry. The “industry” identified by the district court and the
Court of Appeals as the “employer” of Imel for the purposes of
the Veteran’s Readjustment Act is “composed of the employers
who make up the plan,” supra, p. 9; that is, the employers who,
through agreements with the Union, maintain the Fund by
making monthly contributions to it.
15
It is these employers—and only these employers—whom the
Court of Appeals has tagged as the “successors in interest” of
Imel’s preservice employers who “must afford a veteran the same
rights as their predecessors”; namely, “a broad right to reemploy-
ment and seniority, not limited by technical changes in corporate
form or reorganization” (supra, p. 10). To compound the injury,
under the holding of the Court of Appeals, a veteran in Imel’s
situation could leave a position that was admittedly casual and
temporary and establish reemployment rights ex post facto by
returning to the Northern California contruction industry long
after the project on which he had been working had been
completed (supra, p. 10).
The employers who contribute to the Fund compete with other
employers—so-called non-union contractors—who are in fact part
of the Northern California construction industry, but who do
nothing to provide pensions to employees who perform casual
labor. The non-union contractors have a built-in competitive
advantage in that their labor costs do not include pension and
other fringe benefit contributions. To add to this advantage, the
disadvantages imposed upon contributing employers by the ill-
defined but costly veteran reemployment obligations legislated by
the decision of the Court of Appeals would have a chilling effect
upon the contributing employers and might well lead to withdraw-
als from participation in the Fund. The very existence of the
decision, unreversed, exposes every contributing employer to the
claims of veterans seeking reemployment in the industry and
Creates a disincentive to continued participation.
Thus, the construction of the term “private employer” as used
in 38 U.S.C. § 2021 as including the “Northern California con-
struction industry composed of the employers who make up the
plan” brings the Veteran’s Readjustment Act into direct conflict
with the statutory purpose of Title IV of ERISA “to encourage
the continuation and maintenance of voluntary private pension
plans for the benefit of their participants,” which was declared by
Congress in 29 U.S.C. § 1347a(1). This was also the purpose of
ERISA generally as explained by its authors in Congressional
debates (Senate debate, July 29, 1980 - Statements by Senators
Harrison A. Williams, Jr. (D-NJ) and Jacob K. Javits (R.NY),
16
reprinted in BNA ERISA: Selected Legislative History 1974-
1985, at p. 115) and is reflected in provisions of that Act designed
to remove or avoid disincentives to such continuation and mainte-
nance (see Alessi v. Raybestos-Manhattan, Inc., 451 U.S. 504,
515, 101 S.Ct. 1895, 1902 (1981); Fort Halifax Packing Co. v.
Coyne, 482 U.S. 1, 11, 107 S.Ct. 2211, 2217 (1987)).
As the dissent points out, what the majority opinion says is
“that as a matter of policy, Mr. Imel and people similarly situated
should also receive the benefits of the Veteran's Keadjustment
Act” (App. A, p. 16).2 When, however the implementation of
that policy comes in conflict with the policy of another equally
important statute, only Congress has the facilities with which to
resolve the conflict. In the words of this Court in Diamond v.
Chakrabarty, 447 U.S. 303, 317, 100 S.Ct. 2204, 2212 (1980):
“What is more important is that we are without compe-
tence to entertain these arguments—cither to brush them
aside as fantasies generated by fear of the unknown, or to act
on them. The choice we are urged to make is a matter of
high policy for resolution within the legislative process after
the kind of investigation, examination, and study that legisla-
tive bodies can provide and courts cannot. That process
involves the balancing of competing values and interests,
which in our democratic system is the business of elected
representatives. Whatever their validity, the contentions now
pressed on us should be addressed to the political branches of
the Government, the Congress and the Executive, and not to
the courts.”
The fact that a statute is to be liberally construed cannot justify a
court in rewriting or ignoring its language (Potomac Elec. Power
Co. v. Director, Etc., 449 U.S. 268, 283-284, 101 S.Ct. 509, 517
(1980)).
The lengths to which the courts below have gone in distorting
the provisons of the Veteran's Readjustment Act to accomodate
the casual nature of employment in the building and construction
industry emphasize the importance of the point made by the
district court in the Christner case, supra pages 13-14; namely,
’ Emphasis is by the dissent.
17
that a prompt and forthright recognition of the limitations of the
existing statute is far more likely to result in sound corrective
legisation than the “verbal anarchy” of construing terms as
meaning something that they do not say. This is particularly so in
this case, where construction of the term “private employer” in
the Veteran’s Readjustment Act as meaning that portion of the
building and construction industry composed of the employers
who contribute to an employee pension benefit plan serves to
discourage the employers from continuing their participation in
the plan.
CONCLUSION
In view of the foregoing points and authorities, we submit that
the Court should grant the petition for writ of certiorari for the
following reasons:
1. The Court of Appeals has rendered a decision in
conflict with the decision of another federal court of appeals
on the same matter, namely, the decision of the Court of
Appeals for the Tenth Circuit in Christner v. Poudre Valley
Cooperative Assn., 235 F.2d 946 (10th Cir. 1956), affg 134
F.Supp. 115 (D. Colo. 1955), that the grant of jurisdiction to
the United States district courts contained in the Universal
Military Training and Service Act, the predecessor of the
Veteran's Readjustment Act, cannot be extended beyond the
plain import of the language used by Congress in that Act.
2. The Court has decided a federal question in a way in
conflict with applicable decisions of the Supreme Court;
namely, that the salutary purpose sought to be achieved by -
veterans’ legislation cannot justify judicial legislation (Elbert
v. Poston, 266 U.S. 548, 554, 45 S.Ct. 188, 190 (1925);
Fishgold v. Sullivan Corp., 328 U.S. 275, 285-286, 66 S.Ct.
1105S, 1111 (1946); compare, Tennessee Valley Authority v.
Hill, 437 U.S. 153, 98 S.Ct. 2279 (1978)).
18
3. The Court has rendered a decision which will impose
a substantial financial burden of an undetermined amount
upon the Fund and the employers who support the Fund, and
purports to impose upon those employers the obligation to
restore a returning veteran to the position he held prior to his
entry into military service or to a position of like seniority,
Status and pay, and to continue him in that position for a
period of one year, unless he is discharged for cause. This
construction of the Veteran’s Readjustment Act is in direct
conflict with the policy underlying enactment of the Em-
ployee Retirement Income Security Act and its amend-
ments, namely, to encourage the continuation and
maintenance of voluntary private pension plans for the bene-
fit of their participants, and presents an important question of
federal law which has not been, but should be, settled by this
Court.
Respectfully submitted,
San Francisco, California
July 19, 1990.
THOMAS E. STANTON
Counsel of Record
Victor J. VAN BourG
Counsel for Petitioner
STANTON, Kay & WATSON
VAN BourG, WEINBERG,
RoGerR & ROSENFELD
Of Counsel
(Appendices A, B and C follow)
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A-1
Appendix A
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 88-15668
D.C. No. CV-83-1406-EJG
Marion J. Imel,
Plaintiff-Appellee,
7;
Laborers Pension Trust Fund for Northern California,
Defendant-Appellant.
[Received May 23, 1990]
OPINION
Appeal from the United States District Court
for the Eastern District of California
Edward J. Garcia, District Judge, Presiding
Argued and Submitted
February 8, 1990—San Francisco, California
Filed May 22, 1990
Before: Herbert Y. C. Choy, David R. Thompson and
Stephen S. Trott, Circuit Judges.
Opinion by Judge Thompson; Dissent by Judge Trott
SUMMARY
Armed Services and Veterans/ Pensions
Affirming a judgment of the district court, the court of appeals
held that a narrow reading of the word “employer” as used in the
Veteran’s Readjustment Act, 38 U.S.C. § 2021 et seq. (1982), is
inconsistent with the statute as a whole.
Appellee Marion Imel worked in the Northern California
construction industry for over twenty-five years. He joined the
Union in 1951 and was dispatched from the Union hiring hall to
A-2
various contractors consistently until his retirement in 1979. His
employment was interrupted for two years by his compulsory
military service during the Korean War. Upon his return, Imel
worked for a contractor covered by the appellant Laborers Pen-
sion Trust Fund for Northern California but not the same con-
tractor he worked for prior to his military service. The Fund
appealed from the district court’s judgment granting Imel pension
credit for the time he spent in service. The Veteran’s Readjust-
ment Act requires that an employee who leaves employment for
compulsory military service and returns to the same employer not
lose his position, seniority, or status because of his military
service.
The Fund argued that the district court did not have jurisdic-
tion because section 2022 of the Act creates a nght of action
against an “employer” and the Fund did not employ Imel.
However, the court agreed with the view taken by the Second
Circuit. A narrow reading of the word “employer” as used in the
Act is inconsistent with the statute as a whole. In view of the
remedial nature of the Act, the Supreme Court’s teaching that
the Act should be given as liberal a construction for the benefit of
the veteran as a harmonious interplay of the separate provisions
permits, the Ninth Circuit’s commitment to a liberal interpreta-
tion of the Act, and decisions from other circuits which have
reached the same result, the court held that the district court had
jurisdiction over Imel’s suit against the Fund.
