Petition for Writ of Certiorari — McCoy v. Massachusetts Institute of Technology

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In the

Supreme Court of the United States

OCTOBER TERM, 1991

JAMES L. McCOY, ADMINISTRATOR OF

THE ELECTRICAL WORKERS TRUST FUNDS,

LocaL 103 I.B.E.W.,

PETITIONER,

Vv.

MASSACHUSETTS INSTITUTE OF TECHNOLOGY,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

PETITION FOR WRIT OF CERTIORARI

KATHERINE A. HESSE

Counsel of Record

Davip W. HEALEY

MurPHY, HESSE, TOOMEY & LEHANE

300 Crown Colony Drive

Suite 410

Quincy, Massachusetts 02269-9126

(617) 479-5000

BOSTON, MASSACHUSETTS

BATEMAN & SLADE. INC

QUESTIONS PRESENTED

I. Whether trust funds established pursuant to § 302(c)(9)

of the Labor Management Relations Act of 1947, as amended

(“LMRA”), 29 U.S.C. § 186(c)(9), are as a matter of law

necessarily “employee welfare benefit plan{s]” within the

meaning of § 3(1) of the Employee Retirement Income Security

Act of 1974 (“ERISA”), 29 U.S.C. § 1002(1).

Il. Whether the First Circuit deviated from this Court’s

precedents regarding review of motions to dismiss where it

found the Educational Fund to be an employee welfare benefit

plan despite no allegation in the complaint to that effect.

[1]. Whether § 514(a) of ERISA pre-empts Massachusetts

G.L. c. 254 which permits any person, including but not limited

to general contractors, laborers, subcontractors, trustees of

§ 302 funds, who improves the property to file a lien upon

the pool of funds left owed but unpaid under the contract

between the owner of the property and the general contractor

at the time the lien is filed and secured by the owner’s property.

IV. Whether the remedy provided by Massachusetts G.L.

c. 254 is a remedy permissible under Rule 64 of the Federal

Rules of Civil Procedure and thereby saved from pre-emption

by virtue of § 514(d) of ERISA.

V. Whether Rule 64 of the Federal Rules of Civil Procedure.

which incorporates by reference existing state law creditor

prejudgment remedies creating substantive rights, would be

rendered invalid by the Rules Enabling Act, 28 U.S.C. § 2072.

VI. Whether § 515 of ERISA, 29 U.S.C. § 1145, and § 301(a)

of the LMRA, 29 U.S.C. § 185(a), would be altered, amended.

modified, invalidated, impaired or superseded by pre-emption

of Massachusetts G.L. c. 254, and is thereby saved from

pre-emption by virtue of § 514(d) of ERISA.

ill

PARTIES

The petitioner for this writ of certiorari is James L. McCoy,

Administrator of the Electrical Workers Trust Funds, Local

103 I.B.E.W. The respondent is the Massachusetts Institute

of Technology. The petitioner was the appellant in the United

States Court of Appeals for the First Circuit and the respondent

was the appellee in that court.

TABLE OF CONTENTS

QUESTIONS PRESENTED

PARTIES ill

TABLE OF AUTHORITIES Vi

OPINIONS BELOW 2

STATEMENT OF JURISDICTION 2

STATUTORY PROVISIONS INVOLVED 2

STATEMENT OF THE CASE 3

A. Basis For Federal Jurisdiction 3

B. Factual Background 3

C. Procedural History 4

REASONS THE WRIT SHOULD BE GRANTED 5

1. The Decision Of The First Circuit That § 302(c)(9)

Trust Funds Are Employee Welfare Benefit Plans

As a Matter Of Law Is In Direct Conflict With

§ 3(1) of ERISA, § 302(c)(9) of the LMRA, The

Department Of Labor’s Interpretation, And In-

volves An Important Issue of Federal Law War-

ranting This Court’s Review 5

Il. The First Circuit Deviated From This Court's Pre-

cedents Regarding Review Of Motions To Dismiss

In Finding The Educational Fund To Be An Em-

ployee Welfare Benefit Plan Despite No Allega-

tion In The Complaint To That Effect 8

lI. The Continued Disregard By Courts Of Appeal Of

Congressional Intent To Preserve State Law Col-

lection Remedies Is Contrary To This Court's Pre-

nn ene eR ERE EN nn

TABLE OF CONTENTS (cont.)

emption Analysis And Is Depriving ERISA plans

Of The Ability To Collect Contributions, Warrant-

ing This Court’s Review 9

IV. The Court Should Grant Certiorari To Correct The

First Circuit’s Misapplication Of This Court’s

Decision In Mackey v. Lanier Collection Agency

& Service, Inc. And To Resolve The Conflict

Among Courts Over This Issue 14

V. The Court Should Grant The Writ Of Certiorari

To Review The First Circuit’s Erroneous Decision

That Chapter 254 Is Not A Remedy Included In

Rule 64 Of The Federal Rules Of Civil Procedure

And Saved From Pre-emption By § 514(d) Of

ERISA 17

VI. The Pre-emption Of State Mechanics’ Lien

Statutes Undermines And Impairs Federal Labor

And Pension Laws Which Have Long Depended

On Mechanics’ Liens, Bonding And Other State

Statutes To Enforce The Collective Bargaining

Obligations Of Employers, And Are Therefore

Saved From Pre-emption By § 514(d) of ERISA 24

CONCLUSION 25

APPENDICES follows page 25

TABLE OF AUTHORITIES

CASES

Brennan v. Silvergate Dist. Lodge No. 50, Inter. Assoc.

of Machinists and Aerospace Workers, AFL-CIO,

503 F.2d 800 (9th Cir. 1974) 21

Vil

TABLE OF AUTHORITIES (cont.)

Bricklayers and Allied Craftsmen Intern. Union Local

33 Benefit Funds v. America’s Marble Source, Inc.,

F.2d , 1991 WL 253389 (3rd Cir. 1991)

Burlington Northern Railroad Co. v. Woods, 480 Uo.

1 (1987)

Carpenters §. Cal. Admin. Corp. v. El Capitan Dev.

Co., 53 Cal.3d 1041, 282 Cal.Rptr. 277, 811 P.2d

296 (Cal. 1991), cert. denied, U.S. , 8

S.Ct. 430 (1991)

Charles Dowd Box Co. v. Courtney, 368 U.S. 502

(1962)

Conley v. Gibson, 355 U.S. 41 (1957)

Daily Income Fund v. Fox, 464 U.S. 523 (1984)

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)

Fontenot v. Roach, 120 F. Supp. 788 (E.D. Tenn.

1954)

Friedman v. County of Hampden, 204 Mass. 494, 90

N.E. 851 (1910)

Fuentes v. Shevin, 407 U.S. 67 (1972)

Gladstone, Realtors v. Village of Bellwood, 441 U.S.

91 (1979)

Granny Goose Foods, Inc. v. Brotherhood of Team-

sters & Auto Truck Drivers, 415 U.S. 423 (1974)

Huron Holding Corp. v. Lincoln Mine Operating Co.,

312 U.S. 183 (1941)

Idaho Plumbers and Pipefitters Health and Welfare

Fund v. United Mechanical Contractors, Inc., 875

F.2d 212 (9th Cir. 1989)

Vill

TABLE OF AUTHORITIES (cont.)

Ingersoll-Rand Company v. McClendon, U.S. ;

111 S.Ct. 478, 112 L.Ed.2d 474 (1990) 10

Iron Workers Mid-South Pension Fund v. Terotechnol-

ogy Corp., 891 F.2d 548 (Sth Cir.), cert. denied, 110

S.Ct 3272 (1990) 10

Kamen v. Kemper Financial Services, Inc., U.S.

, 111 S.Ct. 1711 (1991) 19,20

Kend v. Chroma-Glo, Inc., 51 F.R.D. 547 (D. Minn.

1970), aff'd, 478 F.2d 198 (8th Cir. 1973) 21

Mackey v. Lanier Collection Agency & Serv. Inc., 486

U.S. 825 (1988) 13,14,15,

16,17,18,19,23

Ospina v. Vanelli, 34 F.R.D. 151 (D. Minn. 1964) 22

Peters v. Hartford Accident and Indemnity Company,

377 Mass. 863, 389 N.E.2d 63 (1979) 15,17

Pilot Life Ins. Co. v. Dedeaux, 481 U.S. 41 (1987) 9

Plumbers Local 458 Holiday Vacation Fund v. Howard

Immel, Inc., 151 Wis.2d 233, 445 N.W.2d 43 (Wis.

App. 1989) 10,12,16

Quinones v. Szorc, 771 F.2d 289 (7th Cir. 1985) 9

Retirement Fund of the Fur Manufacturing Industry v.

Getto & Getto, Inc., 714 F. Supp. 651 (S.D.N.Y.

1989) 12

Sasso v. Vachris, 66 N.Y.2d 28, 484 N.E.2d 1359,

494 N.Y.S.2d 856 (1985) 10,12

Scheuer v. Rhodes, 416 U.S. 232 (1974) 8,9

Schneider Moving and Storage Company v. Robbins,

466 U.S. 364 (1984) 24

Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983) 9.

16,18,24

TABLE OF AUTHORITIES (cont.)

Sturgis v. Herman Miller, Inc., 943 F.2d 1127 (9th

Cir. 1991) 10

Textile Workers Union of America v. Lincoln Mills of

Ala., 353 U.S. 448 (1957) 24

STATUTES AND RULES

Section 3(1) of ERISA, 29 U.S.C. § 1002(1) £,90,1

Section 502(g)(2} of ERISA, 29 U.S.C. § 1132(g)(2) 2,10,

11,12,13,14,15

Section 505 of ERISA, 29 U.S.C. § 1135 2,5

Section 514(a) of ERISA, 29 U.S.C. § 1144(a) 2,4,9,

12,13,15,16,18

Section 514(d) of ERISA, 29 U.S.C. § 1144(d) 2,4,17,

18,24,25

Section 515 of ERISA, 29 U.S.C. § 1145 2,10,11,

12.13,14,.24.25

Section 301 (a) of the LMRA, 29 U.S.C. § 185(a) = 2,18,.24.25

Section 302(c) of the LMRA, 29 U.S.C. § 186(c) 2.5.6.7.

8,15,16,24

Section 6 of the Labor Management Cooperation Act

of 1978 3,6

28 U.S.C. § 1254(1) 2

28 U.S.C. § 1331 3

28 U.S.C. § 144] 3

28 U.S.C. § 1447(c) 3,4

TABLE OF AUTHORITIES (cont.)

28 U.S.C. § 2072 2,17,19,21,22

28 U.S.C. § 2101(c) 2

Federal Rules of Civil Procedure

Rule 12(b)(6) 4.8

Rule 64 2,4,17,18,19,21,22,23

Rule 69(a) 2,19,21,23

Massachusetts General Laws

c. 254, § 1 2

c. 254,§4 2,6,15,16,17

LEGISLATIVE HISTORY

Senate Labor and Finance Committee (s. 1076),

126 Cong. Rec. p. 20202 1]

House Ways and Means Committee (H.R. 3904),

1980 U.S. Code Cong. & Ad. News, p. 2918, 3038 11,12

126 Cong. Rec. p. 20180 (statements of Senators

Matsunaga and Williams) 13

126 Cong. Rec. p. 23288 (statement of Senator

Williams) 13

REGULATIONS AND OPINIONS -

DOL ERISA Adv. Op. 91-08A A

DOL ERISA Adv. Op. 84-40A 3,5,7

OTHER AUTHORITIES

MOORE’S FEDERAL PRACTICE, par. 64.03 at

p. 64-8 (1983) 21

Bonds, Liens & Insurance, Federal Publications (1986)

No. -

In the

Supreme Court of the United States

OCTOBER TERM, 1991

JAMES L. McCOY, ADMINISTRATOR OF

THE ELECTRICAL WORKERS TRUST FUNDS,

LocaL 103 I.B.E.W..,

PETITIONER,

MASSACHUSETTS INSTITUTE OF TECHNOLOGY,

RESPONDENT.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITEDSTATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner, James L. McCoy, Administrator of the Electrical

Workers Trust Funds, Local 103 I.B.E.W., respectfully prays

that a writ of certiorari issue to review the decision of the

United States Court of Appeals for the First Circuit entered in

this case on November 19, 1991.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the

First Circuit has not yet been officially reported, but has been

reported at 14 Employee Benefit Cases 1874. The opinion of

the District Court upon which this appeal is based is reported

at 760 F. Supp. 12 (D. Mass. 1991). Both opinions are re-

printed in the Appendix to this petition ( Appendix A and C).

STATEMENT OF JURISDICTION

The United States Court of Appeals for the First Circuit

issued an opinion affirming the judgment of the District Court

on November 19, 1991 and judgment entered that same day

(Appendix B, infra). Petitioner seeks review of this judgment

pursuant to 28 U.S.C. § 1254(1). This petition is timely filed

with this Court under the provisions of 28 U.S.C. § 2101(c).

STATUTORY PROVISIONS INVOLVED

The relevant statutory provisions are: (1) Massachusetts

G.L. c. 254, § 4; Massachusetts G.L. c. 254, § 1: § 502(g)(2)

of Employee Retirement Income Security Act of 1974, as

amended (hereinafter “ERISA”), 29 U.S.C. § 1132(g)(2);

§ 505 of ERISA, 29 U.S.C. § 1135; § 514(a) of ERISA, 29

U.S.C. § 1144(a); § 514(d) of ERISA, 29 U.S.C. § 1144(d);

§ 51S of ERISA, 29 U.S.C. § 1145; § 3(1) of ERISA, 29

U.S.C. § 1002(1); § 301 (a) of the Labor Management Relations

Act of 1947, as amended (hereinafter “LMRA”), 29 U.S.C.

§ 185(a); § 302(c) of the LMRA, 29 U.S.C. § 186(c); 28

U.S.C. § 2072, Rules 64 and 69(a) of the Federal Rules of Civil

Procedure: § 6 of the Labor Management Cooperation Act of

1978 (hereinafter “LMCA”), 90 Stat. 2020; Department of

Labor (“DOL”) Adv. Op. 91-08A; DOL Adv. Op. 84-40A.

These statutes and opinions are set forth in Appendix F,G

and H, infra.

STATEMENT OF THE CASE

A. BASIS FOR FEDERAL JURISDICTION

The basis for federal court jurisdiction is at issue in this

action. This action, originally filed by petitioner James L.

McCoy in state court, was removed purportedly pursuant to

28 U.S.C. $1331 and § 1441. Respondent Massachusetts In-

stitute of Technology moved to dismiss petitioner's complaint

and petitioner moved to remand pursuant to 28 U.S.C. § 1447

(c). The district court granted respondent's motion to dismiss

based solely on ERISA pre-emption grounds and denied

petitioner's motion to remand.

B. FACTUAL BACKGROUND

James L. McCoy (hereinafter “McCoy”) is the administrator

and/or agent of various trust funds established pursuant to the

requirements of 29 U.S.C. § 186, including pension, annuity,

health and welfare, holiday, vacation and supplementary un-

employment, apprenticeship and educational funds (hereinafter

the Funds”) (Appendix E, infra). S.N. Brown Electrical Corp.

was a subcontractor performing work on property owned by

the Massachusetts Institute of Technology (hereinafter “MIT”).

S_N. Brown Electrical Corp. was also an employer obligated

to make contributions to the Funds under a collective bargain-

ing agreement on behalf of workers who performed labor on

MIT's property. S.N. Brown Electrical Corp. became delinquent

and failed to make these contributions, in an estimated principal

amount of $30,000. On May 23, 1990, McCoy filed a Notice

of Contract in the Middlesex County Registry of Deeds pur-

suant to the statutory provisions of Massachusetts G.L. c. 254,

§ 4 and thereafter filed a Sworn Statement of Account and a

complaint to enforce the lien pursuant to the provisions of

Chapter 254 in Massachusetts state court.

C. PROCEDURAL HISTORY

The complaint to enforce the lien was filed by McCoy on

July 17, 1990 in the Middlesex Superior Court, Middlesex

County, Cambridge, Massachusetts and was subsequently re-

moved to the United States District Court for the District of

Massachusetts on or about August 7, 1990. MIT filed a motion

to dismiss McCoy’s complaint pursuant to Rule 12(b)(6) of

the Federal Rules of Civi! Procedure arguing that Massachu-

setts G.L. c. 254 was pre-empted by § 514(a) of ERISA.

McCoy moved to remand the action back to the state court

from which it was removed pursuant to 28 U.S.C. § 1447(c),

arguing that ERISA did not pre-empt Massachusetts G.L. c. 254.

McCoy also argued that even if § 514(a) pre-empts Massachusetts

G.L. c. 254, pre-emption applies only to those funds which were

employee benefit plans covered by ERISA, and the educational

fund was not alleged to be and was not such a plan. Finally,

McCoy argued that Chapter 254 was saved from pre-emption by

§ 514(d) of ERISA, because pre-emption would modify or impair

federal law, namely Rule 64 of the Federal Rules of Civil Proce-

dure. Oppositions were timely filed by McCoy to the motion to

dismiss and by MIT to the motion to remand.

On March 5, 1991, judgment was entered by the district

court denying McCoy’s motion to remand and allowing MIT's

motion to dismiss, by Memorandum and Order dated March

1, 1991 (Appendix D, infra). McCoy timely filed his appeal

to the United States Court of Appeals for the First Circuit on

March 29, 1991. On November 19, 1991, the United States

Court of Appeals for the First Circuit affirmed the district

court’s decision (Appendix B, infra).

REASONS THE WRIT SHOULD BE GRANTED

I. The Decision Of The First Circuit That § 302(c)(9)

Trust Funds Are Employee Welfare Benefit Plans As

A Matter Of Law Is In Direct Conflict With § 3(1) of

ERISA, § 302(c)(9) of the LMRA, The Department Of

Labor’s Interpretation, And Involves An Important

Question of Federal Law Warranting This Court’s Re-

view.

The determination of which types of trust funds are or are

not subject to the requirements of Title I of ERISA are impor-

tant questions of federal law with significant ramifications for

those funds and those who advise them. Prior to the First

Circuit's decision, no court or federal agency had ever before

held that trust funds established pursuant to § 302(c)(9) of the

LMRA, 29 U.S.C. § 186(c)(9), were “employee welfare bene-

fit plan[s]” as defined by § 3(1)(B) of ERISA, 29 U.S.C.

§ 1002(1)(B). Indeed the federal agency charged with inter-

preting ERISA had specifically opined on two separate occa-

sions that § 302(c)(9) funds were not employee welfare benefit

plans subject to Title I of ERISA. '

In finding all § 302(c) plans and specifically the Electrical

Workers Educational and Cultural Fund, Local 103 I.B.E.W.

