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.

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Petition for Writ of Certiorari — Laborers Pension Trust Fund for Northern California v. Imel · 498 U.S. 939 | Frix