The Fund also argued that Imel’s suit is fatally flawed because
Imel’s employer is a “necessary party” and no employer was sued.
In this case, the Fund is the only party with a significant interest
in the proceeding, it is the party who will provide any relief, and in
light of the Act’s objectives, it is the only appropriate party for
Imel to hale into court in this litigation.
The Fund argued that even if Imel may maintain his suit, he
still loses because he did not return to work for the same employer
he had worked for immediately prior to entering military service.
The court found that Imel had returned to the appropriate party
since he went through the same Union hiring hall procedure as he
did before his military service and was assigned to a contractor
covered under the pension plan. Imel had no control over where
A-3
he was sent to work. Moreover, tiie district court found that
benefits under the Plan were designed to reward an employee
according to his length of service within the industry and not with
any single contractor. This finding is consistent with the Fund’s
own documentation.
Finally, the Fund argued that Imel failed to meet the Act’s
seniority provision which requires that the returning veteran must
show that he left a position, other than a temporary position, for
military service, contending that Imei’s last employment preced-
ing his military service was only casual and the project he was
working on was of limited duration. The court disagreed, finding
that Imel had a reasonable expectation that, but for the brief
interruption of his military service, he would have continued to
work in the Northern California construction industry under the
multi-employer pension plan in question and accordingly would
have gone on earning pension credits. Imel’s pre-service employ-
ment was not of a temporary nature.
Judge Trott dissented in a separate opinion, stating that the
majority opinion reaches its result by stretching the word and the
concept “employer” beyond all recognition, giving it new meaning
that no ordinary person could possibly anticipate or comprehend.
The majority opinion rewrites the law to achieve a desirable
result.
COUNSEL
1 mas E. Stanton, Stanton, Kay & Watson, San Francisco,
C... »mia for the defendant-appellant.
ark S. Flynn, United States Department of Labor, Washington,
D.C., for the plaintiff-appellee.
OPINION
THOMPSON, Circuit Judge:
The Laborers’ Pension Trust Fund for Northern California
(“Fund”) appeals the district court’s judgment, after a bench
trial, granting Marion J. Imel (“Imel”) pension credit for the
time Imel spent in military service. The Veteran’s Readjustment
A-4
Act (the “Act”)', 38 U.S.C. § 2021 et seq. (1982), requires that
' Section 2021 states in relevant part:
(a) In the case of any person who is inducted inio the Armed
Forces of the United States under the Military Selective Service
Act (or under any prior or subsequert corresponding law) for
training and service and who leaves a position (other than a
temporary position) in the employ of any employer in order to
perform such training and service, and (1) receives a certificate
described in section 9(a) of the Military Selective Service Act
(relating to the satisfactory completion of military service), and
(2) makes application for reemployment within ninety days after
such person is relieved from such training and service or from
hospitalization continuing after discharge for a period of not more
than one year—
(B) if such position was in the employ of a State, or political
subdivision thereof, or a private employer, such person shall—
(i) if still qualified to perform the duties of such position, be
restored by such employer or the employer’s successor in interest to
such position or to a position of like seniority, status, and pay;
unless the employer’s circumstances have so changed as to make it
impossible or unreasonable to do so.
(b)(1) Any person who is restored to or employed in a position
in accordance with the provisions of clause (A) or (B) of subsec-
tion (a) of this section shall be considered as having been on
furlough or leave of absence during such person’s period of training
and service in the Armed Forces, shall be so restored or reemployed
without loss of seniority, shall be entitled to participate in insurance
or other benefits offered by the employer pursuant to established
rules and practices relating to employees on furlough or leave of
absence in effect with the employer at the time such person was
inducted into such forces, and shall not be discharged from such
position without cause within one year after such restoration or
reemployment.
(2) It is hereby declared to be the sense of the Congress that
any person who is restored to or employed in a position in accor-
dance with the provisions of clause (A) or (B) of subsection (a) of
this section should be so restored or reemployed in such manner as
ones a
A-5
an employee who leaves employment for compulsory miitary
service and returns to the same employer not lose his position,
seniority or status because of his military service. The Fund
argues that because it never employed Imel, the district court did
not have jurisdiction under section 2022 which creates jurisdiction
to give such person such status in the person’s employment as the
person would have enjoyed if such person had continued in such
employment continuously from the time of such person’s entering
the Armed Forces until the time of such person’s restoration to
such employment, or reemployment.
Section 2022 states in relevant part:
If any employer, who is a private employer or a State or political
subdivision thereof, fails or refuses to comply with the provisions of
section 2021(a),(b)(1), or (b)(3), or section 2024, the district
court of the United States for any district in which such private
employer maintains a place of business, or in which such State or
political subdivision thereof exercises authority or carries out its
functions, shall have the power, upon the filing of a motion,
petition, or other appropriate pleading by the person entitled to the
benefits of such provisions, specifically to require such employer to
comply with such provisions and to compensate such person for any
loss of wages or benefits suffered by reason of such employer’s
unlawful action. Any such compensation shall be in addition to and
shall not be deemed to diminish any of the benefits provided for in
such provisions. The court shall order speedy hearing in any such
case and shall advance it on the calendar. Upon application to...
such United States attorney or official, if reasonably satisfied that
the person so applying is entitled to such benefits, shall appear and
act as attorney .. . No fees or court costs shall be taxed against any
person who may apply for such benefits. In any such action only the
employer shall be deemed a necessary party respondent.
The Act has been recodified several times: The Selective Training &
Service Act of 1940, ch. 720, § 8(b), 54 Stat. 890, reenacted as The
Military Selective Service Act of 1967, 50 U.S.C. App. § 459 (1970),
reenacted as the Vietnam Era Veterans’ Readjustment Assistance Act
of 1974, 38 U.S.C. § 2021 et seq. See Monroe v. Standard Oil Co., 452
U.S. 549, 554 n.8 (1981); Coffy v. Republic Steel Corp., 447 U.S. 191,
194 n.2 (1980). For clarity, we refer to the most recent codification, as
no relevant changes have been made. Barrett v. Grand Trunk W.R.R.
Co., 581 F.2d 132, 133 n.2 (7th Cir. 1978), cert. denied, 440 U.S. 946
(1979).
A-6
in the district court for suits by a person returning from compul-
sory military service against his previous employer. The Fund also
argues that Imel did not return to his previous employer because,
upon his return from military service, while he returned to work in
the Northern California construction industry, the Union dis-
patched him to work for a different construction company within
that industry. We have jurisdiction under 28 U.S.C. § 1291
(1982) and we affirm.
FACTS
The Fund was established in 1963 by two groups of contractors
(two chapters of the Associated General Contractors of America)
and the Northern California District Council of Laborers
(“Union”). Under the Fund’s pension plan (“Plan”), individual
contractors make contributions for each hour paid and/or worked
by covered employees. To qualify for a pension, the employee
must earn a minimum amount of industry service-year credits.
Credit is given for work done during the years 1937-1962, before
the Fund was created. Credit is earned for each incident of
employment with any covered contractor within the industry,
even though the employment may have been of short duration or
for different contractors. The amount of a covered employee's
retirement pension is based upon the number of credits the
employee has earned.
The Pian was amended by the trustees on October 18, 1977,
retroactive to June 1, 1976, to provide that a person returning
from compulsory military service would receive credit for his
period of military service if he “was employed in a permanent
position... immediately prior to such military service and was
reemployed by the employer for whom he was working immedi-
ately prior to his entry into such military service.” Plan, Article 6,
§ 6.02a.
Imel worked in the Northern California construction industry
for over twenty-five years. He joined the Union in 1951 and was
dispatched from the Union hiring hall to various contractors
consistently until his retirement in 1979. His general pattern was
to work for several weeks, or months, on a project until he was
’
A-7
laid off or until the project was finished, then to be put on the out-
of-work list for a few days (up to one month) until a new project
was available. His employment was interrupted by his compulsory
military service in the Korean War, from March 6, 1953 to March
5, 1955. Upon his return, Imel worked for a contractor covered by
the Fund, but this contractor was not the same contractor he had
worked for immediately prior to his military service.
The district court found that the Union operated a de facto
“hiring hall” for the industry in Northern California during the
relevant period. ‘The Union controlled the dispatch of employees
to the pension-covered jobs throughout the industry. “Use of that
practice essentially guaranteed that as long as plaintiff sought
work by registering at the Union hall he would be dispatched to
jobs covered by the pension plan here in dispute.” Jmel v.
Laborers Pension Trust Fund, No. S-83-1406EJG, mem. op at 13
(E.D. Ca.; Oct. 25, 1988). The Union hiring hall process “was
treated as mandatory for obtaining work.” Jd. at 14. The district
court also found that “there is a reasonable certainty that plain-
tiffs pension benefits would have continued to accrue in full”
absent military service. Jd. at 17.
The district court found that Imel’s position was not temporary,
because he “had a reasonable expectation that, but for the brief
interruption during which he served in the military, he would have
continued to work in [the Northern California construction]
industry under the multi-employer pension plan.” /d. at 22. The
district court gave Imel credit for his two years of military service
in computing his pension benefits. Imel’s future pension payments
were adjusted to reflect this credit, and the fund was required to
pay Imel a lump sum for total back-due benefits, plus prejudg-
ment interest. The Fund appeals.