(the “Educational Fund”), a § 302(c)(9) trust, to be an employee

welfare benefit plan despite the lack of any allegation in the

The Department of Labor is given the authority to interpret Title | of ERISA

by § 505 of ERISA, 29 U.S.C. § 1135. As the federal agency charged with

implementing and interpreting Title | of ERISA, the Department's consistent

and longstanding interpretation of § 3(1) of ERISA “commands considerable

deference.’ Gladstone, Realtors \ Village of Bellwood, 441 U.S. 91. 107

(1979). DOL Adv. Op. 91-08A and 84-40A are set forth in Appendix F andG

complaint to that effect,? the First Circuit misconstrued

§ 3(1)(B) of ERISA and 302(c)(9) of the LMRA and ignored

the Department of Labor's interpretation of § 3(1)(B) of

ERISA. This important question of federal law warrants this

Court’s review.

Section 302(a) of the LMRA as enacted in 1947 prohibited

employers from making payments or giving anything else of

value to unions and their representatives and provided criminal

penalties for violation of its provisions. Congress provided

various exceptions from this prohibition in § 302(c). Section

302(c)(9) was added by P.L. 95-524, 90 Stat. 2020, the Labor

Management Cooperation Act of 1978 (hereinafter the

(“LMCA”). Section 6(d) of the LMCA amended § 302(c) of

the LMRA by adding an exception to the prohibitions of 302(a)

of the LMRA “with respect to money or other things of value

paid by an employer to a plant, area or industry-wide labor

management committee established for one or more of the

purposes set forth in § 5(b) of the Labor Management Coop-

eration Act of 1978.”* Unlike employee benefit plans under

Title | of ERISA, Congress in § 6 of the LMCA charged the

Federal Mediation and Conciliation Service with oversight re-

sponsibility with respect to the LMCA rather than the Depart-

ment of Labor.

Both the district court and the First Circuit read § 3(1)(B)

of ERISA to mean that all § 302(c) funds must be “employee

welfare benefit plan[s].” Section 3(1 )(B) defines an “employee

welfare benefit plan” as “any benefit described in § 302(c) of

>To state a claim under Massachusetts G_L. c. 254, § 4, there is no need

to allege whether a plaintiff is an employee benefit plan, or subject to the

requirements of ERISA. The complaint, a copy of which is contained in

Appendix E, never alleged that the Funds were employee benefit plans, or that

they were subject to the requirements of ERISA, or that they provided benefits

or employee benefits.

‘The reference to § 5(b) should read § 6(b), which contains the permissible

purposes of § 302(c)(9) funds. Section 6 of the LMCA is reprinted in the

Appendix.

the Labor Management Relations Act, 1947 (other than pen-

sions on retirement or death, and insurance to provide such

pensions).” The First Circuit’s reading of this section is flawed

on two points. First, § 3(1)(B) was enacted in 1974 and there-

fore cannot be taken to include § 302(c)(9) which was added

in 1978, especially where the reference to the LMRA in

§ 3(1)(B) is oniy to the LMRA as originally enacted, with no

reference to amendments to the 1947 act. Second, by its own

terms § 3(1)(B) applies only to “any benefit” described in

§ 302(c). Unlike § 302(c)(5), (6), (7) and (8), there is no

requirement that § 302(c)(9) funds provide any benefits to

employees of the employer.

The two times the Department of Labor has had occasion

to interpret § 3(1)(B) of ERISA with respect to § 302(c)(9)

funds, it found the § 302(c)(9) funds not to be employee

welfare benefit plans as defined by § 3(1)(B) of ERISA. DOL

Advisory Op. 91-08A and 84-40A (Appendix F and G, infra).

In DOL Advisory Op. 91-08A, the Department of Labor stated

that “. . . it is the Department’s position that § 3(1)(B) of

ERISA does not mean that every arrangement described in

§ 302(c) of the Labor Management Relations Act of 1947 (the

LMRA) constitutes an employee welfare benefit plan within

the meaning to [sic] § 3(1) of ERISA.” (App. A45-A46). The

First Circuit, however, concluded: “The complaint states that

all the plans were ‘established pursuant to the requirements of

29 U.S.C. § 186.’ The plans are, therefore, employee welfare

benefit plans within ERISA’s purview.” (footnote omitted). (App.

A18). The Department of Labor’s interpretation of § 3(1)(B) of

ERISA is in direct conflict with the First Circuit’s interpretation.

The First Circuit erroneously interpreted § 3(1)(B) of ERISA

to include § 302(c)(9) funds. Furthermore, it did so on a motion

to dismiss, despite the absence of any allegation that such

funds provide benefits to employees and despite the contrary

interpretation given § 3(1) by the Department of Labor. Given

the importance of this question to trustees of § 302(c)(9) funds,

not only with respect to their right to file mechanics’ liens,

but also the uncertainty created as to whether § 302(c)(9) funds

need to comply with the requirements of Title I of ERISA,

the Court should grant certiorari to review the First Circuit’s

decision.

Il. The First Circuit Deviated From This Court’s Prece-

dents Regarding Review Of Motions To Dismiss In

Finding The Educational Fund To Be An Employee

Welfare Benefit Plan Despite No Allegation In The

Complaint To That Effect.

McCoy’s complaint contained no allegation that any of the

Funds were employee benefit plans. The complaint nowhere

alleged that the Funds were subject to ERISA, or that any of

the Funds provided benefits to participants and beneficiaries.

Notwithstanding the absence of any allegations in the complaint

that could lead one to conclude the Educational Fund was an

employee welfare benefit plan, the district court so found and

the First Circuit affirmed. This Court stated the standard of

review applicable to reviewing a motion to dismiss pursuant

to Rule 12(b)(6) of the Federal Rules of Civil Procedure in

Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). That standard

requires that the allegations of the complaint are taken as true

and construed in a light most favorable to the non-movant.

“In appraising the sufficiency of the complaint we follow, of

course, the accepted rule that a complaint should not be dis-

missed’ for failure to state a claim unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of

his claim which would entitle him to relief.’ Scheuer v.

Rhodes, 416 U.S. 232, 236 (1974), quoting Conley v. Gibson,

355 US. 41, 45-46 (1957) (footnote omitted).

In complete disregard for this standard, both the district

court and the First Circuit construed the complaint as if the

Educational Fund had beeh alleged to be an employee benefit

plan. Having turned on ifs head the standard of review appli-

cable to a motion to dismiss by viewing the complaint in a

light least favorable to/the petitioner, the First Circuit then

proceeded to saddle the/petitioner with the burden of disproving

the affirmative defens¢ of pre-emption, by finding that McCoy

failed to proffer evidence and argument that the Educational

Fund was not an eynployee benefit plan before the district

court.* Such a departure from this Court’s established standard

for reviewing a motjon to dismiss warrants this Court’s review.

lil. The Continued Disregard By Courts of Appeal Of

Congressional Intent To Preserve State Law Collec-

tion Remedies Is Contrary To This Court’s Pre-emp-

tion Analysis And Is Depriving ERISA Plans Of The

Ability To Collect Contributions, Warranting This

Court’s Review.

Each time the Court has considered whether § 514(a) of

ERISA pre-empts a state law, it has stated the purpose of

Congress to be “the ultimate touchstone.” Pilot Life Ins. Co.

Vv. Dedeaux, 481 U.S. 41, 45 (1987). “In deciding whether a

federal law preempts a state statute, our task is to ascertain

Congress’ intent in enacting the federal statute at issue.” Shaw

Vv. Delta Air Lines, Inc., 463 U.S. 85, 95 (1983). Recently the

‘The First Circuit discusses at length that petitioner should have argued at

greater length before the district court and apparently taken greater effort to

prove the Educational Fund was not an employee welfare benefit plan (App.

A16-A18). These statements overlook that MIT had the burden of proof with

respect to its pre-emption affirmative defense and not the petitioner. Further-

more, a motion to dismiss tests only the sufficiency of the pleading; the

petitioner need prove nothing at this stage. Scheuer v. Rhodes. 416 US. at

236. The petitioner did argue that preemption under § 514(a) of ERISA applies

only if the Educational Fund is an employee benefit plan, and pointed out that

it is not and was not alleged to be such a plan. In Opposing a motion to dismiss,

no more was needed. Quinones v. Szorc, 771 F.2d 289, 291 n.3 (7th Cir. 1985)

(stating that “‘[i]t is axiomatic that, to withstand a motion to dismiss, a plaintiff

Is not required to provide evidence of or prove the truthfulness of his complaint.”’)

Court reaffirmed this principle: “‘[T]he question whether a

certain state action is pre-empted by federal law is one of

congressional intent. The purpose of Congress is the ultimate

touchstone.’” /ngersoll-Rand Company v. McC lendon, 498

U.S. 111 S.Ct 478, 112 L.Ed.2d 474 (1990). The First

Circuit’s decision, however, as well as decisions by other

Circuit Courts of Appeal,° have disregarded or discounted Con-

gressional statements that ERISA was intended to supplement,

not to supercede, state laws used in the collection of contribu-

tions by multi-employer plans.

Congress considered the pre-emption of state law collection

remedies when it amended ERISA in 1980 to add §§ 502(g)(2)

and 515 to provide a cause of action to collect delinquent

contributions owed to multiemployer plans.° Congressional

statements from both the House Ways and Means Committee

and the joint explanation of the Senate Labor and Finance Com-

mittee indicate that state collection remedies would not be

superseded by this new ERISA cause of action. The joint ex-

‘The pre-emption of state mechanics’ lien statutes has been considered by

three other United States Courts of Appeal which in each case found the state

statute involved pre-empted by ERISA. See Bricklayers and Allied Craftsmen

Intern. Union Local 33 Benefit Funds v. America’s Marble Source, Inc.,

F.2d 1991 WL 253389 (3rd Cir. 1991); Sturgis v. Herman Miller, Inc.,

943 F.2d 1127 (9th Cir. 1991); Iron Workers Mid-South Pension Fund vy.

Terotechnology Corp., 891 F.2d 548 (Sth Cir.), cert. denied, 110 S.Ct. 3272

(1990). A majority of the California Supreme Court found its statute pre-empted.

Carpenters §. Cal. Admin. Corp. v. El Capitan Dev. Co., 53 Cal.3d 1041,

282 Cal.Rptr. 277, 811 P.2d 296 (Cal. 1991), cert. denied, US.

112 S Ct. 430 (1991). A Wisconsin appellate court found the Wisconsin state

mechanic’s lien statute not to be pre-empted by ERISA. Plumbers Local 458

Holiday Vacation Fund v. Howard Immel, Inc., 151 Wis.2d 233, 445 N.W.2d

43 (Wis.App. 1989).

*ERISA as originally enacted did not contain collection remedies for mul-

tiemployer trust funds. As a result, there is an absence of any Congressional

statements concerning the scope of pre-emption with respect to state law col-

lection remedies. The legislative history to the Multiemployer Pension Plan

Amendments Act of 1980 appears to contain the first discussion of pre-emption

in the context of state law collection remedies. Prior to the 1980 amendments,

courts had permitted collection of multiemployer contributions to be made

under state or federal law. See Sasso v. Vachris, 66 N.Y .2d 28. 484 N.E.2d

1359. 494 N.Y.S.2d 856, 860 (1985) (and cases cited)

planation of the Senate Labor and Finance Committee to the

Senate bill (S. 1076) concerning § 515 and § 502(g)(2) of

ERISA stated:

This [the amendments to ERISA] does not change

any other type of remedy permitted under state or

federal law with respect to delinquent multiemployer

plan contributions.

(126 Cong. Rec. p. 20202, App. A65). A similar statement

is contained in the Report of the House Ways and Means

Committee on the companion House bill (H.R. 3904) to the

Senate version cited above:

The Committee’s amendment provides that in the

case of a civil action by any person to collect delin-

quent multiemployer plan contributions, regardless

of otherwise applicable law, the court before which

the action is brought may award the plaintiff (1)

reasonable attorney’s fees, (2) court costs, and (3)

liquidated damages not to exceed 20 percent of the

amount of delinquent contributions as determined by

the court. However, these items are to be awarded

to a plaintiff only to the extent that the multiemployer

plan in question provided for such an award. The

bill preempts any State or other law which would

prevent the award of reasonable attorney's fees, court

costs or liquidated damages or which would limit

liquidated damages to an amount below the 20 per-

cent level. However, the bill does not preclude the

award of liquidated damages in excess of the 20

percent level where an award of such a higher level

of liquidated damages is permitted under applicable

State or other law. The Committee amendment does

not change any other type of remedy permitted under

State or Federal Law with respect to delinquent mul-

tiemployer plan contributions.

(H.R. Rep No. 889, 96th Cong., 2d Sess., Part II 48-49,

reprinted in 1980 U.S. Code Cong. & Ad. News 2918, 3038)

(emphasis supplied). At least two appellate courts have de-

clined to find pre-emption under ERISA based upon these

Congressional statements. See Idaho Plumbers and Pipefitters

Health and Welfare Fund v. United Mechanical Contractors,

Inc., 875 F.2d 212 (9th Cir. 1989) (“The legislative history

indicates that § 1132(g)(2) does not preempt alternative con-

tractual remedies.’’); Sasso v. Vachris, 66 N.Y.2d 28, 484

N.E.2d 1359, 494 N.Y.S.2d 856 (1985). In analyzing this

legislative history, the court in Sasso concluded:

Thus, it is clear that both Houses of Congress viewed

the enforcement amendments of 1980 as setting forth

a floor of federal remedy in the case of delinquent

contributions below which the states could not go

but which did not preempt or supersede state rem-

edies that granted greater protection than that con-

tained in ERISA. Notably, this language in the legis-

lative history also conflicts with the view that

§ 514(a) of ERISA preempts state remedies and pro-

vides additional support for our view that ERISA

was never meant to preempt state enforcement stat-

utes...

Sasso v. Vachris, supra at n.3. See also Plumbers Local 458

Holiday Vacation Fund v. Howard Immel, Inc., 151 Wis.2d

233, 445 N.W.2d 43 (Wis.App. 1989); Retirement Fund of

the Fur Manufacturing Industry v. Getto & Getto, Inc., 714

F. Supp. 651 (S.D.N.Y. 1989).

Congressional statements repeatedly emphasized that Con-

gress enacted § 502(g)(2) and § 515 of ERISA to strengthen

collection of delinquent contributions, as stated by Senator

Williams in commenting on H.R. 3904 and § 502(g)(2) and

§ 515:

The public policy of this legislation to foster the

private multiemployer plan system necessitates that

provision be made to discourage delinquencies and

simplify delinquency collection. The bill imposes a

Federal statutory duty to contribute on employers

that are already obligated to make contributions to

multiemployer plans. . . . The intent of this section

is to promote the prompt payment of contributions

and assist plans in recovering the costs incurred in

connection with delinquencies.

126 Cong. Rec. p. 23288.

Without review by this Court, the most effective collection

remedies used by multiemployer plans will become unavaila-

ble, a result certainly not intended by Congress, which ap-

peared to count upon state law remedies remaining available

to supplement the new federal remedies.’ As the First Circuit

itself acknowledges in its decision, none of the concerns that

motivated Congress to enact § 514(a) of ERISA are implicated

by the pre-emption of state collection remedies." On the contrary,

It appears from the legislative history already quoted that Congress assumegl

thet state law collection remedies would be available to supplement the ngs

federal remedies being added by § 502(g)(2) and § 515 of ERISA. This con-

clusion is reinforced by the following colloquy between Senator Williams and

Matsunaga: “MATSUNAGA. . . . One final question. . The bill directs

the courts in delinquency cases to award a plan which wins judgment not only

the delinquent contributions, but other costs and damages as well. Do these

provisions constitute a maximum as well as a minimum restriction on the relief

available to plans? Mr. WILLIAMS. . . . The provisions as we drafted and

intended them, are 4 minimum but not a maximum.” 126 Cong. Rec. p. 20180.

‘The First Circuit appeared to disregard Congressional intent based upon its

belief that it was bound by dicta in this Court’s decision in Mackey v. Lanier

Collection Agency and Service, Inc., 486 U.S. 825 (1988) (App. A9-A10).

pre-emption of such laws undermines the ability of mul-

tiemployer funds to collect contributions, thereby threatening

the solvency of such plans, precisely the concern of Congress

in passing ERISA and the MPPAA.” It is time the Court re-

viewed this important issue of federal law which threatens to

leave multiemployer plans without effective remedies to collect

contributions owed by employers.

IV. The Court Should Grant Certiorari To Correct The

First Circuit’s Misapplication Of This Court’s Deci-

sion In Mackey v. Lanier Collection Agency & Service,

Inc. And To Resolve The Conflict Among Courts

Over This Issue.

The First Circuit found pre-emption of Massachusetts G.L.

c. 254 based upon footnote 12 of this Court’s decision in

Mackey v. Lanier Collection Agency and Service, Inc., 486

U.S. 825, 838 (1988). There the Court stated:

It is not incongruous to find that Ga. Code Ann.

§ 18-4-20 (Supp. 1987), which provides for garnish-

ment of ERISA welfare benefit plans, escapes pre-

emption under ERISA, while striking down § 18-4-

22.1 — an exception to the general state-law provi-

“The federal cause of action added by Congress in § 515, and the damages

provided by § 502(g)(2), are only useful against a solvent employer. In the

majority of cases, like the case now before the Court, the employer is delinquent

because it is in financial distress or bankruptcy, and multiemployer plans are

generally but one of many creditors seeking to collect against a limited pool

of assets. Unless multiemployer plans have the same state prejudgment security

devices as do other creditors, their ERISA judgments will frequently be uncol-

lectible once obtained, because other creditors were able to obtain liens on

property that they could not. It is remarkable that ERISA-plans are the only

class of creditors on construction projects who, if the First Circuit's decision

is allowed to stand, cannot lien the pool of funds held to pay general contractors,

subcontractors, laborers and material suppliers, and that it is ERISA, the federal

statute Congress intended to be the salvation of employee benefit plans, which

strikes them down.

sion — as pre-empted. While we believe that state-

law garnishment procedures are not pre-empted by

§ 514(a), we also conclude that any state law which

singles out ERISA plans, by express reference, for

special treatment is pre-empted. See part II, supra.

It is this “singling out” that pre-empts the Georgia

anti-garnishment exception.

The First Circuit erroneously interpreted footnote 12 to mean

that even state laws which do not single out ERISA plans for

special treatment are nonetheless pre-empted where the state

law permits ERISA plans to have the same lien rights as other

lien claimants. The First Circuit's reading of Mackey would

preclude states from permitting § 302(c) trusts to use the same

state lien and collection statutes generally applicable and used

by other lien claimants or creditors. It would be incongruous,

and undermine the very protection Congress sought to give

plans by its enactment of ERISA, to read Mackey as meaning

that state creditor and collection laws of general applicability

are pre-empted only when used by ERISA plans and not when

used against ERISA plans. Massachusetts G.L. c. 254 does

not contain any provisions unique to ERISA plans or which

in any way attempt to regulate such plans. Section 4 of Chapter

254 simply permits trustees of § 302(c) funds to file liens in

the same manner as any other lien claimant on privately owned

construction projects in Massachusetts. There is no singling

out of ERISA plans for special treatment.'’ A better reading of

“An amendment to Massachusetts G.L. c. 254, § 4 was enacted in 1984

to provide that § 302 funds have the same lien rights as other persons under

Chapter 254. The amendment was not necessary to the Funds’ enforcement of

such liens. See Peters v. Hartford Accident and Indemnity Company, 377

Mass. 863, 389 N.E.2d 63, 66 (1979) (stating Chapter 254 and complementary

bonding statute provide protection for all creditors of either the original contrac-

tor or of a subcontractor of any degree, for labor performed or furnished, or

for material furnished and actually used in the scope of the general contract.)

The First Circuit's decision to preclude use of a general statute governing

this Court’s decision in Mackey is set forth in Plumbers Local

458 Holiday Vacation Fund v. Howard Immel, Inc., 151

Wis.2d 233, 445 N.W.2d 43, 46 (Wis.App. 1989). There the

court, in describing the Wisconsin statute, declined to find

pre-emption of a general mechanics’ lien statute simply because

ERISA-plans may also be a creditor or claimant under the

statute:

It is a remedy available to a certain class of creditors

that transcends ERISA obligations and concerns.

While one may readily understand court decisions

holding that the collection of ERISA obligations may

not be directed by state law, a decision holding that

no general creditor’s remedies may be utilized to

collect judgments held by ERISA-regulated plans

would be unfathomable. This holding would often

leave funds without the means to enforce judgments.

The First Circuit’s focus on footnote 12 caused it to overlook

the holding of the Court in Mackey. There the Court concluded

that “state-law methods for collecting money judgments must,

aS a general matter, remain undisturbed by ERISA. . . .” /d.

at 834. This Court has also stated that “|s]ome state actions

may affect employee benefit plans in too tenuous, remote, or

peripheral a manner to warrant a finding that the law “relates

to” the plan.” Shaw v. Delta Air Lines, Inc., 463 U.S. 85,

100 n.21 (1983). Chapter 254, which imposes no obligations

upon ERISA plans or in any way regulates them, certainly has

less effect upon ERISA plans than the garnishment statute

found by the Court in Mackey not to be pre-empted by § 514(a)

construction on Massachusetts’ private property is not warranted by footnote

12 of Mackey, even if it were, the First Circuit should merely have struck the

§ 302 clause, and permitted petitioner to prove entitlement under the statute

without it.

of ERISA.'' The Court should grant certiorari to correct the

First Circuit’s misapplication of this Court’s decision in Mac-

key.

V. The Court Should Grant The Writ Of Certiorari To

Review The First Circuit’s Erroneous Decision That

Chapter 254 Is Not A Remedy Included In Rule 64

Of The Federal Rules Of Civil Procedure And Saved

From Pre-emption By § 514(d) of ERISA.

While the First Circuit correctly concluded that Rule 64 of

the Federal Rules of Civil Procedure is a federal law within

the meaning of § 514(d) of ERISA, 29 U.S.C. § 1144(d), it

erroneously held the lien provided by Massachusetts G.L.

c. 254, § 4 was not the type of remedy provided by Rule 64

because it held Chapter 254 would abridge, enlarge or modify

substantive rights in violation of the Rules Enabling Act, 28

U.S.C. § 2072(b) (App. A14-A15).'? The First Circuit's deci-

‘If a general garnishment statute is not pre-empted and can be used by or

against ERISA plans, as the Court concluded in Mackey, the addition of a

reference that ERISA plans can use the statute like any other creditor should

not trigger pre-emption, especially where ERISA plans were permitted to and

did use the state law prior to the reference. See Peters v. Hartford Accident

and Indemnity Company, 377 Mass. 863, 389 N.E. 2d 63, 66 (1979).

* The First Circuit's opinion leaves unanswered how respondent's substantive

rights were affected where, like a garnishee, it is not required to pay anything

out of its own pocket if it complies with the lien. G.L. c. 254, § 4 expressly

provides that the lien is not created until notice has been given to the owner

and that the amount of the lien cannot exceed the amount unpaid under the

owner's contract with the general contractor at the time it receives notice. In

other words, respondent's status is no different than the subject of the garnish-

ment orders found not to be pre-empted by Mackey. Chapter 254 is a lien

equivalent to the garnishment expressly permitted under Rule 64. Only if

respondent ignores the lien will it be liable out of its own property. Thus even

it Chapter 254 affects substantive rights, which is doubtful, it does so only

incidentally. And Federal Rules of Civil Procedure which may incidentally

affect a litigant’s substantive rights do not violate the Rules Enabling Act if

the rule is reasonably necessary to maintain the integrity of the system of rules

Burlington Northern Railroad Co. v. Woods, 480 U.S. 1, 5 (1986).

sion is contrary to decisions of this Court and would effectively

mean that Rule 64 is invalidated by the Rules Enabling Act,

for all state law creditor remedies create substantive remedies.

The Court should grant certiorari to correct this deviation from

this Court’s precedents and to review this important issue of

federal law.

Prior to filing this action, the Petitioner filed an action under

ERISA and § 301(a) of the LMRA against the employer, S.N.

Brown Electrical Corp., in the United States District Court for

the District of Massachusetts, C.A. 90-11395Y. Petitioner also,

pursuant to Rule 64 which permits use of liens “regardless of

whether by state procedure the remedy is ancillary to an action

or must be obtained by an independent action,” filed this action

in state court to enforce a lien under Massachusetts G.L. c. 254.

Section 514(d) of ERISA provides that § 514(a) shall not

“be construed to alter, amend, modify, invalidate, impair, or

supercede any law of the United States.” This Court has applied

§ 514(d) where “[s]tate laws obviously play a significant role

in the enforcement” of the federal law. Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 101 (1983). This Court has ac knowl-

edged the importance of the Federal Rules of Civil Procedure

in providing ERISA plans with state law mechanisms for ob-

taining pre-judgment and post-judgment remedies. In Mackey

v. Lanier Collection Agency & Service, Inc., 486 U.S. 825.

833-834 (1988), the Court stated:

ERISA does noi provide an enforcement mechanism

for collecting judgments won in either of these two

types of actions. Thus, while § 502(d), the “sue and

be sued” provision, contemplates execution of judg-

ments won against plans in civil actions, it does not

provide mechanisms to do so. Moreover, Federal

Rule of Civil Procedure 69(a), which would apply

when either type of civil suit discussed above is

brought against an ERISA plan in federal court, defers

EEE

to state law to provide methods for collecting judg-

ments. . . . Consequently, state-law methods for col-

lecting money judgments must, as a general matter,

remain undisturbed by ERISA... .

(Citations omitted). It follows that state law pre-judgment rem-

edies under Rule 64 are equally as necessary as post judgment

remedies under Rule 69(a). These remedies are essential to allow

ERISA plans to lien property so that it will be available to satisfy

judgments against employers for unpaid contributions.

The First Circuit’s construction of the Rules Enabling Act,

28 U.S.C. § 2072, and Rule 64, to exclude state-law lien

statutes which create or affect “substantive” rights against third

parties would essentially abolish all prejudgment remedies.

Arrest, sequestration, attachment and garnishment, all rem-

edies expressly permitted by Rule 64, also create or affect

“substantive” rights. Thus the First Circuit’s reading would

essentially render Rule 64 void under the Rules Enabling Acct.

Section 2072(b) of the Rules Enabling Act provides that the

Federal Rules of Civil Procedure “shall not abridge, enlarge

or modify any substantive right.” The Court has construed this

to mean that while the federal rules cannot create substantive

rights, Daily Income Fund v. Fox, 464 U.S. 523, 544 n.2

(1984) (STEVENS, J., concurring in judgment), the federal

rules may incorporate state laws which do create or affect

substantive rights. Kamen v. Kemper Financial Services, Inc..

U.S. » LIE S.Ct. 1711, 1717 (1991). In fact, a unani-

mous Court in Kamen concluded that incorporation of state

substantive law into Federal Rule 23.1 and federal common law

may be necessary in order not to violate the Rules Enabling Act,

Suggesting that incorporation of state substantive law into the

federal rule is necessary to comply with 28 U.S.C. § 2072(b)."°

The Court stated in Kamen that while Rule 23.1 contemplates that a

shareholder make a pre-complaint demand upon the board of directors, it cannot

As stated by the Court:

It is clear that the contours of the demand requirement

in a derivative action founded on the ICA are gov-

erned by federal law. . . . It does not follow, how-

ever, that the content of such rule must be wholly

the product of a federal court’s own devising. Our

cases indicate that a court should endeavor to fill the

interstices of federal remedial schemes with uniform

federal rules only when the scheme in question evi-

dences a distinct need for nationwide legal standards,

. .. or when express provisions in analogous statutory

schemes embody congressional policy choices read-

ily applicable to the matter at hand,. . . . Otherwise,

we have indicated that federal courts should “incor-

porat[e] [state law] as the federal rule of decision,”

unless “application of [the particular] state law [in

question] would frustrate specific objectives of the

federal programs.” . . . The presumption that state

law should be incorporated into federal common law

is particularly strong in areas in which private parties

have entered legal relationships with the expectation

that their rights and obligations would be governed

by state-law standards. See id. , at 728-729, 739-740,

99 S.Ct. at 1458-1459, 1464-1465 (commercial law):

Reconstruction Finance Corp. v. Beaver County,

328 U.S. 204, 210, 66 S.Ct. 992, 995, 90 L.Ed.

1172 (1946) (property law)... .

Id. at 1717. Thus not only is incorporation of state substantive

law the “presumption” under the Federal Rules of Civil Pro-

create a demand requirement because to do so would abridge, enlarge or modify

a substantive right in violation of the Rules Enabling Act. /d. at 1716. Having

said this, the Court nonetheless concluded that it would be proper to incorporate

into Rule 23.1 as federal common law state substantive law concerning a

futility exception to the pre-complaint demand requirement.

cedure, this Court has specifically noted that, with respect to

Rule 64, it is not only the presumption but the very rule itself.

Granny Goose Foods, Inc. v. Brotherhood of Teamsters &

Auto Truck Drivers, 415 U.S. 423, 436 n.10 (1974). There

the Court recognized Rule 64 as the embodiment

. . Of long-settled federal law providing that in all

cases in federal court, whether or not removed from

State court, state law is incorporated to determine

the availability of prejudgment remedies for the sei-

zure of person or property to secure satisfaction of

the judgment ultimately entered. /d.

See also Huron Holding Corp. v. Lincoln Mine Operating

Co., 312 U.S. 183, 188 (1941) (applying New York law to

test validity of attachment); Kend v. Chroma-Glo, Inc., 51

F.R.D. 547, 549 (D. Minn. 1970), aff’d, 478 F.2d 198 (8th

Cir. 1973) (stating that rule 64 embodies the holding of this

Court's decision in Erie Railroad Co. v. Tompkins, 304 U.S.

64 (1938), in that it incorporates state pre-judgment creditor

remedies for use by federal courts); See generally MOORE’S

FEDERAL PRACTICE, par. 64.03 at p. 64-8 (1983) (“Rules

64 and 69 adopt, respectively, the former practice at law de-

aling with attachment, and other provisional remedies, and the

execution of money judgments, but specifically provide that

conformity to state law shall be to the law existing at the time

the remedy is sought.”).'*

‘It is for this reason that courts in considering whether application of a

federal rule would violate § 2072(b) have not focused upon whether state substan-

tive law can permissibly be incorporated, which they have taken for granted, but

instead whether state law creates the night claimed. See Fontenot v. Roach, 120

F. Supp. 788, 790-791 (E.D. Tenn. 1954) (holding Rule 14 does not permit

addition of third party defendant for nght of contribution where Tennessee law

has not created nght of contribution until defendant has first satisfied the judgment);

Brennan v. Silvergate Dist. Lodge No. 50, Inter. Assoc. of Machinists and Aeros-

pace Workers, AFL-CIO, 503 F.2d 800, 804 (9th Cir. 1974) (in deciding right

to intervention under Rule 24, which is a substantive night, court must first

determine if intervention is contemplated by federal statute at issue)

The First Circuit deviated from this Court’s precedents when

it concluded that Rule 64 could not incorporate state laws

which create substantive rights. Such a reading of the Rules

Enabling Act is contrary to this Court’s precedents which per-

mit the Federal Rules of Civil Procedure to incorporate state

substantive laws into the rules as federal common law. Further-

more, Rule 64 would be vitiated by denying use of state com-

mercial and creditor statutes which create or affect substantive

rights.'*

The prohibition contained in § 2072(b) is only that the federal

court cannot abridge, enlarge or modify a substantive right. It

does not preclude the rule from recognizing or relying upon

the state substantive law already in existence. In other words.

Rule 64 can make use of state laws which create substantive

rights if such substantive right is already recognized under

State law at the time of the federal action. Rule 64 is a pro-

cedural means to permit use of state law remedies as “available

under the circumstances and in the manner provided by the

law of the state in which the district court is held. existing at

the time the remedy is sought. . . .” Thus only if the lien

Statute, arrest, sequestration or other corresponding or equiva-

State law mechanisms such as arrest, attachment. garnishment, replevin,

sequestration — mechanisms listed as available in Rule 64 — are generally

considered to affect substantive rights. See Fuentes v. Shevin. 407 U.S. 67

(1972) (stating in replevin action that persons whose state law property “rights”

are affected are entitled to notice and a hearing prior to seizure of the property);

Ospina v. Vanelli, 34 F.R.D. 151, 152 (D. Minn. 1964) (stating that Rule 64

authorizes federal courts “to adopt both the substantive and procedural law of

Minnesota in regard to garnishment proceedings.) The arrest and correspond-

ing deprivation of liberty is clearly an abridgement of a fundamental substantive

right. Garnishment orders to pay over property arguably creates a substantive

right against another. If a bank, for example, ignores the garnishment order,

it must still make payment of the monies from its own property. Furthermore,

an attachment creates a lien, which in turn creates priorities among various

lien claimants. Recognition of any lien has the potential of depriving some

other person, including the judgment debtor, of a property right. State law

prejudgment remedies are subject to procedural due process precisely because

they affect substantive property or liberty rights of individuals.

lent remedy were not recognized under the state law in which

the district court is held, and the district court nonetheless

authorized the lien or garnishment of property or the arrest of

a person, would the use of Rule 64 abridge, enlarge or modify

a substantive right.

Rules 64 and 69(a) of the Federal Rules of Civil Procedure

are unique among the Federal Rules of Civil Procedure, in

that they specifically incorporate and make use of state creditor

law, and thereby fill an important function by compensating

for the general absence of pre-judgment and post-judgment

remedies in federal statutes. This Court has already determined

in Mackey that ERISA is just such a statute in which Congress

chose not include pre-judgment and post-judgment remedies

but to rely upon available state law remedies.

The First Circuit’s conclusion that Rule 64 does not con-

template use of state laws which establish substantive rights

is contrary to the express language of Rule 64. The effect of

the First Circuit’s holding is to declare Rule 64 invalid. The

impairment of this federal law and the resulting effect of

§ 514(d) of ERISA is an important question of federal law

which should be resolved by this Court.

Without this Court’s review, the First Circuit’s decision will

leave ERISA plans with the ability to obtain judgments against

employers but without the means other creditors have to secure

and collect upon such judgments. This Court should, therefore.

grant certiorari to restore to ERISA plans the ability to secure

and collect on their judgments.

ee en

VI. The Pre-emption Of State Mechanics’ Lien Statutes

Undermines And Impairs Federal Labor And Pension

Laws Which Have Long Depended On Mechanics’

Liens, Bonding And Other State Statutes To Enforce

The Collective Bargaining Obligations Of Employers,

And Are Therefore Saved From Pre-emption By

§ 514(d) of ERISA.

Prior to the enactment of § 515 of ERISA, this Court had

recognized that state law may be used under § 301(a) of the

LMRA where compatible with the purpose of § 301(a). See

Textile Workers Union of America v. Lincoln Mills of Ala.,

353 U.S. 448, 456-457 (1957). There the Court stated: “But

state law, if compatible with the purpose of § 301, may be

resorted to in order to find the rule that will best effectuate

the federal policy. . . . Any state law applied, however, will

be absorbed as federal law and will not be an independent

source of private rights.” Section 301(a) permits trustees of

§ 302(c) funds to sue to enforce collective bargaining agree-

ments, to use state laws to collect contributions and to use

state collection mechanisms. See Charles Dowd Box Co. v.

Courtney, 368 U.S. 502 (1962); Schneider Moving and Storage

Company v. Robbins, 466 U.S. 364 (1984).

When § 515 of ERISA was added to provide an additional

enforcement mechanism, Congress specifically reserved other

collection remedies under federal or state law. See Issue III,

supra. Pre-emption of state mechanics’ lien laws would impair

enforcement of § 515 of ERISA and § 301(a) of the LMRA

and undermine the purposes and protections Congress intended

for ERISA plans when it enacted ERISA. As in Shaw v. Delta

Air Lines, Inc., 463 U.S. 85 (1983), given the importance of

the state laws to the federal scheme, to make the federal rem-

edies exclusive would so disrupt the enforcement scheme as

to modify and impair federal law within the meaning of § 514(d).

————

The First Circuit’s decision ignores the historical role state

laws, and specifically state mechanics’ lien laws, have had in

the enforcement of § 515 of ERISA and § 301(a) of the

LMRA.'* Congressional statements that federal and state col-

lection remedies be left undisturbed by ERISA, this Court’s

decisions under § 301(a) of the LMRA, and § 514(d) of ERISA

prove that mechanics’ lien laws are not to be pre-empted by

ERISA. This Court should grant certiorari to restore the full

use of § 515 and § 301(a) through state collection remedies

as Congress intended.

CONCLUSION

For the foregoing reasons the petitioner requests that a writ

of certiorari issue to review the judgment of the United States

Court of Appeals for the First Circuit.

Respectfully submitted,

KATHERINE A. HESSE

Counsel of Record

DAVID W. HEALEY

MURPHY, HESSE, TOOMEY ano LEHANE

300 Crown Colony Drive

Suite 410

Quincy, Massachusetts 02269-9126

(617) 479-5000

February 14, 1992

*Mechanics’ lien law remedies have historically served to secure the payment

of wages owed to laborers and mechanics engaged in the construction industry.