ANALYSIS
A. Standard of Review
1. General Rule
The interpretation of a statute is a question of law which we
review de novo. See, e.g., Saratoga Sav. & Loan Ass'n v. Federal
A-8
Home Loan Bank Bd., 879 F.2d 689, 691 (9th Cir. 1989)
( National Housing Act of 1934); Batchelor v. Oak Hill Medical
Group, 870 F.2d 1446, 1447 (9th Cir. 1989) (ERISA). Findings
of fact are reviewed under the clearly erroneous standard. Fed. R.
Civ. P. 52(a); Kruso v. International Tel. & Tel. Corp., 872 F.2d
1416, 1421 (9th Cir. 1989).
2. ERISA and Deferential Review
The Fund contends that the district court should have deferred
to the trustee’s interpretation of the Plan. See Malhiot v. Southern
Cal. Retail Clerks Union, 734 F.2d 1133, 1135 (9th Cir. 1984)
(eligibility decisions by trustees not reversed unless “arbitrary,
capricious, made in bad faith, not supported by substantial evi-
dence ...”). As the district court stated, however, the question is
not whether the trustees properly interpreted the Plan, but
whether the Fund is required to provide seniority benefits to Ime!
under the Act. Private parties may not agree to alter statutory
duties. See Fishgold v. Sullivan Drydock & Repair Corp., 328
U.S. 275, 285 (1946). The court makes its own determination
regarding requirements of the Act and will! reverse a trustee's
decision if it is “erroneous on a question of law.” Malhiot, 735
F.2d at 1135.
B. Jurisdiction
The Fund argues that the district court did not have jurisdiction
because section 2022 only creates a nght of action against an
“employer,” and the fund did not employ Imel.
Ime! and the Labor Department contend that the Northern
California construction industry was Imel’s employer. They argue
that because of the circumstances prevalent in that industry, it is
difficult to name one party which served as Imel’s employer in the
literal sense of the word. They assert that Imel had an employer-
type relationship with a number of “employers.” First, they point
out that Imel was paid and supervised by the individual contrac-
tors covered by the Union hiring hall. Second, he was hired by,
directed by, and responsible for reporting to the Union. Third, the
Fund recorded and administered all pension benefits. All three of
these circumstances are traditionally “employer” functions, say
A-9
Imel and the Labor Department, and thus in the Northern
California construction industry, no one entity controls the em-
ployee in all aspects of the employment relationship.
Essentiaiiy, the Fund’s argument is that we ought to give the
word “employer,” as used in the statute, its plain meaning. As the
Second Circuit described this argument in Korea Shipping Corp.
v. New York Shipping Ass'n, 880 F.2d 1531, 1532 (2d Cir. 1989),
the Fund “argue[s] in effect that the [district court’s] wholly
different reading of the word ‘employer’ reinforces the notion that
words don’t mean what they say but only, as Alice tells us, what
we say they mean.” /d. (citing L. CARROLL, ALICE’S AD-
VENTURES IN WONDERLAND (London 1865)). Having
stated the argument, the Second Circuit answered it:
it is the task of judges to start with the language of a statute
and to reach a judgment that applies that language to a
particular set of circumstances in a manner consistent with
the statute’s stated objectives. The fallacy in the [defend-
ants’] argument is their failure to recognize that in constru-
ing a statute, the task of the courts is to interpret the words of
the statute in light of the purposes that animated the
lawmakers in enacting it.
Id. at 1537 (holding that common law or dictionary meaning of
term “employer” is inappropriate in the context of a remedial and
protective statute).
We agree with the view taken by the Second Circuit. A narrow
reading of the word “employer” as used in the Act is inconsistent
with the statute as a whole. The purpose of the Act is to ensure
that the veteran “who was called to the colors not be penalized on
his return by reason of his absence from his civilian job.”
Fishgold, 328 U.S. at 284. The Act is to be liberally construed in
light of this purpose. See Coffy, 447 U.S. at 196; Alabama Power
Co. v. Davis, 431 U.S. 581, 584 (1977); Fishgold, 328 US. at
285; Lang v. Great Falls School Dist. No.1 & A, 842 F.2d 1046,
1048 (9th Cir. 1988); Earls v. Atchison, Topeka & Santa Fe Ry.,
532 F.2d 133, 136 (9th Cir. 1976). Congress has manifested
extreme solicitude for the returning veteran, Carter v. United
States, 407 F.2d 1238, 1251 (D.C. Cir. 1968) (supp. op.), and
A-10
“made clear that claims under the Act are to be governed by
principles of equity.” Lang, 842 F.2d at 1051.
The Supreme Court has instructed us “to construe the separate
provisions of the Act as parts of an organic whole and give each as
liberal a construction for the benefit of the veteran as a harmoni-
ous interplay of the separate provisions permits.” Fishgold, 328
U.S. at 285. Consistent with this teaching, we have taken the
position that we will not “place undue emphasis on the parties’
imprecise ‘labels and definitions’ to define ‘nights guaranteed by
the Act.’ Lang, 842 F.2d at 1050 (quoting Smith v. Industrial
Employers & Distributors Ass'n, 546 F.2d 314, 317 (9th Cir.),
cert. denied, 337 U.S. 939 (1949) (despite generally strict con-
struction of jurisdiction); see also Feore v. North Shore Bus Co.,
161 F.2d 552, 553-54 (2d Cir. 1947) (finding jurisdiction to
award back pay when reinstatement not sought, although the
Statute only provided for such awards “as an incident” to
reinstatement).
Other courts have exercised jurisdiction over a pension fund,
alone, despite the Act's language in section 2021 creating nights
against an “employer,” and despite the reference to “employer” in
the jurisdictional grant of section 2022. See, eg. Voliva v.
Seafarers Int'l Union of N. Am., 680 F. Supp. 216 (E.D. Va.),
aff'd, 858 F.2d 195 (4th Cir. 1988) (all defendants except the
pension plan dismissed early in the case); Akers v. Arnett, 597 F.
Supp. 557 (S.D. Tex. 1983), afd. 748 F.2d 283 (Sth Cir. 1984)
(suit against trustees of longshoremen’s association pension
fund); United States ex rel. Reilly v. New England Teamsters &
Trucking Indus. Pension Fund, 737 F. 2d 1274 (2d Cir. 1984)
(district court held that the pension fund was the employer,
defendant fund did not argue this issue on appeal).
In Grzyb v. The New River co., 793 F.2d 590 (4th Cir. 1986),
the employer was joined as a defendant and then the claim
against it was dismissed because of laches. Despite the lack of the
“employer” as a continuing party, the Grzyb court held that the
pension plan incorrectly denied past military service time credit
and affirmed judgment against the plan alone.
A-ll
In considering the proper application of § 2022, it is impor-
tant to note, first, that there is substantial case law to the
effect that the remedies provided in the Veterans Act are
equitable in nature. Second, there is a strong public policy
against the forfeiture of pension benefits...and turning
specifically to the provisions of the Veterans Act, strong
authority that the Act is to be treated liberally, so as to
benefit tose who have served in the armed forces.
Id. at 592 (citations omitted).
The First Circuit has taken a somewhat hybrid approach to
how the term “employer” should be treated in the Act. In Bunnell
v. New Eng. Teamsters & Trucking Indus. Pension Fund, 655
F.2d 451 (ist Cir. 1981), cert. denied, 455 U.S. 908 (1982), the
district court had held that the fund was the employer for purpose
of the Act, although not in the traditional sense. Bunnell, 486
F.Supp. 714, 718 (D. Mass. 1980). The First Circuit affirmed,
but stated that it was “not concerned” with whether the pension
fund could be defined as an employer. Bunnell, 655 F.2d at 452.
Where, however [the employer] contracted for Fund to
assume obligations for its employees’ past services that
treated returned veterans less favorably than its other em-
ployees, [the employer] directly violated the Act. It must
equally be a violation for Fund to participate, and apply [the
employer's] contributions to inure to the benefit of non-
veteran employees and discriminate against veterans.
Id. The First Circuit had “no difficulty in fashioning this remedy,
or in the concept that suit may be brought directly against the
Fund.” /d. at 453 (citing the Ninth Circuit decision in Smith).
In view of the remedial nature of the Act, the Supreme Court's
teaching that the Act should be given “as liberal a construction
for the benefit of the veteran as a harmonious interplay of the
separate provisions permits,” Fishgold, 328 U.S. at 285, this
circuit's cominitment to a liberal interpretation of the Act consis-
tent with Fishgold, and decisions from other circuits which have
reached the same result, we hold that the district court had
jurisdiction over Imel’s suit against the Fund.
A-12
C. The Employer as a “Necessary Party”
The Fund also argues that Imel’s suit against it is fatally flawed
because Imel’s employer is a “necessary party,” and no employer
was sued.
The last sentence of section 2022 of the Act provides: “In any
such action only the employer shall be deemed a necessary party
respondent.” Act, § 2022. This language was included to simplify
the procedure for veterans asserting claims. Bunnell, 486 F. Supp.
at 720. “If those parties [unions, other employees and other
parties] had been necessary, individual veterans would have been
greatly discouraged from asserting meritorious claims by the
cumbersomeness and expense of litigation.” /d.
Here, the Fund is the only party with a significant interest in
the proceeding, it is the party who will provide any relief, and in
light of the objectives of the Act it is the only appropriate party
for Imel to hale into court in this litigation. See 1963 Fund Plan,
Art. VII, § 1 (“no Individual Employer has any liability, directly
or indirectly, to provide the benefits established by this Plan
beyond the obligation of the Individual Employer to make contri-
butions as stipulated in the Collective Bargaining Agreement”).
To mechanically require the addition of individual construction
industry contractors for whom Imel worked “would be, in many
cases, to convert what was intended as a favor into a burden.”
Tsang. 173 F.2d at 206 (italics deleted) (quoting Ames v.
Kansas, 111 U.S. 449, 464 (1884)). “The remedy was intended
to be simple and prompt.” United States ex rel. Deavers v.
Missouri, K. & T.R. Co. 171 F.2d 961, 963 (Sth Cir.), cert.
denied, 337 U.S. 958 (1949); see Donner v. Levine, 232 F.2d 185,
187 (2d Cir. 1956).
We conclude that Imel may maintain his suit against the Fund
notwithstanding the absence of any of Imel’s construction con-
tractor employers as a party in the litigation.
D. Imel's Return to Employment
The Fund argues that even if Imel may maintain his suit
against the Fund and may do so without including any construc-
tion contractor employer as a defendant, he still loses because he
A-13
did not return to work for the same construction contractor he had
worked for immediately prior to entering military service. We
disagree, Imel returned to the appropriate party—he went
through the same Union hiring hall’ procedure as he did before
his military service and was assigned to a contractor later covered
under the pension plan for seniority credit. Imel had no control
over where he was sent to work. Moreover, the district court
found that benefits under the Plan were designed to reward an
employee according to his length of service within the industry
itself and not with any single contractor. This finding is consistent
with the Fund's own documentation. The 1963 Fund Plan specifi-
cally provides: “During the periods between August |, 1937 and
August 1, 1962, an Employee shall be entitled to Past Service
Credit for each Plan year, or a portion thereof, he was employed
in the Building and Construction Industry.” 1963 Fund Plan, Art.
IV, § 2(a).
The district court’s focus on the industry as an employing unit
is also supported by section 2021(a)(B)(ii) of the Act. That
section provides that successors in the interest must afford a
veteran the same rights as their predecessors. Act,
§ 2021 (a) (B) (iii). This language of the Act reflects Congress’
desire for a broad right to reemployment and seniority, not limited
by technical changes in corporate form or reorganization. In the
Northern California construction industry, the multi-employer
group is made up of changing employer members: contractors
enter and leave the area and go in and out of business. Nonethe-
less, the multi-employer group is a consistent entity, bound by its
collective bargaining agreements with the Union and its participa-
tion in the trust which created the Fund.
The Fund argues that the district court’s decision creates a
huge financial burden on the Fund and the construction industry
because it requires that pension credits be given to all persons
returning from compulsory military service who return to the
Northern California construction industry, without regard to
whether they return to the same employer for whom they worked
immediately preceding their military service. We reject this
* The Fund does not dispute the district court's finding of a hiring hall.
A-14
ecnonomic argument. The Act’s “very important but limited
purpose is to assure that those changes and advancements in
status that would necessarily have occurred simply by virtue of
continued employment will not be denied the veteran because of
his absence in the military service.” McKinney v. Missouri-Kan.
Tex. R.R. Co., 357 U.S. 265, 272 (1958). As the district court
found, Imel had been continually employed in the construction
industry at the time he was called to military service. had it not
been for military service, he would have continued in that em-
ployment, and indeed he returned to that employment upon his
military discharge. Had it not been for his military service, Imel
would have received seniority credit which others who continued
their employment in the Northern California construction indus-
try received. The district court’s holding, which we affirm, may
increase the financial burden upon the Fund, and as a result, the
burden upon the Northern California construction industry. But
this result is compelled by the Act. Imel’s nghts as a returning
serviceman may not be subordinated to the Fund’s and the
construction industry’s financial interests.
We conclude that by returning to work in the Northern
California construction industry following his discharge from
military service, Imel returned to the same “employer” for
purposes of the Act.
E. The Employment Position Imel Left
Finally, the Fund argues that Imel failed to satisfy the require-
ment of section 2021(a) of the Act which provides that in order
to be protected by the Act’s seniority provisions, the returning
veteran must show that he left a position, other than a temporary
position, for military service. The Fund points out that Imel’s
employment by his last construction contractor preceding his
military service was only casual, and the project he was working
on for that contractor was of only limited duration. Thus, it is
contended, Imel held only a temporary position when he was
called into the service. We disagree.
Che test for whether a position is other than temporary and
subject to the Act “is whether the veteran, prior to his entry into
military service, had a reasonable expectation, in light of all of the
circumstances of his employment, that his employment would
A-15
continue for a significant or indefinite period.” Stevens v. Tennes-
see Valley Auth., 687 F.2d 158, 161 (6th Cir. 1982). Thus, for
example, a seasonal employee may have a reasonable expectation
of reemployment on the same seasonal terms. See Stevens, 687
F.2d at 162; United States v. North Am. Creameries, Inc., 70 F.
Supp. 36, 38 (d. S.D. 1947).
Here, the district court found that Imel “had a reasonable
expectation that, but for the brief interruption during which he
served in the military, he would have continued to work in the
[Northern California] construction industry under the multi-
employer pension plan in question and accordingly would have
continued earning pension credits.” Jme/, mem. op. at 22. This
finding is not clearly erroneous.’ It establishes the basis for
concluding that Imel’s pre-service employment was not of a
temporary nature. His employment was in the Northern Califor-
nia construction industry working for construction contractors in
the multi-employer group; and he was continuously so employed
for more than twenty-five years, except for the two years he spent
in military service during the Korean War.
The district court’s judgment is AFFIRMED.
TROOT, Circuit Judge, dissenting:
The majority opinion reaches its result by effectively stretching
the word and the concept “employer” beyond all recognition,
giving it new meaning that no ordinary person could possibly
* The district court’s finding is also supported by Imel’s accumulation
of preferential hiring mghts for his work in the Northern California
construction industry, rights which he had accumulated preceding his
military service.
The accumulation of preferential hiring rights makes the position
non-temporary by investing it with an expectation of reemployment.
...In fact, the prior accumulation of any seniority or length of
service benefit which would otherwise be protected by the Act,
[cites], is itself evidence that the returning veteran held something
other than a temporary position. The accumulation of seniority-
related benefits would not normally be a characteristic of a tempo-
rary position, as that term is used in the Act, i.e, a “casual”
position.
Stevens, 687 F.2d at 162.
A-16
anticipate or comprehend. All of a sudden, “employer” includes
possibly an industry as a whole, a trust fund, or a union of which
Mr. Imel was a member but for which he never worked. Unions
in this circuit, as the Fund in this case, will certainly be surprised
to discover that their members may be really their employees for
certain purposes, and they will be more than interested to discover
that they may have unexpected financial responsibilities for which
no provisions have been made. I find the Second Circuit’s answer
to the “Alice in Wonderland” indictment of this type of abuse of
the English language and the plain meaning of words to be
unpersuasive. We construe statutes, yes, but we do not redefine
words, especially when the redefinition carries important policy
implications with it. That is up to the people who write dictiona-
ries or Congress—not judges. The majority opinion calls this a
“liberal construction” of the key word and the statute: I respect-
fully see it as verbal anarchy.
The majority opinion rewrites the law to achieve a desirable
result. What it says is that as a matter of policy, Mr. Imel and
people similarly situated should also receive the benefits of the
Veteran’s Readjustment act. Maybe so, but if we are to respect
the concept of separation of powers and the prerogative of the
legislature, that call should be made by Congress. What we
believe Congress would have done if they had confronted this
policy issue is irrelevant. This is not a case where we are called on
to iron out fuzzy language. What is at stake is what the judiciary
sees as the limits of its authority.
The Fund argues with vigor that what the majority does
creates a huge financial burden on the Fund for which no
provisions have been made. The majority opinion waves this off as
an “economic argument.” I see it as something a legislature
would want to consider seriously.
Were I a member of Congress, I might find myself very
sympathetic to the majority’s policy reasons for wanting to in-
clude people like Mr. Imel within the scope of this Act. But as a
judge, I must regrettably tell him he is in the wrong forum.
I would dismiss this case for lack of jurisdiction under 38
U.S.C. § 2022.
I dissent.
B-|
Appendix B
In the United States District Court for the
Eastern District of California
Civ. No. S-83-1406 EJG
Marion J. Imel,
Plaintiff,
Wa
Laborers Pension Trust Fund of Northern California,
Defendants.