Lien rights have existed in Massachusetts since its first law was enacted in

1819. Friedman v. County of Hampden, 204 Mass. 494, 90 N.E. 851, 855

(1910). “The earliest lien law was that of Maryland. Adopted in 1791 at the

request of Thomas Jefferson and James Madison, it was designed to stimulate

construction in Washington, D.C.” Bonds, Liens & Insurance, Federal Publi-

cations, Inc., p. 79 (1986)

TABLE OF CONTENTS

APPENDIX A

Decision of the United States Court of Appeals for

the First Circuit dated November 19, 1991

APPENDIX B

Judgment dated November 19, 1991

APPENDIX C

Memorandum and Order on Plaintiff's Motion to

Remand and Defendant’s Motion to Dismiss the

Complaint dated March 1, 1991

APPENDIX D

Judgment dated March 5, 1991

APPENDIX E

Complaint dated July 16, 1990

APPENDIX F

Letter dated January 30, 1991 from Robert J. Doyle,

United States Department of Labor

APPENDIX G

Letter dated October 26, 1984 from Elliot I. Danie},

United States Department of Labor

APPENDIX H

Pertinent Statutes and Rules

A2??

A30

A3l

A42

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A52

APPENDIX A

United States Court of Appeals

For the First Circuit

No. 91-1318

JAMES L. McCOY, ADMINISTRATOR OF THE

ELECTRICAL WORKERS TRUST FUNDS, ETC.,

Plaintiff, Appellant,

MASSACHUSETTS INSTITUTE OF TECHNOLOGY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Walter Jay Skinner, U.S. District Judge |

Before

Breyer, Chief Judge,

Aldrich and Selya, Circuit Judges.

Katherine A. Hesse, with whom David W. Healey, and

Murphy, Hesse, Toomey and Lehane were on brief for appel-

lant.

Corwin & Corwin, Lisa A. Harrod and Joseph M. Corwin

on brief for David R. McGinness, Administrator for Trustees

of Various Funds (Plumbers and Gasfitters Local Union No.

12), amicus curiae.

Bruce D. Burns, with whom Jeffrey Swope, Harvey

Nosowitz and Palmer & Dodge were on brief for appellee.

November 19, 199]

SELYA, Circuit Judge. This appeal calls upon us to deter-

mine an issue of first impression: whether the Employee Retire-

ment Income Security Act of 1974 (ERISA), 29 U.S.C. §§

1001-1461 (1988), preempts the operation of a Massachusetts

mechanics’ lien statute, Mass. Gen. L. ch. 254 (1990), as it

concerns the rights of employee benefit plans. The district

court dismissed the plaintiff's suit, finding preemption. McCoy

Vv. Massachusetts Institute of Technology, 760 F. Supp. 12 (D.

Mass. 1991). We affirm.

I. BACKGROUND

Because the district court's order of dismissal was entered

pursuant to Fed. R. Civ. P. 12(b)(6), we must accept as true

the well-pleaded factual averments contained in the complaint,

while at the same time drawing all reasonable inferences there-

from in the appellant's favor. See Correa-Martinez v. Arril-

laga-Belendez, 903 F.2d 49, 51 (Ist Cir. 1990); Dartmouth

Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989).

The salient facts are susceptible to succinct summarization.

Plaintiff-appellant James L. McCoy is the administrator of

several different trust funds (the Funds) set up by Local 103

of the International Brotherhood of Electrical Workers. The

Funds, through McCoy, brought suit in state court to enforce

a lien against property owned by the defendant Massachusetts

Institute of Technology (MIT). Neither the Funds nor the union

had any direct relationship with MIT. Rather, the Funds prem-

ised their action on a Massachusetts law allowing the trustee

of an employee benefit plan to assert a lien against property

improved through the labor of plan participants in order to

collect overdue benefit contributions.

The Funds alleged, in particular, that S.N. Brown Electrical

Corporation (Brown) was the employer of some plan partici-

pants; that Brown, as a subcontractor, employed these persons

to effect improvements to property owned by MIT and located

at 143-153 Albany Street, Cambridge, Massachusetts; that

Brown, in derogation of its obligations under a collective bar-

gaining agreement, neglected to make employee benefit con-

tributions attributable to the work; and that the Funds were,

therefore, entitled to look to MIT’s interest in the Albany

Street property as a means of recouping the resultant shortfall.

Invoking 28 U.S.C. § 1441 (1988), MIT removed the case

to the district court based on federal question jurisdiction. '

MIT then moved to dismiss, claiming preemption. The district

court agreed, McCoy, 760 F. Supp. at 14-16, and this appeal

ensued.

Il. STANDARD OF REVIEW

We afford plenary review to orders of the district court

granting motions to dismiss under Civil Rule 12(b)(6). See

Miranda v. Ponce Fed. Bank, F.2d ; (Ist Cir.

1991) [No. 90-2214, slip op. at 3]; Kale v. Combined Ins.

Co., 924 F.2d 1161, 1165 (1st Cir.), cert. denied, S. Ct.

(1991). The same benchmarks apply in the exercise of

appellate jurisdiction as in the nisi prius court. It follows that,

“{iJn the Rule 12(b)(6) milieu, an appellate court . . . may

affirm a dismissal for failure to state a claim only if it clearly

appears, according to the facts alleged, that the plaintiff cannot

recover on any viable theory.” Correa-Martinez, 903 F.2d at 52.

The well-pleaded complaint rule normally prohibits the invocation of federal

question jurisdiction if no issue of federal law appears on the face of a complaint.

Gully v. First Nat'l Bank, 299 U.S. 109, 113 (1936); Louisville & Nashville

R.R. v. Mottley, 211 U.S. 149, 152 (1908). Because federal preemption is

ordinarily raised as a defense to a suit, it will often not appear on the face of

a well-pleaded complaint and, accordingly, the possibility of preemption does

not usually authorize removal. See Metropolitan Life Ins. Co v. Taylor, 481

U.S. 58, 63 (1987). But the rule, like most legal rules, is not without its

recognized exceptions. A claim of ERISA preemption animates one such ex-

ception, id. at 67, on the basis that “Congress may_so completely pre-empt a

particular area [of law] that any civil complaint raising this select group of

claims is necessarily federal in character.” /d. at 63-64. Hence, the court below

properly asserted removal jurisdiction despite the fact that the complaint did

not explicitly delineate a federal question.

vv ee

Iii. THE STATE STATUTE

To place the issues on appeal into perspective, it is necessary

first to give the reader a glimpse of the Massachusetts

mechanics’ lien law. The central provision of the lien law

States:

A person to whom a debt is due for personal labor

performed in the erection, alteration, repair or re-

moval of a building or structure upon land, by virtue

of an agreement with, or by consent of, the owner

of such building or structure, or of a person having

authority from or rightfully acting for such owner in

procuring or furnishing such labor, shall, under the

provisions of this chapter, other than sections three

and four, have a lien upon such building or structure

and upon the interest of the owner thereof in the lot

of land upon which it is situated, for not more than

eighteen days’ work actually performed during the

forty days next prior to his filing a statement as

provided in section eight.

For purposes of this chapter, a person shall include

any employee of any employer and the trustee or

trustees of any fund or funds, established pursuant

to section 302 of the Taft Hartley Law (29 USC

186), providing coverage or benefits to said person.

The trustee or trustees of any such fund or funds

shall have all the liens under this chapter that any

person has. The trustee or trustees shall also have

the right to enforce said liens pursuant to this chapter.

Mass. Gen. L. ch. 254, § 1. The statute provides for notices

referable to liens, see, e.g., id. §§ 2-4, and specifically con-

templates that, where subcontractors are involved, certain lien

notices “may also be filed by the trustee or trustees of a fund

or funds, described in section one, providing coverage or ben-

efits to any person performing labor under a written contract

with a contractor, or with a subcontractor of such contractor.”

Id. § 4. In succeeding sections, the lien law limns the mechanics

of enforcement. Generally, a lien is enforced by means of a

civil action brought by the lienor against the property owner

in the county or judicial district where the property lies. Jd. § 5.

The remaining provisions of the lien law are not germane

to our discussion.

IV. ANALYSIS

We elect to divide our perlustration of the merits into three

segments. Initially, we review the general principles and

policies pertaining to preemption in the ERISA context. We

then address the chief argument advanced in support of reversal.

Finally, we comment upon certain secondary theses hawked

by the Funds.

A. ERISA Preemption: An Overview.

Out of respect for the distinct spheres of authority inherent

in our federal system, preemption of state law is generally

disfavored. See, e.g., Alessi v. Raybestos-Manhattan, Inc.,

451 U.S. 504, 522 (1981). But, this presumption is not inviol-

abie. If “the nature of the regulated subject matter permits no

other conclusion, or . . . Congress has unmistakably so or-

dained,” federal preemption of state law is mandated under

the Supremacy Clause. Florida Lime & Avocado Growers,

Inc. v. Paul, 373 U.S. 132, 142 (1963).

ERISA preemption is, as a general matter, extensive in its

scope. ERISA governs “employee benefit plans.” 29 U.S.C.

§ 1001. As part of the statutory structure established to regulate

such plans, Congress formulated a sweeping preemption

clause. This clause, ERISA § 514(a) commands that ERISA

“shall supersede any and all State laws insofar as they may now

or hereafter relate to any employee benefit plan.” 29 U.S.C.

§ 1144(a). For preemption purposes, “State laws” are “all

laws, decisions, rules, regulations, or other State action having

the effect of law.” 29 U.S.C. § 1144(c)(1).

Under the provisions of section 514(a), if a state law “relates

to” an employee benefit plan, it is preempted. “A law ‘relates

to’ an employee benefit plan, in the normal sense of the phrase,

if it has a connection with or reference to such a plan.” Shaw

v. Delta Air Lines, Inc., 463 U.S. 85, 96-97 (1983). “[A] state

law may ‘relate to’ a benefit plan, and thereby be preempted,

even if the law is not specifically designed to affect such plans,

or the effect is only indirect.” Ingersoll-Rand Co. v. McClendon,

111 S. Ct. 478, 483 (1990); see also Pilot Life Ins. Co. v.

Dedeaux, 481 U.S. 41, 47-48 (1987); Shaw, 463 U.S. at 98.

At the bottom line “the question whether a certain state

action is pre-empted by federal law is one of congressional

intent.” Allis-Chalmers Corp. v. Lueck, 471 U.S. 202. 208

(1985); Malone v. White Motor Corp., 435 U.S. 497, 504

(1978). While fathoming congressional intent can sometimes

be an imprecise venture, section 514(a)’s bold and capacious

language provides a particularly incisive manifestation of con-

gressional purpose, thus easing the judicial chore. See Inger-

soll-Rand, 111 S. Ct. at 482 (“Where, as here, Congress has

expressly included a broadly worded pre-emption provision in

a comprehensive statute such as ERISA, our task of discerning

congressional intent is considerably simplified.”); Shaw, 463

U.S. at 96 (similar).

In considering Congress’ intent in the ERISA context, all

roads lead to Rome. The legislative history of section 514(a),

like its language, counsels against a crabbed interpretation of

the statute. As the Shaw Court observed, the bill that became

ERISA originally contained a much narrower preemption clause

that Congress rewrote more panoramically, indicating “that

the section's pre-emptive scope was as broad as its language.”

Shaw, 463 U.S. at 98. Senator Williams, a principal sponsor

of the bill, stated that the ERISA preemption cause, in its final

form, was “intended to apply in its broadest sense to all actions

of State or local governments, or any instrumentality thereof,

which have the force or effect of law.” 120 Cong. Rec. 29,933

(1974).

Exhibiting great deference to the statutory language and

legislative history, the Court has consistently acknowledged

the far-ranging scope of section 514(a)’s phraseology and in-

terpreted section 514(a) expansively, See, e.g., Ingersoll-

Rand, 111 S.Ct. at 482; Pilot Life, 481 U.S. at 44-47; Shaw,

463 U.S. at 96-100; see also FMC Corp. v. Holliday, \\1

S. Ct. 403, 407 (1990) (observing that “[ERISA’s] pre-emp-

tion cause is conspicuous for its breadth”); Franchise Tax Bd.

v. Construction Laborers Vacation Trust, 463 U.S. 1, 24.26

(1983) (describing ERISA’s commodious preemption provi-

sion as “virtually unique’’).

Despite the fact that section 514(a) casts a long shadow,

ERISA preemption is not limitless. “Some state actions may

affect employee benefit plans in too tenuous, remote, or

peripheral a manner to warrant a finding that the law ‘relates

to’ the plan.” Shaw, 463 U.S. at 100 n.21; see also Retirement

Fund Trust, Etc. v. Franchise Tax Bd., 909 F.2d 1266, 1281

(9th Cir. 1990) (ERISA held not to preempt a state income

tax levy); Aetna Life Ins. Co. v. Borges, 869 F.2d 142, 147

(2d Cir.) (ERISA held not to preempt a state escheat law),

cert. denied, 110 S. Ct. 57 (1989); Firestone Tire & Rubber

Co. v. Neusser, 810 F.2d 550, 556 (6th Cir. 1987) (ERISA

held not to preempt a municipal income tax of general applica-

bility); Rebaldo v. Cuomo, 749 F.2d 133, 139 (2d Cir. 1984)

(ERISA held not to preempt a state law regulating hospital

fees), cert. denied, 472 U.S. 1008 (1985). By the same token,

ERISA does not preempt state judgment-enforcing laws of

general application. Thus, in Mackey v. Lanier Collection

Agency & Serv., Inc., 486 U.S. 825 (1988), a state’s general

garnishment statute evaded preemption even when used to

satisfy judgments against ERISA plan participants. See id. at

841.

We do not pretend that it is always easy to draw the line

separating those state statutes that fall prey to ERISA preemp-

tion from those that stand fast. But, to the extent that gray

areas exist, the policy rationales that permeate ERISA and its

preemption can afford sound guidance in determining what

state laws may survive. See Fort Halifax Packing Co. v. Coyne,

482 U.S. 1, 15 (1987). The drafters of section 514(a) wished,

among other things, to protect the rights and expectations of

plan participants, /ngersoll-Rand, 111 S. Ct. at 482, and

to ensure that plans and plan sponsors would be

subject to a uniform body of benefit law; the goal

was to minimize the administrative and financial bur-

den of complying with conflicting directives among

States or between States and the Federal Govern-

ment. Otherwise, the inefficiencies created could

work to the detriment of plan beneficiaries.

Id. at 484. Indeed, the Court has often justified section 514(a)’s

elongated reach by citing Congress’ desire to avoid a “patch-

work scheme of regulation [which] would introduce consider-

able inefficiencies in benefit program operation.” Fort Halifax,

482 U.S. at 11; see also FMC, 111 S. Ct. at 408-09; Shaw.

463 U.S. at 10S.

B. ERISA Preemption: The Doctrine As Applied.

Based on the policy considerations described above, the

Funds have a plausible argument that the mechanics’ lien law

here at issue should not succumb to section 514(a). After all,

the Massachusetts statute grants employee benefit plans access

not only to a further mechanism by which they can collect

outstanding debts, but also to a new (and perhaps deeper)

pocket from which monies owed may be repaid. Improving a

fund’s collection prospects seems, at first blush, fully conson-

ant with Congress’ purpose of safeguarding participants’ rights

and expectations. Furthermore, the lien law advantages em-

ployee benefit plans without increasing “the administrative and

financial burden of complying with conflicting directives

among States or between States and the Federal Government”

— a factor which “could work to the detriment of plan benefi-

ciaries.”” Ingersoll-Rand, 111 S. Ct. at 484. And, it is hard to

see how use of Mass. Gen. L. ch. 254 might interfere with

establishing “a uniform body of benefit law,” id., to any greater

degree than would use of a state garnishment statute (as permit-

ted in Mackey). In this sense, then, allowing trustees of covered

plans to utilize the lien law at their own volition would simply

add an arrow to an already well-stocked quiver. Coming at

the same point from another direction, if the trustees of an

ERISA regulated plan choose to impose and enforce a lien, it

is fair to presume that, as fiduciaries, they will use the proceeds

to the betterment of plan beneficiaries. So viewed, the lien

law is a help, not a hindrance, to ERISA-regulated plans.

But, benefit is not the relevant test. Notwithstanding the

synchronicity between the policy considerations that undergird

ERISA and the Funds’ attempted utilization of the Massachu-

setts mechanics’ lien law, fidelity to precedent compels a con-

clusion that any such use of the lien law is preempted. We

explain briefly.

The Court has been especially skeptical of state laws which,

like the Massachusetts lien law, specifically refer to ERISA

plans and grant them special treatment. See Mackey, 486 U.S.

at 829 (stating that the Court has “virtually taken it for granted

that state laws which are specifically designed to affect em-

ployee benefit plans are pre-empted under 514(a)’’) (quotation

Al0

marks omitted). The vice in such laws is not palliated by a

state legislature’s good intentions or by a comfortable fit be-

tween a State statute and ERISA’s overall aims. To the exact

contrary, the Court has made it pellucidly clear that section

514(a) “was intended to displace all state laws that fall within

its sphere, even including state laws that are consistent with

ERISA’s substantive requirements.” Metropolitan Life Ins. Co.

v. Massachusetts, 471 U.S. 724, 739 (1985); accord Mackey,

486 U.S. at 830. Hence, “any state law which singles out

ERISA plans, by express reference; for special treatment is

pre-empted.” /d. at 838 n.12 (emphasis in original). This

means, in short, that state laws which expressly relate to em-

ployee benefit plans are necessarily grist for the preemption

mill.

To be sure, footnote 12 in Mackey is dictum — but it is

considered dictum. We are, therefore, both unable to ignore

it and unwilling to do so. We agree with Professor Wright

that, in evaluating dicta, “[m]Juch depends on the character of

the dictum. Mere obiter may be entitled to little weight, while

a carefully considered statement . . ., though technically dic-

tum, must carry great weight, and may even. . . be regarded

as conclusive.” Charles A. Wright, The Law of Federal Courts

§ 58, at 374 (4th ed. 1983). And here, the earmarks of careful

consideration are readily apparent. In our judgment, it would

be blinking reality to pass off Mackey’s footnote 12 as a chance

statement. Justice White’s emphasizing of the word “any” by

placing it in italics eliminates even the remote possibility that

footnote 12 was casually constructed.

This conclusion draws the grease from the goose. We think

that federal appellate courts are bound by the Supreme Court's

considered dicta almost as firmly as by the Court's outright

holdings, particularly when, as here, a dictum is of recent

vintage and not enfeebled by any subsequent statement. Cf.,

e.g., Faucher v. Federal Election Comm'n, 928 F.2d 468.