[ Filed Oct. 25, 1988]
MEMORANDUM OF OPINION
This matter came before the court for trial on July 27 and 28,
1987. Norman Nayfach appeared for plaintiff. Thomas Stanton
appeared for defendant. The matter proceeded as a court tnal
without a jury. At the close of testimony, a post-trial briefing
schedule was established. Trial briefing has been completed and
the matter stands submitted. The court has considered the pre-
and post-trial briefs, the testimony and exhibits from trial, as well
as the reporter’s transcript of deposition testimony, and the court
now enters the following ‘findings and conclusions pursuant to
Fed.R.Civ.P. 52.
This case presents the narrow question of whether plaintiff is
entitled to a recalculation of his pension benefit (which is admin-
istered by defendant) so as to credit him for his military service
from March 6, 1953 to March 4, 1955.' However, this narrow
question turns on the broader issue of whether it is a violation of
38 U.S.C. § 2021 [Veterans Reemployment Act] for a multi-
employer pension plan such as defendant to allow credit for
military service only to veterans who return to work for the exact
same company (or business entity) for which the veteran worked
immediately prior to the military service, and not to veterans who
' As of the time of trial, such a recomputation would raise his monthly
benefit from approximately $825 to $890—for a difference of $65 per
month.
B-2
return to another employer covered by that same pension plan. As
will be seen, plaintiff contends that when a multi-employer
pension plan is involved, it is the particular industry that must be
treated as the “employer” rather than the specific contractor.
Thus, says plaintiff, it is a violation of the Act not to award
military service credits to a veteran who has returned to a job
within the particular industry specifically covered by the multi-
employer pension plan. Defendant, however, concludes that there
is no violation of § 2021 because the defendant trust fund is not
the “employer” of plaintiff within the meaning of § 2021. Defen-
dant also asserts that the military service credit provision of the
Act applies only when the veteran returns to work for the same
contractor, and that the element of a multi-employer pension plan
changes nothing in that regard.
The Court has jurisdiction over this dispute pursuant to 38
U.S.C. § 2022 and 28 U.S.C. § 1331.
Background of the Plan
The defendant is a multi-employer pension trust fund estab-
lished in 1963 by two collective bargaining contracts pursuant to
29 U.S.C. § 186(c)(S). The contracts involved two groups of
employers (i.e., two chapters of the Associated General Contrac-
tors of America) and the Northern California District Council of
Laborers. These two contracts are referred to as the “Laborers 46
Northern California Counties’ Master Agreement” and the “La-
borers 46 Northern Counties’ Tunnel Master Agreement.” The
latter pertains to employees who work underground or in and
around tunnels, etc. Under the pension plan, employers make
contributions for each hour paid and/or worked by covered
employees. Since the enactment of the Employee Retirement
Income Security Act of 1974 [ERISA], the plan has been
governed by 29 U.S.C. § 1001 et seq.
To qualify for a pension, an employee must earn a certain
minimum amount of industry service-year credits. A service-year
credit is earned by working in covered employment for at least
1,000 hours in a given year. Where service in a year is less than
1,000 hours, the service is prorated and credited in one-quarter
B-3
increments for each 250 hours worked. Once an employee has
worked over 1,000 hours in a year, no further service credit is
given for that year.
The general idea is for the employee to build up enough service
credits within the industry over the years to be able to qualify for
a pension. Additionally, once the minimum number of credits is
earned, the total number of credits affects the amount of the
pension benefits. As noted above, the plan became effective in
1963, but contributions commenced on August 1, 1962. Service in
the specified industry prior to August 1, 1962 is covered and is
referred to as “past service credit.” Covered service after that date
is referred to as “future service.” For both, the same hourly credit
formula applies (i.e., 1,000 hours = one year of credit, 250 hours
= 4 of a year of credit).
Under the 63 plan, an employee qualified for a so-called
“normal” pension by attaining age 65, acquiring 20 years of
credited service, and working at least 500 hours in covered
employment after August 1, 1962. That normal pension resulted
in a benefit of $55 per month. Vesting occurred upon 15 years of
service and attainment of age SO. In 1972, the age limit on vesting
was eliminated and in 1973 the number of years to vest was
dropped to 10. On October 18, 1977, the plan was amended
retroactively to June 1, 1976 to provids that a returning veteran
wuuld receive credit for his period of military service if he “was
employed in a permanent position... immediately prior to such
military service and was reemployed by the employer for whom
he was working immediately prior to his entry into such military
service.” (Plan, Article 6, § 6.02a).
Plaintiff's 25-year-plus career in covered industry employment
was interrupted when he was inducted into active military duty
during the Korean war [March 6, 1953 to discharge date of
March 4, 195]. Upon discharge, plaintiff returned to the specific
industry covered by the pension plan, however, defendant has not
credited plaintiff with his military service in the calculation of
plaintiff's benefits.
B-4
PERTINENT STATUTORY PROVISIONS
Section 2021 of the Veterans Reemployment Rights Act
(“VRRA” or “the Act”) provides in pertinent part:
“(a) In the case of any person who is inducted into the
Armed Forces of the United States under the Military
Selective Service Act... for training and service and who
leaves a position (other than a temporary position) in the
employ of any employer in order to perform such training
and service, and (1) receives a certificate described in
Section 9(a) of the Military Selective Service Act (relating
to the satisfactory completion of military service), and
(2) makes application for reemployment within ninety days
after such person is relieved from such training and service or
from hospitalization continuing after discharge for a period
of not more than one year—
see ¢ &
“(B) ...such person shall—
(i) if still qualified to perform the duties of such posi-
tion, be restored by such employer or his successor in
interest to such position or to a position of like seniority
status, and pay;...
(b)(1) Any person who is restored... shall be considered
as having been on furlough or leave of absence during such
person’s period of training and service in the Armed Forces,
shall be so restored or reemployed without loss of seniority,
shall be entitled to participate in insurance or other benefits
offered by the employer pursuant to established rules and
practices relating to employees on furlough or leave of
absence in effect with the employer at the time such person
was inducted into such forces, and shall not be discharged
from such position without cause within one year after such
restoration or reemployment.
(2) It is hereby declared to be the sense of the Congress
that any person who is restored to or employed in a position
in accordance with the provisions of clause (A) or (B) of
subsection (a) of this section should be restored or reem-
B-5
ployed in such manner as to give such person such status in
his employment as he would have enjoyed if such person had
continued in such employment continuously from the time of
such person’s entering the Armed Forces until the time of
such person’s restoration to such employment, or
reemployment.”
38 U.S.C. § 2021.
Plaintiffs Employment Record
Plaintiff joined the subject Union in June 1951 and was
dispatched to the Utah Construction Co. to work on the Bear
River Dam diversion tunnel project in Amador County. (he
worked above ground—clearing brush, etc.) After approximately
two weeks he was laid off and registered on the “out-or-work” list
at the Union hall. Shortly thereafter he was dispatched to a tunnel
job working for Walsh Construction Co.—also on the same dam
project. He worked at this job from June 195! to September 1951
when the job ended. Plaintiff was again placed on the “out-of-
work” list at the Sacramento hall. The Folsom Dam project was
Starting up about that same time. Within a few days of being
returned to the list, plaintiff was dispatched to a job at the Folsom
site to work for the Atkinson Co. doing power house construction
excavation work. That job site was flooded in 1951, and plaintiff
was consequently laid off. His narne was returned to the “out-of-
work” list and two weeks later he was dispatched to work for T.E.
Connelly on the Folsom diversion tunnel where he was employed
for about four neyet’s and then laid off. Once more he was
returned to the “out-of-work” list and within a week was dis-
patched back to work for Atkinson, where he worked until
November 1952. He was again laid off in approximately Decem-
ber 1952, and then returned to the “out-of-work” list. In January
1953, he was dispatched to another job working for Tarlton
Construction. This time, he worked on a diversion tunnel for the
Sly Park Dam project in Pollock Pines.
On .*» ch 6, 1953, while working for Tarlton, plaintiff was
drafted into the military. He served until March 4, 1955 and was
honorably discharged. However, the Tarlton work on Sly Park
B-6
project had ended in late 1953. Thus, plaintiff reported back to
the union hall and shortly thereafter (i.e., April 1955) he was
dispatched to a brush clearing job with the Utah, Bates and
Rogers Co. working on a tunnel project at Oroville, California.
Upon returning to the pension covered industry following his
military service, plaintiff resumed the same pattern of lay offs and
subsequent union dispatches to new projects. That pattern contin-
ued with plaintiff working as a laborer in the pension covered
industry in Northern California doing primarily outside or tunnel
labor on dam projects until his retirement in January 1979.
Throughout that period, plaintiff made contributions to the sub-
ject multi-employer retirement plan. For reasons discussed below,
the court finds that but for plaintiff's military service he undoubt-
edly would have continued with that pattern by working in the
same pension covered employment from March 6, 1953 to
March 4, 1955.
Subject Matter Jurisdiction Under The
Veteran’s Reemployment Rights Act
Plaintiff relies on 38 U.S.C. § 2022 to invoke the jurisdiction of
this court. That section confers on the United States District
Courts the jurisdiction and power to order compliance by any
employer with § 2921 (a), (b)(1) or (b) (3), or § 2024 of Title 38
U.S.C. Defendant asserts that it is not an “employer” and thus
there is no jurisdiction under § 2022. Defendant places emphasis
on the word “employer” in § 2022 and argues that no jurisdiction
is conferred where the defendant is a pension trust fund and not
an “employer.” However, the court’s jurisdiction over this matter
cannot be seriously disputed. Smith v. Industrial Employers and
Distrib. Ass'n, 546 F.2d 314 (9th Cir. 1976), cert. denied, 431
U.S. 965, 96 S.Ct. 2921 (1977) specifically held a union desig-
nated trust fund liable under § 2021 (b) (1) for failure to credit an
employee with time spent in the Army following an induction in
1942. Although subject matter jurisdiction under § 2022 was not
contested in Smith, the Ninth Circuit couid not have affirmed the
District Court’s judgment against the fund without concluding
that there was subject matter jurisdiction under § 2022. Thus,
Smith necessarily decided this question and is controlling here.
es
B-7
Moreover, the First Circuit in Bunnell v. New England Teamsters
and Trucking Fund, 655 F.2d 451 (1st Cir. 1981), cert. denied,
455 U.S. 908, 102 S.Ct. 1253 (1982) dealt with a specific
challenge to subject matter jurisdiction under § 2022 and, citing
the Ninth Circuit’s ruling in Smith, squarely held that suit may be
brought directly against the fund. Clearly, this court has jurisdic-
tion even though the defendant trust fund is not the employer.
ERISA and De Novo Standard
Defendant further asserts that this court must defer to defen-
dant’s interpretation of the plan provisions. A final decision by the
Board of Trustees was rendered on plaintiff's military service on
December 9, 1980 when it ruled that plaintiff was not entitled to
military service credits because he did not return to work for
Tarlton. When a pension trust fund decision is challenged under
the Employee Retirement Income Security Act, 29 U.S.C.
§ 1001, et seg. [ERISA], as to the funds interpretation of the
terms of the pension plan, that decision “will not be reversed by
the courts unless [it is] arbitrary, capricious, made in bad faith,
not supported by substantial evidence, or erroneous on a question
of law.” Malhiot v. Southern California Retail Clerks Union, 735
F.2d 1133 (9th Cir. 1984), cert. denied, 469 U.S. 1189, 105 S.Ct.
959 (1985). Here, however, plaintiff does not contest defendant's
interpretation of the terms of the plan. Rather, plaintiff asserts
that the failure to include military service credit in the calculation
of his pension under this multi-employer pension plan violates 38
U.S.C. § 2021. Defendant’s interpretation of the terms of the plan
is undisputed and irrelevant. Moreover, defendant’s interpretation
of the law (i.e., 38 U.S.C. § 2021) is entitled to no deference, and
the court must make its own legal determination.
Furthermore, the discussion in defendant’s trial brief on the
question of military service credit in the context of ERISA is
inapposite. Defendant argues, in effect, that the plan provisions
challenged here do not violate § 2021 because they do not violate
ERISA. Defendant seems to be suggesting that if § 2021 was
violated, the parties agreed to do so, and that such an agreement
does not violate ERISA. Defendant argues that the plan adminis-
trators must administer the benefits in accordance with the
B-8
documents and instruments governing the plan insofar as they are
consistent with ERISA, i.e., 29 U.S.C. § 1104(a)(1)(D). The
only plan provision regarding credit for military service is § 6.02.
It specifically requires that the veteran be “reemployed, by the
empioyer for whom he was working immediately prior to his entry
into such military service.” Plaintiff was not so reemployed, and
therefore, says defendant, the plan provision and ERISA have
been satisfied.
However, the question here is whether the Veterans Reemploy-
ment Act, not ERISA, has been violated. Defendant's argument
ignores the point that whatever a multi-employer bargaining unit
and a union may agree to, they cannot agree to alter what the
Congress has required by statute as non-negotiable. Thus, the
plan’s obligations regarding military service credits are controlled
by 38 U.S.C. § 2021 and the case authority which make it clear
that § 2021 protection applies to pension benefits and trust fund
plans. If the contracting parties wish to create nights or protec-
tions that exceed that mandated by the Congress, they may do so.
However, they may not, by contract, fail to provide the protec-
tions Congress requires. Thus, the court must proceed to deter-
mine whether it is a violation of 38 U.S.C. § 2021 to refuse
plaintiff credit in his pension computation for his military service.
Credit for Military Service
The language of § 2021 was described by the United States
Supreme Court in Coffy v. Republic Steel Corp., 447 U.S. 191,
i00 S.Ct. 2100 (1980) to “mean that the returning veteran ‘does
not step back on the seniority escalator at the point he stepped off.
He steps back on at the precise point he would have occupied had
he kept his position continuously during the war’.” /d. at 196, 100
S.Ct. at 2104. (citation omitted) Coffy noted that the Act
requires that a person covered by § 2021 be given “ ‘such status in
the person's employment as the person would have enjoyed if
such person had continued in such employment continuously’
during the period of military service. § 2021(b)(2).” Jd. The
court also emphasized that “the statute is to be liberally construed
for the benefit of the returning veteran.” /d. (citation omitted).
B-9
Regarding pension benefits, Coffy observed that the test for
whether the statute applies is whether a particular benefit is a
“perquisite of seniority”. Jd. The court noted its previous holding
in Alabama Power Co. v. Davis, 431 U.S. 582, 97 S.Ct. 2002
(1977) that pension benefits were “perquisites of seniority” if the
true nature of the benefits was “a reward for length of service.” /d.
at 197-98, 100 S.Ct. at 2105. Coffy restated the two-prong test of
Alabama Power that: (1) there must be a reasonable certainty
that the benefit would have accrued if the employee had not gone
into the military service; and (2) the nature of the benefit must be
a reward for length of service. The court proceeded to evaluate
the plan before it, and determined that both prongs of the test
were met. Comparison of the plan involved here with that
evaluated in Coffy, shows that the second prong of Alabama
Power is clearly satisfied. As noted above, the plan is structured in
such a way that one must accrue service credits over a period of
years to qualify for a pension. Once an employee reaches 1,000
hours in a given year, no further credit is given in that year toward
qualifying for the pension. Thus, to attain the requisite years of
service credit, one must actually earn the hours of service over an
extended period of years. Thus, Coffy appears dispositive as to the
“perquisite of employment” test.
As for the first prong of Alabama Power (i.¢., reasonable
certainty that the benefit would have accrued absent military
service interruption), plaintiff cites defendant's response to a
crucial discovery document, i.c., plaintiff's request for admission
no. 5. That response admits that “plaintiffs pension benefits,
under defendant's pension plan which is the subject of this action,
would have accrued, with reasonable certainty, had plaintiff been
continuously employed as a laborer in the construction industry in
Northern California and not left for military service.” Plaintiff
contends that this admission makes it clear that the “reasonable
certainty” prong is met, and that under § 2021(b)(2), plaintiff
was entitled to receive the same benefits he would have received
had he never temporarily left that industry for military service.
Indeed, defendant's response in admission No. 5 makes that very
concession.
B-10
Moreover, the reasonable certainty prong was confirmed by the
evidence adduced at trial. Defendant's admission regarding the
“reasonable certainty of accrual” test is made even more compel-
ling by the testimony at trial which clearly showed that the union
operated a de facto “hiring hall” for the industry in Northern
California prior to 1959. The essence of that de facto hiring hall
procedure is that the union controlled the dispatch of employees
to the pension covered jobs throughout the industry in Northern
California. Use of that practice essentially guaranteed that as long
as plaintiff sought work by registering at the union hall he would
be dispatched to jobs covered by the pension plan here in dispute.
The significance of such a practice is two fold. It is probative of
the reasonable certainty prong in that the pattern of job dis-
patches before and after plaintiffs military service shows a high
probability that, but for his service during the Korean war, he
would have worked in covered employment during the war years.
It also shows that the union hall itself controlled the hiring
process and was considered to be the appropriate location to make
application for reemployment. Thus, to assure continued employ-
ment in a pension covered job, plaintiff reported to the appropri-
ate union hall to be dispatched to a job site.
Plaintiff's testimony shows that in order to obtain work at a
given site, the laborer had to appear at the union hall and wait to
be dispatched to work by the union. The union dispatched
workers whose names were on the “out-or-work” list to job sites
as contractors notified the union of their man power needs. Until
1959, that list consisted of tablet on which the union wrote the
names of individuals needing work. Plaintiff testified that his
process was treated as mandatory for obtaining work.
Although defendant strongly disputes that any hiring hall
existed prior to 1959, plaintiffs testimony is corroborated by
several witnesses. Audrain Weatherl, the now assistant regional
manager of the union and former union field representative,
testified that the only significant change in that job referral
practice that occurred in 1960 which deviated from the pre-1959
* After 1959 certain changes were adopted that firmly established a
hinng hall.
B-11
procedure was the use of a peg board. Use of the board made
information regarding who was next in line for work immediately
visible to the member in the hall and eliminated the need to
examine the tablet that had been used in the past. Prior to that
change, members simply signed in on a tablet which was other-
wise used for the same purpose. When a member was finally
dispatched to work, his name was crossed off the list by drawing a
line through it. [Tr. 77-79].