All

470 (ist Cir.) (court of appeals cannot assume the Supreme

Court “proclaims the law lightly” when it authors considered

dictum), cert. denied, Ss. Gh. (1991). If lower courts

felt free to limit Supreme Court opinions precisely to the facts

of each case, then our system of jurisprudence would be in

shambles, with litigants, lawyers, and legislatures left to grope

aimlessly for some semblance of reliable guidance. Nor are

we alone in voicing our healthy regard for dictum that appears

to have been carefully considered. See, e.g., Nichol v. Pullman

Standard, Inc., 889 F.2d 115, 120 n.8 (7th Cir. 1989) (court

of appeals “should respect considered Supreme Court dicta”);

United States v. Underwood, 7\7 F.2d 482, 486 (9th Cir.

1983) (court of appeals not at liberty to “disregard . .

guidelines” established by Supreme Court, albeit through

dicta), cert. denied, 465 U.S. 1036 (1984); United States v.

Bell, 524 F.2d 202, 206 (2d Cir. 1975) (considered dictum

“must be given considerable weight and can not be ignored in

the resolution of [a] close question”).

If we are to turn corners squarely, the rest follows inexora-

bly. In respect to the scope of ERISA preemption, we have

no real option except to conclude that the High Court meant

exactly what it wrote in footnote 12 of Mackey. Therefore,

we are constrained to treat the statement as authoritative and

to obey its command.

Given this preface, there can be no question about the closing

chapter. The statute at issue expressly singles out ERISA plans

for special treatment. The second paragraph of Mass. Gen.

L. ch. 254, § 1 provides, inter alia, that the mechanics’ lien

law shall inure to the advantage of “the trustee or trustees of

any fund or funds, established pursuant to section 302 of the

Taft Hartley Law (29 USC 186), providing coverage or benefits

to [an employee].” Similarly, the law provides for the filing

of certain lien-related notices “by the trustee or trustees of a fund

or funds, described in section one, providing coverage or bene-

Al2

fits to any person performing labor.” /d. § 4. Under ERISA’s

staple definitions, the term “employee benefit plan” (or simply

“plan”) includes “employee welfare benefit plan[s].” 29

U.S.C. § 1002(3). A plan fits within this integument if it is

established, inter alia, “for the purpose of providing for its

participants or their beneficiaries . . . any benefit described

in [29 U.S.C. § 186(c)].” Id. § 1002(1)(B). Thus, any plan

that grants benefits under 29 U.S.C. § 186, which is another

way of describing any plan that grants benefits under section

302 of the Taft-Hartley Act, is by definition an ERISA plan.’

Put bluntly, by singling out “section 302” plans for special

treatment, the Massachusetts mechanics’ lien law, in the same

stroke, singles out ERISA plans for special treatment. It is.

therefore, preempted as it applies to ERISA-regulated plans.

In light of this analysis, we find it unsurprising that, in

analogous cases, several of our sister circuits have ruled in

favor of preemption. The Fifth Circuit, in a strikingly similar

case involving Louisiana’s mechanics’ lien statute, La. Rev.

Stat. Ann. §§ 9:4801-9:4823 (West 1983), held that ERISA

preempted the law’s operation. See Jron Workers Mid-South

Pension Fund v. Terotechnology Corp., 891 F.2d 548, 556

(Sth Cir.), cert. denied, 110 S. Ct. 3272 (1990). The Third

Circuit found preemption in a case involving Pennsylvania's

wage payment and collection law, Pa. Stat. Ann. tit. 43. §§

260.1-260.12 (Supp. 1985). See McMahon v. McDowell, 794

F.2d 100, 105-08 (3d Cir.), cert. denied, 479 U.S. 971 (1986).

We note in passing that, although there is no legitimate doubt as to what

the state legislature intended when it wrote the words “established pursuant to

section 302 of the Taft Hartley Law (29 USC 186),” the statute seems inartfully

phrased. Section 302 is not a provision “pursuant to” which a fund can be

established. Rather, section 302 regulates financial transactions between em-

ployers and employees (or unions). See 29 U.S.C. § 186(a)-(b) ( 1988). In the

course of such regulation, section 302 describes certain employee benefits. /d

§ 186(c). It is these employee benefits that both the Massachusetts law, Mass

Gen. L. Ch. 254, §§ 1, 4, and ERISA, 29 U.S.C. § 1002(1)(B). incorporate

by reference.

Al3

The Ninth Circuit recently decided that a California lien law

which advantaged trusts established to receive employer’s con-

tributions “on account of fringe benefits supplemental to a

wage agreement,” Cal. Civ. Code § 3111 (West 1974), was

preempted by ERISA. See Sturgis v. Herman Miller, Inc..,

F.2d ‘ (9th Cir. 1991) [No. 90-15054, slip op. at

12286-89]. The court remarked that, while the California law

did not expressly refer to ERISA plans, “it need not do so

where the statute obviously singles out ERISA plans.” /d. at

[slip op. at 12289]. Since the state law accorded “ERISA plans

a unique procedural benefit by conferring upon them special

mechanic lien rights to collect delinquent contributions,” it

was preempted. /d. Given the difference in language between

the Massachusetts and California statutes — a difference which

tilts toward preemption, not away from it — the same result

must obtain here. '

We need not paint the lily. State statutes which expressly

grant preferential benefits to ERISA plans cannot withstand

the preemptive force of ERISA § 514(a). Inasmuch as Mass.

Gen. L. ch. 254 is such a statute, the Funds’ use of the lien

created thereby is preempted.

‘As the appellant accurately observes, state appellate courts have. on occa-

sion, espoused a seemingly contrary view. See, e.g., Plumbers Local 458

Holiday Vacation Fund v. Howard Immel, Inc., 445 N.W.2d 43 (Wis. 1989)

(declining to find Wisconsin lien law preempted). The better-reasoned state

court decisions, however, are harmonious with the federal precedents. See,

¢.g., Carpenters §. Cal. Admin. Corp. v. El Capitan Dev. Co., 811 P.2d 296

(Cal. 1991) (en banc), petition for cert. filed (U.S. Sept. 18, 1991) (No

91-480), Prestridge v. Shinault, 552 So.2d 643 (La. Ct. App. 1989), writ

denied, 559 So.2d 131 (La. 1990). A decision of the New York Court of

Appeals, Sasso v. Vachris, 484 N.E.2d 1359 (N.Y. 1985), much ballyhooed

by the Funds, antedates Mackey and Ingersoll-Rand, and its reasoning, which

has been called into question by at least one other circuit court, see Local

Union 598, Plumbers & Pipefitters Industry Journeymen & Apprentices Train-

ing Fund v. J.A. Jones Constr. Co. , 846 F.2d 1213, 1219 n.8 (9th Cir.). aff'd

mem., 488 U.S. 881 (1988), is suspect. At any rate, Sasso involves a signific-

antly different statutory scheme and is largely inapposite for our purposes

Al4

C. Other Arguments.

The Funds make two other attempts to avoid a preemptive

strike. Neither effort brings them out of range.

1. Rule 64. The Funds asseverate that the use of the Mas-

sachusetts mechanics’ lien law is authorized by Fed. R. Civ.

P. 64* and, therefore, is salvaged from preemption by section

514(d) of ERISA, 29 U.S.C. 1144(d), which provides that

ERISA shall not “be construed to alter, amend, modify, invali-

date, impair, or supersede any law of the United States .. .

or any rule or regulation issued under any such law.” The

asseveration cannot survive the mildest of scrutiny.

In order to trigger section 514(d), some alteration of a federal

law must be in prospect. The Federal Rules of Civil Procedure

can properly be regarded as coming under this rubric since

they have the same force and effect as federal statutory law.

See United States v. St. Paul Mercury Ins. Co., 361 F.2d 838,

839 (Sth Cir.), cert. denied, 385 U.S. 971 (1966); Laker Air-

ways Lid. vy. Pan Am. World Airways, 103 F.R.D. 42, 50

n.19 (D.D.C. 1984). Nevertheless, the Civil Rules cannot

roam at will. The Rules Enabling Act, 28 U.S.C. § 2072

(1988), ordains that the Civil Rules must relate to “practice

or procedure.” /d. § 2072(a); see also Answering Serv. Inc. v.

‘The rule provides in pertinent part that, during the course of an action in

federal court,

all remedies providing for seizure of person or property for the

purpose of securing satisfaction of the judgment ultimately to be

entered in the action are available under the circumstances and in

the manner provided by the law of the state in which the district

court is held, existing at the time the remedy is sought, subject

to [certain qualifications not germane to the case at hand]. The

remedies thus available include arrest, attachment, garnishment,

replevin, sequestration, and other corresponding or equivalent rem-

edies, however designated and regardless of whether by state pro-

cedure the remedy is ancillary to an action or must be obtained

by an independent action.

Fed. R. Civ. P. 64.

Al5

Egan, 728 F.2d 1500, 1506 (D.C. Cir. 1984). The Enabling

Act expressly forbids Civil Rules that “abridge, enlarge or

modify any substantive right.” 28 U.S.C. § 2072(b); see also

Browny. E.W. Bliss Co., 818 F.2d 1405, 1409 (8th Cir. 1987).

The Funds say, in essence, that the marriage of Civil Rule

64 and ERISA § 514(d) permits employee benefit plans to

take advantage of the Massachusetts mechanics’ lien law. If

this argument were correct, the upshot would be to give birth

to a new, independent cause of action, not otherwise suable.

Such a result wouid obviously affect substantive rights and

thus alter substantive law. And the result wouid, in the bargain,

contravene the Rules Enabling Act. In this respect, the

mechanics’ lien law, which creates a new right of action against

a new defendant, is unlike most remedies contemplated by

Rule 64 “because it is not a remedy against [a] judgment debtor

or against a person who ts personally indebted to, or in posses-

sion of the property of, the judgment debtor.” Bricklayers

Fringe Benefit Funds v. North Perry Baptist Church, 590 F.2d

207, 209 (6th Cir.) (affirming dismissal of a mechanics’ lien

foreclosure claim asserted pursuant to Rule 64 against property

owners for fringe benef?* contributions owed by a contractor),

cert. denied, 444 U.S. 834 (1979).

In sum, the Rules Enabling Act forecloses the Funds’ argu-

ment. Civil Rule 64 cannot be emp!oyed as an effective vehicle

to remove the Massachusetts mechanics’ lien law from preemp-

tion under the terms of 29 U.S.C. § 1144(d).

2. The Education and Cultural Fund. The Funds’ fallback

position is that, even if we find preemption, the Electrical

Workers Educational and Cultural Fund (E&C Fund), one of

the tunds for whose benefit McCoy sues, can still avail itself

of the rights created by chapter 254. This claim rests on the

assertion that the E&C Fund is not an employee welfare benefit

plan covered by ERISA. In this regard, the Funds contend that

not all plans which provide for benefits under 29 U.S.C. § 186

Al6

are ERISA plans. As support for this allegation, they note that

the Secretary of Labor has authority to issue regulations defin-

ing certain terms in the ERISA statute, see 29 U.S.C. § 1135:

and that, utilizing this power, the Secretary promulgated a

reguiation, 29C.F.R. § 2510.3-1(a) (1990), that fails to include

plans granting benefits under 29 U.S.C. § 186(c)(9) within its

ambit.* On this basis, the Funds try to convince us that the

regulation’s silence effectively excludes section 186(c)(9)

plans, like the E&C Fund, from ERISA coverage. The conten-

tion is not only unpersuasive but also procedurally defaulted.

It is hornbook law that theories not raised squarely in the

district court cannot be surfaced for the first time on appeal.

See, e.g., Boston Celtics Ltd. Partnership v. Shaw, 908 F.2d

1041, 1045 (Ist Cir. 1990); Aoude v. Mobil Oil Corp., 862

F.2d 890, 896 (Ist Cir. 1988); Clauson v. Smith, 823 F.2d

660, 666 (Ist Cir. 1987). In the lower court, the Funds’ Oppos-

ition to MIT’s motion to dismiss made passing mention of the

general point — a mention which, in its entirety, comprised

two sentences and one citation (to a tangentially relevant case).°

‘Section 186(c)(9) addresses benefits granted “with respect to money or

other things of value paid by an employer to a plant, area or industrywide

labor management committee established for one or more of the purposes set

forth in section 5(b) of the Labor Management Cooperation Act of 1978." 29

U.S.C. § 186(c)(9). Section 5(b) of the Labor Management Cooperation Act

contemplates, as its title implies, improving cooperation and communication

between labor and management.

“The Funds’ total argument to the district court on this subject consisted of

the following:

Section 514(a() of ERISA by its terms applies only to employee

benefit plans covered by ERISA as defined by § 4(a). .. . Therefore

Chapter 254 is not preempted with respect to the Electrical Workers

Education and Cultural Fund. Local 103 1.B.E.W., which is not

covered by ERISA.

The only case cited, Massachusetts v. Morash, 490 U.S. 107 (1989), which

appeared in the opposition where we have inserted an ellipsis, was so peripheral

that the Funds do not cite it at all on their briefs on appeal.

Al7

The Funds failed to provide any analysis of the statutory

scheme, to present any legal authority directly supporting their

thesis; or to give any reason why the E&C Fund was not an

employee benefit plan within ERISA’s contemplation. They

did not refer the court to either 29 U.S.C. § 186(c)(9) or 29

C.F.R § 2510.3-1(a). In short, when this claim was presented

below, it was the merest of skeletons.

In an analogous situation, we wrote that a party has a duty

“to spell out its arguments squarely and distinctly. . . . [rather

than being] allowed to defeat the system by seeding the record

with mysterious references . . . hoping to set the stage for an

ambush should the ensuing ruling fail to suit.” Paterson-Leitch

Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d

985, 990 (Ist Cir. 1988); see also Kensington Rock Island

Ltd. Partnership v. American Eagle Historic Partners, 921

F.2d 122, 124-25 (7th Cir. 990) (“Arguments raised in the

District Court in a perfunctory and underdeveloped . . . manner

are waived on appeal.”) (quotation marks omitted); Beaudett

v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985)

(appellate-courts should not permit “fleeting references to pre-

serve questions on appeal”), cert. denied, 475 U.S. 1088

(1986). Overburdened trial judges cannot be expected to be

mind readers. If claims are merely insinuated rather than actu-

ally articulated in the trial court, we will ordinarily refuse to

deem them preserved for appellate review. So here. We reject

as procedurally defaulted, the E&C Fund’s belated effort to

give substance to its hitherto undeveloped theory.’

The Funds maintain that they presented the district court with a properly

propaedeutic version of their argument regarding the E&C Fund in their Oppo-

sition to MIT"s request for a protective order. But, that pleading, which was

submitted nearly two months after briefing on MIT’s motion to dismiss was

completed, cannot resurrect the issue for appeal. Courts are entitled to expect

represented parties to incorporate all relevant arguments in the papers that directly

address a pending motion. See, e.g., Weinberger v. Great N. Nekoosa Corp.,

925 F.2d 518, 528 (1st Cir. 1991) (“Requests for hearing must be explicit and

Al8

We likewise reject the Funds’ blithe suggestion that a party’s

duty of clear articulation is somehow abated in the Rule 12(b)

(6) context. In opposing a Rule 12(b) (6) motion, a plaintiff

cannot expect a trial court to do his homework for him. Rather,

the plaintiff has an affirmative responsibility to put his best

foot forward in an effort to present some legal theory that will

support his claim. See Correa-Martinez, 903 F.2d at 52;

Dartmouth Review, 889 F.2d at 16; Ryan v. Scoggin, 245

F.2d 54, 57 (10th Cir. 1957) (a court pondering a Rule 12(b)(6)

motion should not grant credence to a “footless conclusion of

law”). In this instance, the Funds disregarded that obligation.

No amount of interpretive liberality can save chestnuts so

poorly protected from the hot fire of dismissal.

A second reason to forswear the E&C Fund’s claim hinges

on the legal merit of its argument (or, more exactly put, the

lack of legal merit). The complaint states that all the plans

were “established pursuant to the requirements of 29 U.S.C.

186.”* The plans are, therefore, employee welfare benefit

plans within ERISA’s purview. See supra p.14; see also 29

U.S.C. § 1002. At bottom, then, the E&C Fund’s status argu-

ment runs at cross purposes with the plain language of the

statute.

The argument is, moreover, little bolstered by the adsciti-

tious items which the appellant brings to bear. The Funds’ re-

should be embodied in the pleadings, not in correspondence which may never

reach .. . the judge’s attention.”); see also D. Mass. R. 7.1(a)(2) (requiring

Opposition to motion to contain “in the same (rather than a separate), document

a memorandum of reasons, including citation of supporting authorities, why

the motion should not be granted”); Rule 7. 1(a)(3) (prohibiting supplementation

of opposition except “with leave of court”); Rule 7.1(e) (providing that, when

oral argument has not been requested, motions “will be decided on the papers

submitted [once] an opposition to the motion has been filed”). Hence, the

district court was under no obligation to. rummage through later-filed items

pertaining to other matters in an attempt to vitalize the anemic argument

contained in the Funds’ opposition to MIT's dismissal motion.

*This language is inapt. See supra note 2.

Al9

liance on 29 C.F.R. § 2510.3-1(a), for instance, is mislaid.

The regulation was promulgated in 1975. 29 U.S.C. § 186(c)

(9), the statutory reference which the appellant contends was

purposefully excluded from the regulation’s text, was not

enacted until 1978. Thus, it is virtually meaningless that the

regulation fails to list within its compendium of ERISA plans

those which grant benefits described in a portion of the statute

that was not yet enacted when the regulation itself was written.

The Funds’ reliance on two advisory opinions of the United

States Department of Labor (DOL), ERISA Adv. Op. 91-08A

(Jan. 30, 1991) and ERISA Adv. Op. 84-40A (Oct. 26, 984),

is equally unprofitable. These opinions did not involve either

MIT or the Funds and, therefore, have no force as precedent

here. After all, the DOL’s regulations specifically provide that

“{o}nly the parties described in the request for opinion may

rely on the opinion.” 41 Fed. Reg. 36,281, 36,283 (§ 10).

To sum up, since the E&C Fund was established pursuant

to 29 U.S.C. § 186, and since ERISA states plainly that all

plans granting benefits enumerated in section 186 are ERISA-

regulated employee welfare benefit plans, the E&C Fund is

subject to ERISA preemption on the same basis as the other

six funds involved in this litigation. There is no set of facts

potentially provable by the appellant which, under the com-

plaint as framed, could change this outcome.

V. CONCLUSION

We need go no further.” The Funds’ proposed use of the

Massachusetts mechanics’ lien law. Mass. Gen. L. ch. 254, is

‘To the extent that the amicus raises different grounds in support of reversal,

we decline to consider those grounds. While amici are allowed to participate

in appellate proceedings to help the reviewing court attain a just result, “[wle

know of no authority which allows an amicus to interject into a case issues

which the litigants, whatever their reasons might be, have chosen to ignore.”

Lane v. First Nat'l Bank, 871 F.2d 166, 175 (1st Cir. 1989)

a ee

A20

thwarted by operation of ERISA § 514(a), 29 U.S.C. § 1144(a).