Glen Daniels, a union member and laborer in the relevant
industry, testified regarding his experiences in being dispatched
from the hiring hall from 1953 through 1957. When sent to a job,
he was provided a dispatch slip from the union. Upon arrival at
the job site, he presented the contractor the original of the slip
and retained a carbon copy for himself. [Tr. 82-83].
Emery Snyder, another union member and laborer in the
Northern California industry during the relevant time periods,
described the hiring hall practices in even more detail and his
testimony reveals that the process was considered mandatory.
[ Tr. 91-92]. Robert Day, also a laborer in the relevant industry in
1958 and 1959, described how he was required by a construction
company superintendent to obtain clearance through the union
hall before going to work. [Tr. 93-95]. Kenneth Fossum, another
union member in the relevant industry, described how he was
required to use the hall to obtain work as a laborer in 1958. [Tr.
97-101]. The testimony of those witnesses was credible and went
unchallenged by cross examination.
To dispute the existence of a hiring hall, defendant offered the
deposition testimony of Victor Van Bourg, an attorney that
represented the union. He stated that prior to 1959, the Master
agreement contained no provisions requiring an employee to go
through the hiring hall process. He opined that such a procedure
probably did not exist prior to 1959. He based that opinion on the
absence of language in the agreement providing for such a
procedure prior to 1959, his legal opinion that such a system was
illegal prior to 1959, and his conversations with others regarding
the topic. However, Van Bourg conceded that he had no personal
knowledge regarding actual Local 185 practices at the time.
Without such personal knowledge, his opinion is of little probative
B-12
value in refuting the several plaintiffs witnesses who testified
from personal experience.
Defendant further offered the deposition testimony of Joseph
Karan, an assistant business representative of Local 185 from
1953 to 1976. He stated that on a few occasions he was able to
obtain jobs by talking to the job site foreman rather than going
through the union hall.
In resolving this factual conflict, the court relies heavily on the
particularity as to details, and the personal knowledge, and the
overall demeanor of plaintiff and his witnesses. In short, their
testimony was credible. Moreover, it was not directly contradicted
in any particulars by defendant’s witnesses. At best, defendant’s
witnesses provided a motive for why the Master Agreement would
remain silent on a hiring hall process (it was believed to be illegal
at the time), and indicated that occasionally, a laborer could
obtain a job directly from the job site foreman. However, plain-
tiff's evidence of a de facto hiring hall process was not seriously
challenged by competent evidence. In light of the testimony at
trial, the court finds that a de facto hiring hall procedure was
operated in the Northern California industry prior to 1959 and
plaintiff was generally required to go through the union to secure
employment in the industry. Therefore, when plaintiff reported to
the Local 185 hall within a few days after his honorable discharge
in March 1955, reactivated his regular dues paying membership,
and placed himself on the so-called “‘out-of-work”’ list, he made
application for reemployment for his preservice job at the location
where individuals in the covered industry were expected to apply.
Indeed, that application proved fruitful when plaintiff, within 90
days of his release from active military duty, was dispatched to
another trust fund covered construction project, just as he had
been dispatched to many other projects before and after his
military service.
The court further finds that the true nature of the benefits
involved here in to reward the length of service within the
industry itself and not with any single contractor. Indeed, the
benefit plan appears designed by the several participating employ-
ers with that specific goal in mind so as to accommodate the
construction industry’s inherent need to fill positions in an indus-
B-13
try that has a tendency to provide individual jobs of only short
duration. The court further finds that there is a reasonable
certainty that plaintiff's pension benefits would have continued to
accrue in full had plaintiff not entered military service. Accord-
ingly, both prongs of Alabama Power are met and the pension
credits in question are so-called “perquisites of seniority.” In sum,
there appears little doubt that this plan fits into the Alabama
Power and Coffy analysis regarding § 2021 application to pension
benefits.’
“Other than Temporary Position”
Section 2021(a) also requires that the veteran, before he is
covered by the seniority protection provisions of the Act, be one
who left “a position (other than a temporary position) in order to
perform such military service.” Plaintiff and defendant seem to
talk past each other regarding this element. Defendant focuses on
plaintiffs immediately preceding employer [Tarlton] and charac-
terizes the work for that single employer as “casual” and thus
“not other than temporary.” Defendant also emphasizes the
limited duration of the project being worked on. Plaintiff, on the
other hand, focuses on plaintiff's pre-military service employment
in the multi-employer trust fund covered industry itself.
Plaintiff present a very compelling analysis for why the industry
itself (which is composed of the employer who make up the trust
plan) must be the focus, rather than a single contractor, when a
pension is pursuant to a multi-employer plan. The very purpose
for such plans is to assure a stable workforce by providing workers
the type of pension vesting and protection that would be available
from a single long term employer.
> That the particular project on which plantiff worked prior to his
military service was completed, and that the laborers were laid off before
plaintiff was discharged from the military, is not dispositive. The
Supreme Court has held for purposes of calculating seniority rights, that
the veteran is to be presumed continuously employed regardless of the
possibility of illness, layoff, or other economic uncertainties. See, e.g.,
Palmarozzo v. Coca-Cola Bottling Co. of New York, Inc., 490 F.2d 586,
591 (2d Cir. 1973) and the authorities cited therein.
B-14
““Multi-employer plans were originally developed in indus-
tries where job changes were frequent and there was little
continuity in the employer-employee relationship. For exam-
ple, in some industries employees are often hired for a
specific project, and their employment terminates with the
project’s completion. In other industries conditions of fierce
competition, frequent business failures or recurring layoffs
prevent the establishment of a stable employer-employee
relationship. In these kinds of industries workers cannot
obtain meaningful pension rights from a single employer.
Thus, collectively bargained-for multi-employer pooled
funds or plans came into being to provide pension protection
for workers in highly volatile industries.”
Textile Workers Pension v. Standard Dye and Finishing, 725 F.2d
843, 847 (2d Cir. 1984). The legislative history of the Multi-
employer Pension Plan Act of 1980 further describes the balance
struck in favor of stability of the work force and continuity of
employee health and welfare benefits.
“The expansion of private pension plan coverage in the
United States over the past three decades is attributable in
large measure to the establishment and growth of collec-
tively-bargained plans, and particularly multi-employer
plans. There are now about 2,000 multi-employer plans of
the defined benefit type, covering about 8,000,000 partici-
pants, workers and retirees. More than half those plans,
covering almost 30 percent of all such participants, are in the
construction industry. Almost 25 percent of participants in
defined benefit multi-employer plans are in plans in manu-
facturing industries, which constitute about 14 percent of all
such plans.
The term multi-employer plan is used here in its traditional
context, to refer to a plan maintained pursuant to one or
more collective bargaining agreements which cover the em-
ployees of two or more unaffiliated employers. the signatories
to the collective bargaining (or related) agreements pursuant
to which a multi-employer plan is maintained, normally
agree to contribute-at rates specified in such agreement(s)
for hours worked by employees, units of production such as
A
B-15
coal mined or cargo shipped, or a percentage of compensa-
tion, as the case may be. Contributions are made to a pooled
fund administered by a board of trustees composed equally of
employer designated and union designated trustees. The
trustees normally have the authority to manage the assets of
the plan and to set eligibility requirements and benefit forms
and levels.
Multi-employer plans have historically provided a high de-
gree of benefit security to plan participants because of the
features of “pension portability” and “self-insurance” which
characterize such plans. Pension portability under a multi-
employer plan means that a participant’s benefit is based on
service with all contributing employers for whom the partici-
pant who moves from one contributing employer to another,
who might otherwise not be eligible for benefits based on
services with any one employer, to receive a pension if his or
her total service with all the contributing employers is
sufficient to satisfy the plan’s requriements for a vested
benefit. This feature is particularly but not exclusively impor-
tant in industries such as construction, water transportation,
and the performing arts, which are characterized by mobility
of employees, or employers, or rapid turnover of both. Multi-
employer plans have also proved to be an important and
viable mechanism for providing retirement income in indus-
tries as diverse as mining, retail foods, and trucking.”
“Multi-employer plans are also characterized by a ‘self-
insurance’ feature which enables a plan participant to retain
benefit credits earned for service with a contributing em-
ployer even though the employer subsequently ceases con-
tributing to the plan. A contributor’s obligation to continue
to fund the benefit obligations of a multi-employer plan
normally ceases upon the contributor’s withdrawal from the
plan, whether as a result of the cessation of the contributor’s
covered operation or the termination of the collective bar-
gaining relationship. Thus contributors who remain in the
plan and newly entering contributors have the burden of
funding the unfunded benefit obligations for employees of a
withdrawn employer.”
B-16
House Report No. 96-869 at 52-53, 96th Cong. 2d Sess., re-
printed in 1980 U.S. Code Cong. Admin. News at 2920-21.