The suit was properly dismissed on preemption grounds.

Affirmed. Costs to appellee.

A21

APPENDIX B

United States Court of Appeals

For the First Circuit

No. 91-1318

JAMES L. McCOY, ADMINISTRATOR OF THE

ELECTRICAL WORKERS TRUST FUNDS,

LOCAL 103 I1.B.E.W.,

Plaintiff, Appellant,

MASSACHUSETTS INSTITUTE OF TECHNOLOGY,

Defendant, Appellee.

JUDGMENT

Entered: November 19, 199]

This cause came on to be heard on appeal from the United

States District Court for the District of Massachusetts, and

was argued by counsel.

Upon consideration whereof, It is now here ordered, ad-

judged and decreed as follows: The judgment of the district

court is affirmed.

Costs to appellee.

By the Court:

s/ ___ Francis P. Scigliano

Clerk

—e

A22

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JAMES L. McCOY, ADMINISTRATOR

OF THE ELECTRICAL WORKERS TRUST

FUNDS, LOCAL 103 I.B.E.W.

Plaintiff CIVIL ACTIOD

v. No. 90-11925-5

MASSACHUSETTS INSTITUTE

OF TECHNOLOGY

Defendant

MEMORANDUM AND ORDER ON PLAINTIFF’S

MOTION TO REMAND AND DEFENDANT’S

MOTION TO DISMISS THE COMPLAINT

March I, 199]

SKINNER, D.J.

This is an action brought by the plaintiff, James McCoy

Administrator of the Electrical Workers Trust Funds (“th

Funds”), Local 103 1.B.E.W., toenforce a lien against propert

owned by the defendant Massachusetts Institute of Technolog:

(“MIT”). The complaint was filed pursuant to M.G.L c. 25¢

in the Middlesex Superior Court. The defendant removed the

case to this court on the grounds that the Administrator’s stat

law action is preempted by the Employee Retirement Income

Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001 et seg

The plaintiff now moves to remand the action back to th

Superior Court on the grounds that this court lacks subjec

matter jurisdiction over the state lien claim. MIT moves tc

dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6

because the plaintiff ’s state law claim is preempted by ERISA.

A23

Background

Plaintiff is the Administrator of various funds established

pursuant to the requirements of 29 U.S.C. § 186 (Complaint,

4 1,2). Participants of the Funds were employed by S.N.

Brown Electrical Corporation (“Brown’’), a subcontractor, in

the “erection, alteration, repair, or removal of the building”

located at 143-153 Albany Street, Cambridge, Massachusetts.

({ 4) Defendant MIT is the owner of this property. ({| 3) The

Administrator contends that Brown was an employer obligated

to make contributions to the Funds under a collective bargain-

ing agreement. The Funds are owed over $30,000 in unpaid

employee benefit plan contributions. ({/ 7) After complying

with all the procedural requirements of M.G.L. c. 254 to obtain

a lien on the Albany Street property, on July 17, 1990, the

Administrator filed a complaint to foreclose on the lien in the

Middlesex Superior Court. (1 5, 6, 7, 8, 9, 11)

Discussion

The plaintiff asserts that this action should be remanded on

the grounds that M.G.L. c. 254 is not preempted by ERISA

and this court lacks subject matter jurisdiction to adjudicate

the Administrator’s lien claim under chapter 254. The com-

plaint makes no mention of ERISA or any other federal statute.

The usual rule is that a cause of action arises under federal

law for purposes of 28 U.S.C. § 1331 only when the plaintiff ’s

well-pleaded complaint raises an issue of federal law. See

Gully v. First National Bank, 299 U.S. 109 (1936); Louisville

& Nashville R. Co. v. Mottley, 211 U.S. 149 (1908). Federal

preemption is normally a federal defense to the plaintiff’s suit.

As a defense, therefore, it does not appear on the face of a

well-pleaded complaint, and does not authorize removal to

federal court. Metropolitan Life Insurance Company v. Taylor,

481 U.S. 58, 63 (1987). The United States Supreme Court

has noted, however, that “Congress may so completely pre-empt a

A24

particular area that any civil complaint raising this select group

of claims is necessarily federal in character.” Metropolitan

Life, 481 U.S. at 63-64 (holding that common law contract

and tort claims that are preempted by ERISA are removable

to federal court). Under the reasoning of Metropolitan Life, if

ERISA preempts the Administrator's state lien claim, then this

court has subject matter jurisdiction over this action even

though the complaint on its face states no federal cause of

action.

The issue I must decide in order to decide both the motion

to remand and the motion to dismiss is whether M.G.L. c. 254

is preempted by ERISA. M.G.L. ¢ 254, § | reads:

A person to whom a debt is due for personal labor

performed in the erection, alteration, repair or re-

moval of a building or structure upon land. . . shall

have a lien upon such building or structure and

upon the interest of the owner thereof in the lot of

land upon which it is situated. . . .

For purposes of this chapter, a person shall include

any employee of any employer and the trustee or

trustees of any fund or funds, established pursuant

to section 302 of the Taft Hartley Law (29 USC

186), providing coverage or benefits to such person.

The trustee or trustees of any such fund or funds

shall have all the liens under this chapter that any

person has. The trustee or trustees shall also have

the right to enforce said liens pursuant to this chapter.

Under 29 U.S.C. § 1144(a), ERISA “shall supersede any and

all State laws insofar as they may now or hereafter relate to

any employee benefit plan. . . .” (Emphasis added.) An excep-

tion to the preemption provision is made for state laws regulat-

ing insurance, banking, or securities. § 1144(b)(2). Chapter

254 is not such a statute.

A25

The Supreme Court has referred repeatedly to “the expansive

sweep of the preemption clause.” Pilot Life Insurance Com-

pany v. Dedeaux, 481 U.S. 41, 47 (1987). The Court has

stated that the phrase “relate to” should be given its broad

common sense meaning, such that a state law “relates to” an

employee benefit plan if it has a connection with or reference

to such a plan. Shaw v. Delta Air Lines, Inc., 463 U.S. 85,

96-97 (1983). Chapter 254 clearly “relates to” employee benefit

plans and is, therefore, expressly preempted by 29 U.S.C.

§ 1144(a).

The plaintiff argues that chapter 254 is not preempted be-

cause Congress, in enacting § 515 ' and § 502(g)(2)? of ERISA,

intended to supplement, not supersede, existing state law rem-

edies for the collection of plan contributions. The Court in

Pilot Life, however, held that the civil enforcement scheme

provided by ERISA § 502(a) was intended to be exclusive:

The policy choices reflected in the inclusion of cer-

tain remedies and the exclusion of others under the

federal scheme would be completely undermined if

ERISA-plan participants and beneficiaries were free

to obtain remedies under state law that Congress

rejected in ERISA. “The six carefully integrated civil

enforcement provisions found in § 502(a) of the statute

Section 515, 29 U.S.C. § 1145 reads: “Every employer who is obligated

to make contributions to a multiemployer plan under the terms of the plan or

under the terms of a collectively bargained agreement shall, to the extent not

inconsistent with law, make such contributions in accordance with the terms

and conditions of such plan or such agreement.”

* Section 502(g)(2), 29 U.S.C. § 1132(g)(2) reads: “In any action under this

subchapter by a fiduciary for or on behalf of a plan to enforce section 1145

of this title in which a judgment in favor of the plan is awarded, the court

shall award the plan — (A) the unpaid contributions, (B) interest on the unpaid

contributions, (C) an amount equal to the greater of — (i) interest on the unpaid

contributions, or (ii) liquidated damages provided for under the plan . . ., (D)

reasonable attorney's fees and costs of the action, to be paid by the defendant,

and (E) such other legal or equitable relief as the court deems appropriate.”

A26

as finally enacted . . . provide strong evidence that

Congress did not intend to authorize other remedies

that it simply forgot to incorporate expressly.”

Pilot Life, 481 U.S. at 54 (citation omitted).

The plaintiff claims that the holding in Pilot Life does not

extend to actions by ERISA plans to recover delinquent con-

tributions, and that ERISA does not preempt independent state

law actions against nonemployers. In a case directly on point,

however, the Court of Appeals for the Fifth Circuit held that

a Louisiana statute similar to chapter 254 was preempted by

ERISA. Jron Workers Mid-South Pension Fund v.

Terotechnology Corp., 89i F.2d 548 (Sth Cir. 1990), cert.

denied, 110 S.Ct. 3272 (1990). In Iron Workers, employee

benefit plans brought suit both against a contractor which failed

to make contributions to the plans as required by collective

bargaining agreements and against the owner of the property

on which the work was performed. Pursuant to a state lien

statute, the funds attempted to enforce liens recorded against

the property for contributions owed by the contractor. The

court, interpreting Pilot Life, held that the state statute was

preempted because it attempted to supplement the exclusive

civil remedies provided by ERISA. 891 F.2d at 555. The court

rejected the plaintiffs’ argument that the state statute was

merely an aid to the enforcement of a judgment. The court

noted that the lien statute did more than provide remedies for

collecting judgments; it created substantive rights. Id. The

Louisiana statute, like the Massachusetts statute, gave ERISA

plans rights against not only employers but also property owners.

Id. The court concluded that the legislative history of ERISA

did not indicate any congressional intent to allow states to create

new substantive rights for ERISA plans. /d. at 556. See also

McMahon v. McDowell, 794 F.2d 100, 107 (3rd Cir. 1986),

cert. denied, 479 U.S. 971 (1986) (holding that plaintiffs could

A27

not enforce benefit plan contributions through a state regulation

that circumvented ERISA’s enforcement scheme).

Several state courts have addressed the issues raised by this

case. The Court of Appeals of California held that a state

mechanics’ lien law could not be used by a trust fund fiduciary

to collect fringe-benefit contributions allegedly owed by a sub-

contractor pursuant to a collective bargaining agreement. Car-

penters Southern California Administrative Corp. v. El Capi-

tan Development Co., 223 Cal. App. 3d 1034, 243 Cal. Rptr.

132 (Sth Dist. 1988), review granted, 246 Cal. Rptr. 209

(1988). The plaintiff has referred to two decisions holding thas

State statutes were not preempted by ERISA, but neither deci-

sion applies to the situation here. In Sasso v. Vachris, 66

N.Y.2d 28, 484 N.E.2d 1359, 494 N.Y.S.2d 856 (1985). the

Court of Appeals of New York held that a state statute allowing

employee benefit funds to recover unpaid contributions directly

from the ten largest shareholders of a closely-held corporation

was not preempted by ERISA. The court noted, however, that

the effect of the state statute was merely to give plaintiffs an

enforcement mechanism to recover payments the corporation

was already obligated to provide under the collective bargain-

ing agreement. 494 N.Y.S.2d at 859. In Plumber’s Local 458

Holiday Vacation Fund v. Howard Immel, Inc., 151 Wis.2d

233, 445 N.W.2d 43 (Ct. App. 1989), the Court of Appeals

of Wisconsin held that Wisconsin’s construction lien law was

not preempted by ERISA. The court distinguished the Califor-

nia court’s decision in El Capitan by noting that the lien created

by the California statute referred specifically to ERISA obliga-

tions and created a remedy for the collection of ERISA obliga-

tions that did not exist under the federal act. According to the

Wisconsin court, ERISA does not preempt states from creating

“general creditors’ rights that may be utilized to effect collec-

tions of obligations by all creditors, including a creditor pos-

sessing an ERISA claim that has been reduced to a judgment.”

445 N.W.2d at 46.

A28

Chapter 254 does much more than provide funds with a

method of collecting contributions already owed them under

ERISA. Chapter 254 creates a whole new class of liable parties,

property owners. The Administrator does not even allege a

contractual or other relationship between the Funds and MIT.

Nor does the complaint allege that MIT is an employer, par-

ticipant, or plan beneficiary within the meaning of ERISA. |

conclude that chapter 254 is preempted to the extent that it

applies to employee benefit plans.

In addition to claiming that ERISA does not preempt chapter

254, the plaintiff has presented two lesser arguments. First,

the plaintiff claims that Fed. R. Civ. P. 64 authorizes the use

of chapter 254 and, therefore, chapter 254 is saved from

preemption by § 514(d) of ERISA, 29 U.S.C. § 1144(d).°

Rule 64 makes available in federal district courts certain state

law remedies that provide “for seizure of person or property

for the purpose of securing satisfaction of the judgment ulti-

mately to be entered in the action.” The remedies listed in

Rule 64 include attachment, garnishment, sequestration, and

“other corresponding or equivalent remedies.” Chapter 254

bears no relation to the remedies described in Rule 64. A lien

foreclosure proceeding is not “equivalent” to any of the rem-

edies listed in Rule 64 “because it is not a remedy against the

judgment debtor or against a person who is personally indebted

to, or in possession of the property of, the judgment debtor.”

Bricklayers Fringe Benefit Funds v. North Perry Baptist

Church, 590 F.2d 207, 209 (6th Cir. 1979), cert. denied, 444

U.S. 834 (1979) (affirming the dismissal of a mechanic’s lien

foreclosure claim by union against property owners for fringe

benefit contributions owed by the contractor). As I stated

above, chapter 254 actually creates a substantive right for trustees

‘Section 514(d) reads: “Nothing in this subchapter shall be construed to

alter, amend, modify, invalidafe, impair, or supersede any law of the United

States . . . or any rule or regulation issued under any such law.”

A29

of ERISA plans against owners of real property. Chapter 254

is not the type of statute contemplated by Rule 64, and, there-

fore, is not saved from preemption by that rule.

Finally, the Administrator claims that even if chapter 254

is preempted by ERISA, it is not preempted with respect to

the Electrical Workers Educational and Cultural Fund, Local

103 I1.B.E.W., because that particular fund is not covered by

ERISA. The Educational and Cultural Fund is one of seven

funds on behalf of which the Administrator brought this action.

The complaint states that all the Funds included in the action

were established pursuant to the requirements of 29 U.S.C.

§ 186. (Complaint, § 2) Under § 3 of ERISA, 29 U.S.C.

§ 1002(1), funds established pursuant to § 186 are included

in the term “employee welfare benefit plan” and, therefore,

are covered by ERISA. In sum, the plaintiff’s state law claim

against MIT is preempted by ERISA.

Accordingly, plaintiff’s motion to remand is denied. De-

fendant’s motion to dismiss the complaint for failure to state

a claim upon which relief may be granted is allowed.

/s/ Walter Jay Skinner

United States District Judge

A30

APPENDIX D

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

JAMES L. McCOY, ADMINISTRATOR

OF THE ELECTRICAL WORKERS TRUST

FUNDS, LOCAL 103 I.B.E.W.

CASE NUMBER:

Vv. No. 90-11925-S

MASSACHUSETTS INSTITUTE

OF TECHNOLOGY

JUDGMENT IN A CIVIL CASE

(] 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.

C] 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 PURSUANT TO THE

COURT’S MEMORANDUM AND ORDER... . DATED

MARCH 1, 1991, THAT THE COMPLAINT IN THE

ABOVE ENTITLED CASE IS HEREBY DISMISSED.

DATED: March 5, 1991

/s/ Robert J. Smith, Jr.

Clerk

/s/ Philip J. Lyons

(By) Deputy Clerk

A31

APPENDIX E

COMMONWEALTH OF MASSACHUSETTS

MIDDLESEX, SS SUPERIOR COURT

CIVIL ACTION

NO. 90-4936

JAMES L. McCOY, ADMINISTRATOR

OF THE ELECTRICAL WORKERS TRUST

FUNDS, LOCAL 103 I.B.E.W.

Plaintiff

V. COMPLAINT

MASSACHUSETTS INSTITUTE

OF TECHNOLOGY,

Defendant

PARTIES

1. Plaintiff is James L. McCoy, Administrator (hereinafter

Administrator’) of the Electrical Workers Trust Funds, Local

103 I.B.E.W. (hereinafter the ““Funds”’) on behalf of the Trus-

tees of said Funds. The Funds include the Electrical Workers

Pension Fund, Local 103, I.B.E.W., the Electrical Workers

Deferred Income Fund, Local 103, 1.B.E.W, Local Union No.

103, 1.B.E.W., Health and Welfare Fund, the Electrical Work-

ers Holiday, Vacation and Supplementary Unemployment Ben-

efits Fund, Local 103, 1.B.E.W., the Electrical Workers Edu-

cational and Cultural Fund, Local 103, I.B.E.W., the Joint

Apprenticeship and Training Trust Fund, Local 103,1.B.E.W.,

and the National Electrical Benefits Fund. Pursuant to G.L.

c. 254, § 5, parties also include any “persons in interest” as

defined by G.L. c. 254, § 5 who may become parties.

site secnethiais iii aii esi

A32

2. The Funds were established pursuant to the requirements

of 29 U.S.C. § 186.

3. Defendant Massachusetts Institute of Technology is the

duly recorded owner of property situated at 143-153 Albany

Street, Cambridge, Middlesex County, Massachusetts. De-

fendant has a usual place of business at 77 Massachusetts

Avenue, Boston, Massachusetts 02139.

G.L. c. 254, § 4 Claim

4. The S.N. Brown Electrical Corp. (hereinafter “S.N.

Brown”) was a subcontractor who employed participants of

the Funds during the months of March, April and May, 1990.

Said participants performed labor in the erection, alteration,

repair, or removal of the building located at 143-153 Albany

Street, Cambridge, Middlesex County, Massachusetts and

owned by Defendant.

5. Pursuant to the statutory provisions of G.L. c. 254, § 4,

Plaintiff filed a Notice of Contract on May 23, 1990 in the

Registry of Deeds. Said Notice of Contract, which describes

the property in question, is attached hereto and incorporated

herein by reference as Exhibit “A.”

6. A copy of Exhibit A was hand delivered to the Defendant

on May 23, 1990, and actual notice of Plaintiff's claim has

been provided to the Defendant. A copy of said notice is

attached hereto and incorporated herein by reference as Exhibit

“B".

7. Pursuant to the statutory provisions of G.L. c. 254, § 8

Plaintiff filed a Sworn Statement on May 29, 1990 in the

Registry of Deeds. A true copy of said Sworn Statement is

attached hereto and incorporated herein by reference as Exhibit

“C”. Said Statement of Account shows that Plaintiff is owed

the estimated principal amount of $30,000.00, plus interest,

costs and attorney's fees.

A33

8. Defendant has failed or refused to pay the claim despite

demand to do so.

9. The Plaintiff established a lien against said property in

the estimated amount of $30,000.00, plus interest, costs and

attorney’s fees.

WHEREFORE, the Plaintiff pray’s for the following relief:

1. That the Court enter judgment against the Defendant

Massachusetts Institute of Technology, and award Plaintiff the

principal estimated amount of $30,000.00, or such other sum

as may be owed upon judgment, plus interest, costs and attor-

ney's fees.

2. That the Court order a sale of the property at 143-153

Albany Street to satisfy Plaintiffs claim and any other persons

in interest or parties in interest as provided by G.L. c. 254, § 5.

3. That the Court grant such other and further relief as it

deems proper.

COUNT II

10. Plaintiff hereby restates the allegations contained in

paragraphs one through nine of the instant Complaint.

11. Pursuant to the statutory provisions of G.L. c. 254,

$§ | and 8, Plaintiff filed a Sworn Statement on May 29, 1990

in the Registry of Deeds.

WHEREFORE, the Plaintiff prays for the following relief:

|. That the Court enter judgment against Defendant Massa-

chusetts Institute of Technology and award Plaintiff the prin-

cipal estimated amount of $30,000.00, plus interest, costs and

attorney's fees.

2. That the Court order a sale of the property at 143-153

Albany Street to satisfy Plaintiff's claim and any other persons

in interest or parties in interest s provided by G.L. c. 254, §S.

A34

3. That the Court grant such other and further relief as it

deems proper.

Respectfully submitted,

JAMES L. MCCOY, ADMINISTRATOR

OF THE ELECTRICAL WORKERS

TRUST FUNDS,

LOCAL 103 I.B.E.W.

By his attorneys,

Murphy, Hesse, Toomey & Lehane

300 Crown Colony Drive

Suite 410

P.O. Box 9126

Quincy, MA 02269-9126

(617) 479-5000

Dated: July 16, 1990

/s/ David W. Healey

David W. Healey

BBO #548262

A TRUE COPY:

ATTEST: /s/ __ MaryE. Rosa

Deputy Assistant Clerk

A35

Ex. A

NOTICE OF CONTRACT

G.L. c. 254, Section 4

NOTICE is hereby given that by virtue of a written contract,

namely a collective bargaining agreement, between S.N.

BROWN ELECTRICAL CORP. of 859 Providence Highway,

Dedham, MA 02026, subcontractor and the Local Union No.

103 of the International Brotherhood of Electrical Workers,

AFL-CIO, said members of said Union and employees of S.N.

BROWN ELECTRICAL CORP. and participants in the Elec-

trical Workers Trust Funds, Local 103 I.B.E.W. are to furnish

or have furnished labor or perform or have performed labor

in the erection, alteration, repair or removal of a building or

structure by the S.N. BROWN ELECTRICAL CORP. subcon-

tractor for the Massachusetts Institute of Technology, a Mas-

sachusetts corporation with a mailing address of Massachusetts

Avenue, Cambridge, Massachusetts as described as follows:

PARCEL I

|. The parcel of land with the buildings and other structures

thereon believed to contain about 50,651 square feet bounded:

Southeasterly on Albany Street about 243 feet;

Southwesterly on land now or formerly of Stimpson about

222.84 feet; and

Northwesterly on the southeasterly sideline of Purrington Street

about 243 feet; and

Northeasterly on the southwesterly sideline of Cross Street

about 222.84 feet.

Also conveying herewith all of the Grantor’s rights, title

and interest, in and to Purrington Street and Cross Street.

For Owners title reference see Deed at Middlesex County

Registry of Deeds at Book 10566, Page 409.

A36

Said contract contains an expiration or completion date of

August 31, 1991.

TRUSTEES OF THE ELECTRICAL WORKERS

PENSION FUND, LOCAL 103 I.B.E.W., the

ELECTRICAL WORKERS DEFERRED IN-

COME FUND, LOCAL 103, I.B.E.W., the

LOCAL UNION NO. 103 I.B.E.W., HEALTH

AND WELFARE FUND, the ELECTRICAL

WORKERS HOLIDAY, VACATION AND SUP-

PLEMENTARY UNEMPLOYMENT BENE-

FITS FUND, LOCAL 103 I.B.E.W., the ELEC-

TRICAL WORKERS EDUCATIONAL AND

CULTURAL FUND, LOCAL 103 1.B.E.W., the

JOINT APPRENTICESHIP AND TRAINING

TRUST FUND, LOCAL 103 I.B.E.W. AND

THE NATIONAL ELECTRICAL BENEFITS

FUND

By their Administrator and Agent

Hereto Duly Authorized:

Witness my hand and seal

/s/ James L. McCoy

James L. McCoy

Administrator

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. May 23, 1990

Then personally appeared before me the above named James

L. McCoy, Administrator and Authorized Agent of the Trus-

tees of the Electrical Workers Pension Fund, Local 103

A37

I.B.E.W., the Electrical Workers Deferred Income Fund,

Local 103 I.B.E.W., the Local Union No. 103, I.B.E.W..,

Health and Welfare Fund, the Electrical Workers Holiday,

Vacation and Supplementary Unemployment Benefits Fund,

Local 103 I.B.E.W., the Electrical Workers Educational and

Cultural Fund, Local 103 I.B.E.W., the Joint Apprenticeship

and Training Trust Fund, Local 103 I.B.E.W. and the National

Electrical Benefits Fund who being duly sworn did attest to

being the Administrator and/or agent of said aforementioned

Funds, and that the foregoing Notice of Contract was signed

on behalf of and by the authority of the Trustees of said

aforementioned Funds, and that said instrument was acknowl-

edged to be the free act and deed of the Trustees of said

aforementioned Funds.

Notary Public

My Commission expires: 11/12/94

A38

Ex. B

MURPHY, HESSE, TOOMEY and LEHANE

ATTORNEYS AT LAW

CROWN COLONY PLAZA

300 CROWN COLONY DRIVE, SUITE 410

P.O. BOX 9126

QUINCY, MA 02269-9126

TEL. 617/479-5000 FAX 479-6469

May 23, 1990

Mr. Kenneth L. Thompson

Massachusetts Institute of Technology

77 Massachusetts Avenue

Physical Plan

E-18-260

Cambridge, MA 02139

RE: Notice of Contract Against

Massachusetts Institute of Technology

Dear Sir or Madam:

Enclosed please find a Notice of Contract with respect to

Massachusetts Institute of Technology, 143-153 Albany Street,

Cambridge, MA.

Said Notice was filed on May 23, 1990 in the Registry of

Deeds.

Very truly yours,

DWH/Ibm David W. Healey

cc: James L. McCoy, Administrator

Enclosure

Signature certifies receipt of letter

delivered this letter to Mr. Thompson but he refused to sign it,

on the above date

Joseph Gier, Braintree Cab Driver

A39

Ex. C

COMMONWEALTH OF MASSACHUSETTS

SWORN STATEMENT UNDER

G.L. c. 254, § 8

The undersigned, being duly sworn, does hereby state that

the following is a just and true account, with all just credits

given, of the amount due the Trustees of the Electrical Workers

Pension Fund, Local 103, I.B.E.W., Electrical Workers De-

ferred Income Fund, Local 103, I.B.E.W., Local Union No.

103, 1.B.E.W., Health and Welfare Fund, the Electrical Work-

ers Holiday, Vacation and Supplementary Unemployment

Benefits Fund, Local 103, I.B.E.W., the Electrical Workers

Educational and Cultural Fund, Local 103, 1.B.E.W.., the Joint

Apprendiceship and Training Trust Fund, Local 103, 1.B.E.W.

and the National Electrical Benefits Fund for labor performed

in the erection, alteration, repair, or removal of a building

situated at 143-153 Albany Street, Cambridge, Massachusetts

and owned by the Massachusetts Institute of Technology. For

further description see Exhibit “A”.

ACCOUNT

Item Amount Due

Unpaid contributions based in part $30,000 estimated

on hourly rate and in part on percent- plus interest, costs

age of gross earnings and attorney’s fees.

Interest begins to accrue at the rate of 1.5% per month

commencing on April 15, 1990.

Costs and attorney’s fees are owed based upon the number

of attorney hours the matter requires, estimated as of this date

to approximate $2,000.00.

A40

The undersigned hereby claims a lien upon said building or

structure, and upon the interest of the owner, to secure the

payment of the debt due as aforesaid, and of the interest, costs

and attorney’s fees which may arise in enforcing the lien.

TRUSTEES OF THE ELECTRICAL WORKERS

PENSION FUND, LOCAL 103 I.B.E.W., the

ELECTRICAL WORKERS DEFERRED IN-

COME FUND, LOCAL 103, I.B.E.W., the

LOCAL UNION NO. i03, I.B.E.W., HEALTH

AND WELFARE FUND, the ELECTRICAL

WORKERS HOLIDAY, VACATION AND SUP-

PLEMENTARY UNEMPLOYMENT BENE-

FITS FUND, LOCAL 103, I.B.E.W., the ELEC-

TRICAL WORKERS EDUCATIONAL AND

CULTURAL FUND, LOCAL 103, 1.B.E.W., the

JOINT APPRENTICESHIP AND TRAINING

TRUST FUND, LOCAL 103 I.B.E.W. AND

THE NATIONAL ELECTRICAL BENEFITS

FUND

By their Administrator and Agent

Hereto Duly Authorized:

Witness my hand and seal

/s/ James L. McCoy

James L. McCoy

Administrator

A4l

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. May 23, 1990

Then personally appeared before me the above-named James

L. McCoy, Administrator and Authorized Agent of the Trus-

tees of the Electrical Workers Pension Fund, Local 103,

I.B.E.W., the Electrical Workers Deferred Income Fund,

Local 103, 1.B.E.W., the Local Union No. 103, I1.B.E.W.,

Health and Welfare Fund, the Electrical Workers Holiday,

Vacation and Supplementary Unemployment Benefits Fund,

Local 103, !.B.E.W., the Electrical Workers Educational and

Cultural Fund, Local 103, I.B.E.W., the Joint Apprenticeship

and Training Trust Fund, Local 103, 1.B.E.W. and the National

Electrical Benefits Fund who being duly sworn did attest to

being the Administrator and/or agent of said aforementioned

Funds, and that the foregoing Sworn Statement was signed on

behalf of and by the authority of the Trustees of said aforemen-

tioned Funds, and that said instrument was acknowledged to

be the free act and deed of the Trustees of said aforementioned

Funds.

Notary Public

My Commission expires: 5/10/96

A42

APPENDIX F

U.S. Department of Labor

Pension and Welfare Benefits Administration

Washington, D.C. 20210

JAN 30 1991

Mr. G.A. Finch 91-O08A

Querrey & Harrow, Ltd. ERISA SEC. 3(1)

La Salle Bank Building, Suite 3600

135 South La Salle Street

Chicago, Illinois 60603-4784

Dear Mr. Finch:

This is in reply to your request for an advisory opinion regard-

ing the applicability of title | of the Employee Retirement

Income Security Act of 1974 (ERISA). Specifically, you ask

whether the Construction Industry Service Corporation Trust

(the CISCO Trust) is an empioyee welfare benefit plan within

the meaning of section 3(1) of title | of ERISA and whether

the purposes and activities contemplated for the CISCO Trust

are permissible under the Labor-Management Cooperation Act

of 1978.

You advise that the CISCO Trust was created pursuant to a

declaration of trust dated September 19, 1990. The declaration

of trust states that the CISCO Trust was being established by

the Construction Industry Service Corporation (CISCO), which

is comprised of contractors associations and building and con-

struction trade unions. The Executive Committee of the CISCO

Board of Directors constitutes the Board of Trustees of the

CISCO Trust. The By-Laws of CISCO provide in Article III,

Section | for three classes of membership as follows:

A43

(a) Full membership in CISCO shall be open to Building and

Construction Trades Unions and Contractors and their

Associations that have a collective bargaining relation-

ship. Full members shall have voting rights and shall pay

full-member dues. Associate membership is available to

all other interested parties, including, but not restricted

to, owners, developers, governmental agencies, allied

professionals, and academic institutions, which associate

members shall have no voting rights and shall pay as-

sociate-member dues.

(b) The Board of Directors may elect honorary members who

shall have no voting rights and shall not be liable for

payment of any dues. Qualification for honorary member-

ship shall be any noteworthy contribution towards the

purposes of CISCO which in the judgment of the Board

of Directors may warrant recognition by such election as

an honorary member. An honorary membership may be

terminated by the Board of Directors at any time.

Article VI, Section 2(c) of the By-Laws provides that the

Board of Directors will have equal numbers of union and

coptractor representatives.

The declaration of trust provides the purpose of the CISCO

Trust in Article II as follows:

This CISCO Trust shall function where allowable by law to:

—- operate programs that will carry out the purposes set

forth in the Labor-Management Cooperation Act of

1978 and are in furtherance of the tax-exempt purposes

of the CISCO Trust as may be exercised by an organi-

zation exempt under Section 501(c)(6) of the Internal

Revenue Code and its Regulations as they now exist

or as they may hereafter be amended;

— improve communication between workers, their repre-

sentatives and employers in the construction industry;

A44

identify and expand work opportunities for workers

and employers in construction;

promote efficiency in operations and the economic

competitiveness of the construction industry;

provide a forum for discussion of matters of common

concern to employers, workers and their representatives

in the industry;

acquire and operate a computer information system to

collect and disseminate information relating to solicita-

tions of bids for construction work;

inform contractor associations and building and con-

struction trade union representatives about projects,

contracts, trends and events affecting the construction

industry and establish a network for the exchange of

information pertinent to the construction industry;

provide information concerning all laws governing con-

struction contracts including local, state and federal

laws governing wages, hours and work conditions on

public works construction;

sponsor the establishment and operation of local satel-

lite labor and management cooperation committees and

trusts throughout the greater Chicago area for one or

more of the same purposes as the CISCO Trust has

been established;

sponsor seminars, conferences and meetings to expand

the reach of CISCO Trust activities;

promote the economic and community development of

the construction industry;

promote the general welfare of the construction industry

and to promote its standards and specifications;

sponsor institutional advertising, public relations pro-

grams and promotional activities for the good of the

public and the construction industry;

A45

— do and perform all other things and undertake such

other projects as may be of benefit to the construction

industry;

— obtain governmental and philanthropic assistance to

CISCO Trust as warranted;

— operate CISCO Trust programs that enhance the ability

of CISCO as an organization to accomplish the goals

described in the Labor-Management Cooperation Act

of 1978.

Section 3(1) of ERISA defines the term “employee welfare

benefit plan” to include:

... any plan, fund, or program which was heretofore

or is hereafter established or maintained by an em-

ployer or by an employee organization, or by both,

to the extent that such plan, fund, or program was

established or is maintained for the purpose of pro-

viding for its participants or their beneficiaries,

through the purchase of insurance or otherwise, (A)

medical, surgical, or hospital care or benefits, or,

benefits in the event of sickness, accident, disability,

death or unemployment, or vacation benefits, ap-

prenticeship or other training programs, or day care

centers, scholarship funds, or prepaid legal services,

or (B) any benefit described in section 302(c) of the

Labor Management Relations Act, 1947 (other than

pensions on retirement or death, and insurance to

provide such pensions).

Based on the information you submitted, it does not appear

that the CISCO Trust is an employee welfare benefit plan

within the meaning of section 3(1) of ERISA. The benefits

described in section 3(1)(A) do not include any benefits pro-

vided by the CISCO Trust. Further, it is the Department’s posi-

A46

tion that section 3(1)(B) of ERISA does not mean that every

arrangement described in section 302(c) of the Labor Manage-

ment Relations Act of 1947 (the LMRA) constitutes an em-

ployee welfare benefit plan within the meaning to section 3(1)

of ERISA. In the Department's regulation section 29 C.F.R.

2510.3-1(a) the Department clarified the definition of an “em-

ployee welfare benefit plan.” With regard to benefits described

in section 302(c) of the LMRA, regulation section 2510.3-1(a)

provides:

(3) Section 302(c) of the LMRA lists exceptions to

the restrictions contained in subsections (a) and (b)

of that section on payments and loans made by an

employer to individuals and groups representing em-

ployees of the employer. Of these exceptions, only

those contained in paragraphs (5), (6), (7) and (8)

describe benefits provided through employee benefit

plans. Moreever, only paragraph (6) describes bene-

fits not described in section 3(1)(A) of the Act. The

benefits described in section 302(c)(6) of the LMRA

but not in section 3(1)(A) of the Act are “. . . holi-

day, severance or similar benefits.” Thus, the effect

of section 3(1)(B) of the Act is to include within the

definition of “welfare plan” those plans which pro-

vide holiday and severance benefits, and benefits

which are similar (for example, benefits which are

in substance severance benefits, although not so

characterized).

Although this regulation was adopted prior to the amendment

of section 302(c) of the LMRA to add subsection 302(c)(9),

the principle is the same. Only those arrangements described

in section 302(c) of the LMRA that provide benefits to partici-

pants and their beneficiaries would constitute employee welfare

benefit pans. The CISCO Trust does not provide, in the Depart-

A47

ment’s view, any “benefit” to participants or their beneficiaries

within the meaning of section 3(1) of title I of ERISA

Accordingly, the CISCO Trust would not be covered under

title | of ERISA since there is also no indication it is an

employee pension benefit plan.

Regarding the second issue you raise, we note that the Labor

Management Cooperation Act of 1978 is not under the interpre-

tive authority of this Office or the Department of Labor. Ac-

cordingly we are unable to comment on that portion of your

request.

This letter constitutes an advisory opinion under ERISA Pro-

cedure 76-1. Accordingly, it is issued subject to the provisions

of that procedure, including section 10 thereof relating to the

effect of advisory opinions.

Sincerely,

Robert J. Doyle

Director of Regulations

and Interpretations

A48

APPENDIX G

U.S. Department of Labor

Pension and Welfare Benefits Administration

Washington, D.C. 20210

OCT 26 1984

Mr. Stuart H. Young, Jr. OPINION NO. 84-40A

Hill, Farrer & Burrill SEC. 3(1)

Thirty-Fourth Floor Union Bank Square

445 South Figueroa Street

Los Angeles, California 90071

Dear Mr. Young:

This is in reply to your letter of February 14, 1984, requesting

an advisory opinion regarding applicability of title I of the

Employee Retirement Income Security Act of 1974 (ERISA).

Specifically, you ask whether the Southern California IBEW-

NECA — Labor-Management Cooperation Committee

(SCLMCC) is an employee welfare benefit plan within the

meaning of section 3(1) of tite I of ERISA.

You advise that on or about June |, 1983, the Los Angeles

County Chapter, National Electrical Contractor Association

(LANECA) and the International Brotherhood of Electrical

Workers, Local No. 11 (Local 11) entered into a collective

bargaining agreement entitled the “Inside Wiremen’s Agree-

ment” (the Agreement) for a term of 3 years. You further

advise that section 7.05 to 7.07 of the Agreement created a

new entity designed to function as a Labor-Management Coop-

eration Committee within the meaning of section 302(c)(9) of

the Labor-Management Relations Act and the Labor-Manage-

ment Cooperation Act of 1978. On February 8, 1984, repre-

A49

sentatives of LANECA and Local 1! adopted the Agreement

and Declaration of Trust of SCLMCC (the Declaration). The

Trust set up under the Declaration is referred to in Article II.