The House Report shows that the very intent of the Multi-
employer Pension Plan Act is to treat the particular industry
covered by the plan as the “employer” for pension purposes so
that vesting nghts are not compromised as a result of frequent lay
offs when projects of limited duration come to an end. Similarly,
it is clearly the purpose of 38 U.S.C § 2021 to protect a veteran’s
status under such a plan so that a period of military duty does not
disadvantage the veteran’s benefits in any way. ;
Defendant’s version of the Act’s protection of a returning
veteran’s pension nghts during a period of military service would
completely negate such protection whenever a multi-employer
pension plan is involve. Moreover, defendant’s version as a practi-
cal mater would deny military credit for virtually any employee in
the construction industry. As noted in Standard Dye, such jobs
are nearly always of a fixed short term nature. In view of the
purpose for multi-employer plans and § 2021, defendant’s position
cannot be reconciled with the Supreme Court’s admonition that
the Act be /iberally construed in favor of the returning veteran.
Coffy. Although the Act’s protection of pension rights under
industry wide multi-employer plans may cause the plan some
inconvenience that was not onginally contemplated by the con-
tracting parties, “[t]he Act was premised on the recognition that
the man in the military is not represented at the bargaining table
and that any special status accorded veterans is an inconvenience
to union and management alike.” Palmarozzo v. Coca-Cola
Bottling Co. of New York, Inc., 490 F.2d 586, 592 (2d Cir. 1973).
Here, it is clear that under all of the circumstances surrounding
his employment in the covered industry, plaintiff had a reasonable
expectation that, but for the brief interruption during which he
served in the military, he would have continued to work in that
industry under the multi-employer pension plan in question and
accordingly would have continued earning pension credits. Under
Coffy, the Act requires that plaintiff not merely be placed back on
the pension seniority escalator at the point he stepped off. Rather,
he must be piaced back at the precise point he would have
B-17
occupied but for the disruption occasioned by his military duty.
The evidence in this case shows that point can only be reached by
a pension recalculation that includes the credit plaintiff seeks
herein. .
Conclusion
Because plaintiff's rights under the Act were violated when
defendant denied plaintiff pension credit for his period of military
service, it is hereby ordered that defendant include such period in
the computation of plaintiffs past credited service and total
benefits, and such inclusion shall be retroactive to February 1,
1979 (the date of plaintiffs application for benefits). Plaintiff
shall be paid in a lump sum the total back due benefits as a result
of that recomputation and plaintiff is hereby awarded prejudg-
ment interest on that amount at the rate of 7%.* See Hanna v.
American Motors Corp., 724 F.2d 1300, 1311-12 (7th Cir. 1984)
and Hembree v. Georgia Power Co., 637 F.2d 423, 430 (Sth Cir.
1981). It is further ordered that upon such recomputation defen-
dant shall adjust plaintiffs future monthly pension payments to
reflect the inclusion of the period of plaintiffs military service.
Any application for fees or costs shall be made pursuant to Local
Rules 292 and 293.
IT IS SO ORDERED.
DATED: October 25, 1988.
EDWARD J. GARCIA
EDWARD J. GARCIA, JUDGE
UNITED STATES DISTRICT
COURT
* There being no federal statutory rate, the court adopts the California
statutory rate of 7%. See Hanna v. American Motors Corp., supra at
1312, n.13; and Pacific Southern Mortgage Trust Co. v. Insurance Co. of
North America, 166 Cal.App. 3d 703, 716-17, 212 Cal.Rptr. 754, 761-62
(Cal.Ct.App. 1985) (4th Dist.).
B-18
United States District Court
Eastern District of California
Case Number: CIVS-83-1406 EJG
Imel
V.
Laborers Pensions Trust Fund of Northern California
JUDGMENT IN A CIVIL CASE
[ Filed October 25, 1988]
C) Jury Verdict. This action came before the Court for a trial
by jury. The issues have been tried and the jury has rendered its
verdict.
& Decision by Court. This action came to trial or hearing
before the Court. The issues have been tried or heard and a
decision has been rendered.
IT IS ORDERED AND ADJUDGED
THAT JUDGMENT IS HEREBY ENTERED ACCORD-
ING TO THE COURT’S ORDER ENTERED OCTOBER 25,
1988
Entered October 25, 1988
Date: October 25, 1988
J.R. GRINDSTAFF
Clerk
P. NELSON
Deputy Clerk
C-1
Appendix C
United States Code, Title 38, Chapter 43,
Sections 2021 and 2022
Section 2021. Right to reemployment of inducted persons;
benefits protected
(a) In the case of any person who is inducted into the Armed
Forces of the United States under the Military Selective Service
Act (or under any prior or subsequent corresponding law) for
training and service and who leaves a position (other than a
temporary position) in the employ of an employer in order to
perform such training and service, and (1) receives a certificate
described in section 9(a) of the Military Selective Service Act
(relating to the satisfactory completion of military service), and
(2) makes application for reemployment within ninety days after
such person is relieved from such training and service or from
hospitalization continuing after discharge for a period of not more
than one year—
(A) if such position was in the employ of the United
States Government, its territories, or possessions, or political
subdivisions thereof, or the District of Columbia, such person
shall—
(i) if still qualified to perform the duties of such posi-
tion, be restored to such position or to a position of like
seniority, status, and pay; or
(ii) if not qualified to perform the duties of such
position, by reason of disability sustained during such
service, but qualified to perform the duties of any other
position in the employ of the employer, be offered employ-
ment and, if such person so requests, be employed in such
other position the duties of which such person is qualified
to perform, as will provide such person like seniority,
Status, and pay, or the nearest approximation thereof
consistent with the circumstances in such person’s case;
C-2
(B) if such position was in the employ of a State, or
political subdivision thereof, or a private employer, such
person shall—
(i) if still qualified to perform the duties of such posi-
tion, be restored by such employer or the employer's
successor in interest to such position or to a position of like
seniority, status, and pay; or
(ii) if not qualified to perform the duties of such
position, by reason of disability sustained during such
service, but qualified to perform the duties of any other
position in the employ of such employer or the employer's
successor in interest, be offered employment and, if such
person so requests, be employed by such employer or the
employer’s successor in interest in such other position the
duties of which such person is qualified to perform as will
provide such person like seniority, status, and pay, or the
nearest approximation thereof consistent with the circum-
stances in such person’s case.
unless the employer’s circumstances have so changed as to
make it impossible or unreasonable to do so. Nothing in this
chapter shall excuse noncompliance with any statute or
ordinance of a State or political subdivision thereof establish-
ing greater or additronal rights or protections than the nghts
and protections established pursuant to this chapter.
(b)(1) Any person who is restored to or employed in a
position in accordance with the provisions of clause (A) or (B) of
subsection (a) of this section shall be considered as having been
on furlough or leave of absence during such person’s period of
training and service in the Armed Forces, shall be so restored or
reemployed without loss of seniority, shall be entitled to partici-
pate in insurance or other benefits offered by the employer
pursuant to established rules and practices relating to employees
on furlough or leave of absence in effect with the employer at the
time such person was inducted into such forces, and shall not be
discharged from such position without cause within one year after
such restoration or reemployment.
C-3
(2) It is hereby declared to the sense of the Congress that any
person who is restored to or employed in a position in accordance
with the provisions of clause (A) or (B) of subsection (a) of this
section should be so restored or reemployed in such manner as to
give such person such status in the person’s employment as the
person would have enjoyed if such person had continued in such
employment continuously from the time of such person’s entering
the Armed Forces until the time of such person’s restoration to
such employment, or reemployment.
(3) any person who seeks or holds a position described in
clause (A) or (B) of subsection (a) of this section shall not be
denied hiring, retention in employment, or any promotion or other
incident or advantage of employment because of any obligation as
a member of a Reserve component of the Armed Forces.
(c) The rights granted by subsections (a) and (b) of this
section to persons who left the employ of a State or political
subdivision thereof and were inducted into the Armed Forces
shall not diminish any rights such persons may have pursuant to
any statute or ordinance of such State or political subdivision
establishing greater or additional nghts or protections.
Section 2022. Enforcement procedures
If any employer. who is a private employer or a State or
political subdivision thereof, fails or refuses to comply with the
provisions of section 2021 (a), (b)(1), or (b) (3), or 2024 of this
title, the district court of the United States for any district in
which such private employer maintains a place of business, or in
which such State or political subdivision thereof exercises author-
ity Or Carries out its functions, shall have the power, upon the
filing of a motion, petition, or other appropriate pleading by the
person entitled to the benefits of such provisions, specifically to
require such employer to comply with such provisions and to
compensate such person for any loss of wages or benefits suffered
by reason of such employer’s unlawful action. Any such compen-
sation shall be in addition to and shall not be deemed to diminish
any of the benefits provided for in such provisions. Upon applica-
tion to the United States attorney or comparable official for any
district in which such private employer maintains a place of
C-4
business, or in which such State or political subdivision thereof
exercises authority or carries out its functions, by any person
claiming to be entitled to benefits provided for in such provisions,
such United States attorney or official, if reasonably satisfied that
the person so applying is entitled to such benefits, shall appear
and act as attorney for such person in the amicable adjustment of
the claim or in the filing of any motion, petition, or other
appropriate pleading and the prosecution thereof specifically to
require such employer to comply with such provisions. No fees or
court costs shall be taxed against any person who may apply for
such benefits. In any such action only the employer shall be
deemed a necessary party respondent. No State statute of limita-
tions shall apply to any proceedings under this chapter.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.