Section | as SCLMCC and is administered by six trustees,

half representing the employers and half representing the union.

Article II, Section 4 of the Declaration provides:

Section 4. Purpose.

The Trust is established solely for the purpose of

creating a Labor-Management Cooperation Commit-

tee under the authority of Section 6(b) of the Labor-

Management Cooperation Act of 1978, 20 U.S.C.

Section 175(a); and Section 302(c)(9) of the Taft-

Hartley Act, 29 U.S.C. Section 186(c)(9). The per-

missible purposes of this Committee are established

by these federal statutes and include:

a- To improve communication between representa-

tives of labor and management, and engender

cooperative and harmonious relations between labor

and management in the Southern California electrical

industry;

b- To provide workers and employers with oppor-

tunities to study and explore new and innovative

joint approaches to achieving organizational effec-

tiveness:

c- To assist workers and employers in solving prob-

lems of mutual concern not susceptible to resolution

within the collective bargaining process:

d- To study and explore ways of eliminating poten-

tial problems which reduce the competitiveness and

inhibit the economic development of the plant, area

or industry;

e- To enhance the involvement of workers in mak-

ing decisions that affect their working lives;

ASO

f- To expand and improve working relationships

between workers and managers;

g- To encourage free collective bargaining by es-

tablishing continuing mechanisms for communica-

tion between employers and their employees through

Federal assistance to the formation and operation of

labor management committees;

h- To foster improvements in occupational safety

and health and other working conditions in the south-

ern California electrical industry; and

i- To engage in any other, lawful activities inciden-

tal or related to the accomplishment of these pur-

poses.

The Trustees shall have the sole authority to deter-

mine which of the aforedescribed program objectives

shall be pursued. This trust is also established for

the purpose of paying the necessary costs of adminis-

tering and continuing this Trust and for accumulation

of necessary reserves.

Section 3(1) of ERISA defines the term “employee welfare

benefit plan” to include:

... any plan, fund, or program which was heretofore

or is hereafter established or maintained by an em-

ployer or by an employee organization, or by both,

to the extent that such plan, fund, or program was

established or is maintained for the purpose of pro-

viding for its participants or their beneficiaries,

through the purchase of insurance or otherwise, (A)

medical, surgical, or hospital care or benefits, or

benefits in the event of sickness, accident, disability,

death or unemployment, or vacation benefits, ap-

prenticeship or other training programs, or day care

centers, scholarship funds, or prepaid legal services,

ASI

or (B) any benefit described in section 302(c) of the

Labor-Management Relations Act, 1947 (other than

pensions on retirement or death, and insurance to

provide such pensions).

Based on the information you submitted, it is the position of

the Department of Labor (the Department) that SCLMCC is

not an employee welfare benefit plan within the meaning of

section 3(1) of title I of ERISA. SCLMCC does not provide

any benefit described in section 3(1)(A) of ERISA. Further,

it is the Department’s position that section 3( )(B) of ERISA

does not mean that every arrangement described in section

302(c) of the Labor Management Relations Act of 1947 (the

LMRA) constitutes an employee welfare benefit plan within

the meaning of section 3(1) of ERISA. Only those arrange-

iments described in section 302(c) of the LMRA that provide

benefits to participants or their beneficiaries would constitute

employee welfare benefit plans.

SCLMCC does not provide, in the Department’s view, any

“benefit” to participants or their beneficiaries within the mean-

ing of title I of ERISA. Accordingly, SCLMCC would not be

covered under title I of ERISA since there is also no indication

it is an employee pension benefit plan.

This letter constitutes an advisory opinion under ERISA Pro-

cedure 76-1. Accordingly, this letter is issued subject to the

provisions of the procedure, including section 10 thereof relat-

ing to the effect of advisory opinion.

Sincerely,

Elliot I. Daniel

Acting Assistant Administrator

for Regulations and Interpretations

A5S2

APPENDIX H

Pertinent Statutes and Rules

SECTION 3(1) OF ERISA; 29 U.S.C. § 1002(1).

§ 3. For purposes of this title: (1) The terms “employee

welfare benefit plan” and “welfare plan” mean any plan, fund,

or program which was heretofore or is hereafter established

or maintained by an employer or by an employee organization,

or by both, to the extent that such plan, fund, or program was

established or is maintained for the purpose of providing for

its participants or their beneficiaries, through the purchase of

insurance or otherwise, (A) medical, surgical, or hospital care

or benefits, or benefits in the event of sickness, accident,

disability, death or unemployment, or vacation benefits, ap-

prenticeship or other training programs, or day care centers,

scholarship funds, or prepaid legal services, or (B) any benefit

described in 302(c) of the Labor Management Relations Act,

1947 (other than pensions on retirement or death, and insurance

to provide such pensions).

SECTION 502(g)(2) OF ERISA; 29 U.S.C. § 1132(g)(2)

In any action under this title by a fiduciary for or on behalf

of a plan to enforce section 515 in which a judgment in favor

of the plan is awarded, the court shall award the plan —

(A) the unpaid contributions,

(B) interest on the unpaid contributions,

(i) interest on the unpaid contributions, or

(ii) liquidated damages provided for under the plan

in an amount not in excess of 20 percent (or such

higher percentage as may be permitted under Fed-

eral or State law) of the amount determined by the

court under subparagraph (A)

A53

(D) reasonable attorney’s fees and costs of the action, to

be paid by the defendant, and

(E) such other legal or equitable relief as the court deems

appropriate. For purposes of this paragraph, interest

on unpaid contributions shall be determined by using

the rate provided under the plan, or, if none, the rate

prescribed under section 6621 of the Internal Revenue

Code of 1954.

SECTION 505 OF ERISA; 29 U.S.C. § 1135

§ 505. Subject to title II] and § 109, the Secretary may

prescribe such regulations as he finds necessary or appropriate

to carry out the provisions of this title. Among other things,

such regulations may define accounting, technical, and trade

terms used in such provisions; may prescribe forms; and may

provide for the keeping of books and records, and for the

inspection of such books and records (subject to § 504(a) and

(b)).

SECTION 514(a) OF ERISA; 29 U.S.C. § 1144(a)

§ 514(a). Except as provided in sub-section (b) of this sec-

tion, the provisions of this title and title IV shall supersede

any and all State laws insofar as they may now of hereafter

relate to any employee benefit plan described in § 4(a) and

not exempt under § 4(b). This section shall take effect on

January |, 1975.

SECTION 514(d) OF ERISA; 29 U.S.C. § 1144(d)

§ $14(d). Nothing in this title shall be construed to alter.

amend, modify, invalidate, impair, or supersede any law of

the United States (except as provided in § 111 and § 507(b))

or any rule or regulation issued under any such law

A54

SECTION 515 OF ERISA; 29 U.S.C. § 1145

§ 515. Every employer who is obligated to make contribu-

tions to a multiemployer plan under the terms of the plan or

under the terms of a collectively bargained agreement shall,

to the extent not inconsistent with law, make such contributions

in accordance with the terms and conditions of such plan or

such agreement.

SECTION 301(a) OF THE LMRA; 29 U.S.C. § 185(a)

Suits for violation of contracts between an employer and a

labor organization representing employees in an industry af-

fecting commerce as defined in this chapter, or between any

such labor organizations, may be brought in any district court

of the United States having jurisdiction of the parties, without

respect to the amount in controversy or without regard to the

citizenship of the parties.

SECTION 302(c) OF THE LMRA; 29 U.S.C. § 186(c)

§ 302(c). Exceptions. The provisions of this section shall

not be applicable (1) in respect to any money or other thing

of value payable by an employer to any of his employees

whose established duties include acting openly for such em-

ployer in matters of labor relations or personnel administration

or to any representative of his employees, or to any officer or

employee of a labor organization, who is also an employee or

former employee of such employer, as compensation for, or

by reason of, his service as an employee of such employer;

(2) with respect to the payment or delivery of any money or

other thing of value in satisfaction of a judgment of any court

or a decision or award of an arbitrator or impartial chairman

Or in compromise, adjustment, settlement, or release of any

claim, complaint, grievance, or dispute in the absence of fraud

A5S5

or duress; (3) with respect to the sale or purchase of an article

or commodity at the prevailing market price in the regular

course of business; (4) with respect to money deducted from

the wages of employees in payment of membership dues in a

labor organization: Provided, That the employer has received

from each employee, on whose account such deductions are

made, a written assignment which shall not be irrevocable for

a period of more than one year, or beyond the termination

date of the applicable collective agreement, whichever occurs

sooner; (5) with respect to money or other thing of value paid

to a trust fund established by such representative, for the sole

and exclusive benefit of the employees of such employer, and

their families and dependents (or of such employees, families,

and dependents jointly with the employees of other employers

making similar payments, and their families and dependents):

Provided, That (A) such payments are held in trust for the

purpose of paying, either from principal or income or both.

for the benefit of employees, their families and dependents,

for medical or hospital care, pensions on retirement or death

of employees, compensation for injuries or illness resulting

from occupational activity Or insurance to provide any of the

foregoing, or unemployment benefits or life insurance, disabil-

ity and sickness insurance, or accident insurance; (B) the de-

tailed basis on which such payments are to be made is specified

in a written agreement with the employer, and employees and

employers are equally represented in the administration of such

fund, together with such neutral persons as the representatives

of the employers and the representatives of employees may

agree upon and in the event the employer and employee groups

deadlock on the administration of such fund and there are no

neutral persons empowered to break such deadlock, such agree-

ment provides that the two groups shall agree On an impartial

umpire to decide such dispute, or in event of their failure to

agree within a reasonable length of time. an impartial umpire.

A56

to decide such dispute shall, on petition of either group, be

appointed by the district court of the United States for the

district where the trust fund has its principal office, and shall

also contain provisions for an annual audit of the trust fund,

a Statement of the results of which shall be available for inspec-

tion by interested persons at the principal office of the trust

fund and at such other places as may be designated in such

written agreement; and (C) such payments as are intended to

be used for the purpose of providing pensions or annuities for

employees are made to a separate trust which provides that

the funds held therein cannot be used for any purpose other

than paying such pensions or annuities; (6) with respect to

money or other thing of value paid by any employer to a trust

fund established by such representative for the purpose of

pooled vacation, holiday, severance or similar benefits, or

detraying costs of apprenticeship or other training programs:

Provided, That the requirements of clause (B) of the proviso

to clause (5) of this subsection shall apply to such trust funds;

(7) with respect to money or other thing of value paid by any

employer to a pooled or individual trust fund established by

such representative for the purpose of (A) scholarships for the

benefit of employees, their families, and dependents for study

at educational institutions, or (B) child care centers for pre-

school and school age dependents of employees: Provided,

That no labor organization or employer shall be required to

bargain on the establishment of any such trust fund, and refusal

to do so shall not constitute an unfair labor practice: Provided

further, That the requirements of clause (B) of the proviso to

clause (5) of this subsection shall apply to such trust funds;

(8) with respect to money or any other thing of value paid by

any employer to a trust fund established by such representative

for the purpose of defraying the costs of legal services for

employees, their families, and dependents for counsel or plan

of their choice: Provided, That the requirements of clause (B)

A57

of the proviso to clause (5) of this subsection shall apply to

such trust funds: Provided further. That no such legal services

Shall be furnished: (A) to initiate any proceeding directed (i)

against any such employer or its officers or agents except in

workman’s compensation cases. or (ii) against such labor or-

ganization, or its parent or subordinate bodies, or their officers

or agents, or (iii) against any other employer or labor organi-

zation, or their officers or agents, in any matter arising under

subchapter II of this chapter or this chapter; and (B) in any

proceeding where a labor Organization would be prohibited

from defraying the costs of legal services by the provisions of

the Labor-Management Reporting and Disclosure Act of 1959;

or (9) with respect to money or other things of value paid by

an employer to a plant, area or industry wide labor management

committee established for one or more of the purposes set forth

in § 5(b) of the Labor Management Cooperation Act of 1978.

28 U.S.C. § 2072

§ 2072. Rules of Procedure and Evidence; Power to Pre-

scribe.

(a) The Supreme Court shall have the power to prescribe

general rules of practice and procedure and rules of evidence

for cases in the United States district courts (including proceed-

ings before magistrates thereof) and courts of appeals.

(b) Such rules shall not abridge, enlarge or modify any sub-

stantive right. All laws in conflict with such rules shall be of

no further force or effect after such rules have taken effect.

is final for the purposes of appeal under § 1291 of this title.

RULE 64 OF THE FEDERAL RULES OF CIVIL

PROCEDURE

Rule 64. Seizure of Person or Property. At the commence-

ment of and during the course of an action. al] remedies provid-

A58

ing for seizure of person or property for the purpose of securing

satisfaction of the judgment ultimately to be entered in the

action are available under the circumstances and in the manner

provided by the law of the state in which the district court is

held, existing at the time the remedy is sought, subject to the

following qualifications: (1) any existing statute of the United

States governs to the extent to which it is applicable; (2) the

action in which any of the foregoing remedies is used shall be

commenced and prosecuted or, if removed from a state court,

shall be prosecuted after removal, pursuant to these rules. The

remedies thus available include arrest, attachment, garnish-

ment, replevin, sequestration, and other corresponding or equi-

valent remedies, however designated and regardless of whether

by state procedure the remedy is ancillary to an action or must

be obtained by an independent action.

RULE 69(a) OF THE FEDERAL RULES OF CIVIL

PROCEDURE

Rule 69. Execution. (a) In General. Process to enforce a

judgment for the payment of money shall be a writ of execution,

unless the court directs otherwise. The procedure on execution,

in proceedings supplementary to and in aid of a judgment, and

in proceedings on and in aid of execution shall be in accordance

with the practice and procedure of the state in which the district

court is held, existing at the time the remedy is sought, except

that any statute of the United States governs to the extent that

it is applicable. In aid of the judgment or execution, the judg-

ment creditor or a successor in interest when that interest

appears of record, may obtain discovery from any person,

including the judgment debtor, in the manner provided in these

rules or in the manner provided by the practice of the state in

which the district court is held.

AS9

-abor Management Cooperation Act of 1978

ASSISTANCE TO PLANT. AREA, AND INDUSTRY WIDE

Sec. 6

LABOR MANAGEMENT COMMITTEES

(a) This section may be cited as the “Labor Management

Cooperation Act of 1978”.

(b) It is the Purpose of this section

(1)

(6)

(7)

to improve communication between representatives

of labor and management;

to provide workers and employers with opportunities

to study and explore new and innovative joint ap-

proaches to achieving organizational effectiveness:

to assist workers and employers in solving problems

of mutual concern not Susceptible to resolution

within the collective bargaining process:

to study and explore ways of eliminating potential

problems which reduce the competitiveness and in-

hibit the economic development of the plant, area

or industry;

to enhance the involvement of workers in making

decisions that affect their working lives:

to expand and improve working relationships be-

tween workers and managers; and

to encourage free collective bargaining by establish-

ing continuing mechanisms for communication be-

tween employers and their employees through Fed-

eral assistance to the formation and Operation of

labor management committees.

Section 203 of the Labor-Management Relations

Act, 1947, is amended by adding at the end thereof

the following new subsection:

(2)

A60

“(e) The Service is authorized and directed to en-

courage and support the establishment and operation

of joint labor management activities conducted by

plant, area, and industrywide committees designed

to improve labor management relationships, job sec-

urity and organizational effectiveness, in accordance

with the provisions of section 205A.”.

Title II of the Labor-Management Relations Act,

1947 is amended by adding after section 205 the

following new section:

“SEC. 205A.

(a) (1)

—

“(b) (1)

The Service is authorized and directed to provide

assistance in the establishment and operation of

plant, area and industrywide labor management

committees which —

“(A) have been organized jointly by employers and

labor organizations representing employees in that

plant, area, or industry; and

“(B) are established for the purpose of improving

labor management relationships, job security, or-

ganizational effectiveness, enhancing economic de-

velopment or involving workers in decisions affect-

ing their jobs including improving communication

with respect to subjects of mutual interest and con-

cem.

) The Service is authorized and directed to enter into

contracts and to make grants, where necessary or

appropriate, to fulfill its responsibilities under this

section.

No grant may be made, no contract may be entered

into and no other assistance may be provided under

the provisions of this section to a plant labor manage-

ment committee unless the employees in that plant

are represented by a labor organization and there is

(d)

“(2)

“(3)

A6él

in effect at that plant a collective bargaining agree-

ment.

No grant may be made, no contract may be entered

into and no other assistance may be provided under

the provisions of this section to an area or indus-

trywide labor management committee unless its

Participants include any labor Organizations cer-

tified or recognized as the representative of the

employees of an employer participating in such

committee. Nothing is this clause shall prohibit

Participation in an area or industrywide committee

by an employer whose employees are not rep-

resented by a labor organization.

No grant may be made under the provisions of this

section to any labor management committee which

the Service finds to have as one of its purposes the

discouragement of the exercise of rights contained

in section 7 of the National Labor Relations Act

(29 U.S.C. 157), or the interference with collective

bargaining in any plant, or industry.

“(c) The Service shall Carry Out the provisions of

this section through an office established for

that purpose.

“(d) There are authorized to be appropriated to

carry out the provisions of this section

$10,000,000 for the fiscal year 1979, and

such sums as may be necessary thereafter.”

Section 302(c) of the Labor Management Relations Act.

1947, is amended by striking the word “or” after the

semicolon at the end of subparagraph (7) thereof and by

inserting the following before the period at the end

thereof: “; or (9) with respect to money or other things

of value paid by an employer to a plant, area or industry-

A62

wide labor management committee established for one

or more of the purposes set forth in section 5(b) of the

Labor Management Cooperation Act of 1978”.

(e) Nothing in this section or the amendments made by this

section shall affect the terms and conditions of any collec-

tive bargaining agreement whether in effect prior to or

entered into after the date of enactment of this section.

MASSACHUSETTS G.L. c. 254, § 1

§ 1. Labor performed; employees; trustee or trustees. A per-

son to whom a debt is due for personal labor performed in the

erection, alteration, repair or removal of a building or structure

upon land, by virtue of an agreement with, or by consent of,

the owner of such building or structure, or of a person having

authority from or rightfully acting for such owner in procuring

or furnishing such labor, shall, under the provisions of this

chapter, other than sections 3 and 4, have a lien upon such

building or structure and upon the interest of the owner thereof

in the lot of land upon which it is situated, for not more than

eighteen days’ work actually performed during the forty days

next prior to his filing a statement as provided in section 8.

For purposes of this chapter, a person shall include any

employee of any employer and the trustee or trustees of any

fund or funds, established pursuant to se

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