LABORERS HEALTH AND WELFARE TRUST FUND FOR NORTHERN CALIFORNIA, ET
AL., PETITIONERS V. ADVANCED LIGHTWEIGHT CONCRETE CO., INC.

   No. 85-2079

   In the Supreme Court of the United States

   October Term, 1986

   On Writ of Certiorari to the United States Court of Appeals for the
Ninth Circuit

   Brief for the United States As Amicus Curiae Supporting Petitioners

            TABLE OF CONTENTS
   Question presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      Sections 502 and 515 of ERISA confer jurisdiction on the
      approptiate dsitrict court to enforce an employer's
      contribution obligations based on the duty under Section
      8(a)(5) of the NLRA to honor the terms of an expired collective
      bargaining agreement
   Conclusion

                          QUESTION PRESENTED

   Whether a federal district court has jurisdiction under Sections
502 and 515 of the Employee Retirement Income Security Act of 1974, 29
U.S.C. 1132 and 1145, over an action by the trustees of a
multiemployer employee benefit plan to collect contributions from a
delinquent employer, where the employer's alleged obligation to make
contributions arises from its duty under Section 8(a)(5) of the
National Labor Relations Act, 29 U.S.C. 158(a)(5), to refrain from
unliaterally changing terms and conditions of employment during
post-contract-expiration collective bargaining.

                     INTEREST OF THE UNITED STATES

   Several agencies of the United States have a substantial interest
in the proper resolution of this case.  The Secretary of Labor
enforces the fiduciary responsibility provisions of Title I of the
Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. (&
Supp. III), 1001 et seq., as amended by the Multiemployer Pension Plan
Amendments Act of 1980 (MPPAA), Pub. L. No. 96-364, 94 Stat. 1208,
which have been interpreted to require trustees of multiemployer
employee benefit plans to act diligently and systematically to collect
delinquent contributions owed to such plans;  the Secretary thus has a
strong, albeit indirect, interest in ensuring that plan trustees have
an effective mechanism for collecting such delinquent contributions,
especially since the Secretary himself lacks standing under ERISA to
file collection suits.  The Pension Benefit Guaranty Corporation
(PBGC) administers the plan termination insurance program established
by Title IV of ERISA, a program under which PBGC assumes
responsibility for paying pension benefits to the participants and
beneficiaries of terminated plans that are inadequately funded;  PBGC
therefore has a strong interest in assuring that plan trustees can and
do collect all required employer contributions.  Finally, the National
Labor Relations Board (NLRB) administers the unfair labor practice
provisions of the National Labor Relations Act (NLRA), 29 U.S.C. (&
Supp. III) 151 et seq., which have been interpreted to prohibit an
employer from unilaterally changing terms and conditions of employment
during post-contract-expiration collective bargaining;  the NLRB has
an interest both in preserving the viability of its established
procedures for resolving unfair labor practice charges and in avoiding
excessive entanglement in collection disputes between employee benefit
plans and employers.  This Court invited the Solicitor General to
express the views of the United States at the petition stage of this
case.

                               STATEMENT

   1. Petitioners are multiemployer employee benefit plans (Pet. 2).
They were established by collective bargaining agreements and trust
agreements between the Northern California District Council of
Laborers and certain multiemployer bargaining associations
representing construction industry employers in Northern California,
and between the District Council of Plasterers and Cement Masons of
Northern California and the same multiemployer associations (ibid.).
From at least 1980 to 1983, respondent, Advanced Lightweight Concrete
Company, Inc., was a member of one of these multiemployer bargaining
associations, Associated General Contractors of California (AGC), and
thus was a party to AGC'S collective bargaining agreements with the
two unions (id. at 2-3;  Pet. App. A2-A3).  Those agreements required
respondent to make specified monthly contributions to petitioners for
each hour that its covered employees worked and to submit its books
and records for audit upon petitioners' request (Pet. 2-3;  Pet. App.
A4).

   By letter dated April 1, 1983, respondent notified the unions that
it was withdrawing bargaining authority from AGC (Pet. 3;  Pet. App.
A4).  Respondent indicated that it was ready to negotiate
independently with the unions (id. at A4-A5;  Pet. 3), but that it
would not be bound by AGC'S master agreements, or any of its successor
agreements, after June 15, 1983, the expiration date of the extant
agreements (Pet. App. A4).  While the subsequent bargaining history
between respondent and the unions is disputed (id. at A5 & n.1), it is
clear that respondent did not enter into any new collective bargaining
agreements with the unions, ceased making contributions to petitioners
on June 15, 1983, and refused to permit petitioners to audit its books
and records for the period after June 15, 1983 (id. at A5-A7 & n.2).
In November 1983, the Regional Director of the National Labor
Relations Board (NLRB) refused to issue a complaint based on a charge
by one of the unions that respondent had failed to bargain in good
faith (id. at A5 n.1).

   2. In December 1983, petitioners filed suit against respondent in
the United States District Court for the Northern District of
California, seeking to collect unpaid contributions for the period
after June 15, 1983, while post-contract expiration negotiations were
pending (Pet. App. A6).  /1/ Petitioners alleged, inter alia, that
respondent was bound under Section 8(a) (5) of the National Labor
Relations Act (NLRA), 29 U.S.C. 158(a)(5), to honor during that period
the contribution obligations established by the expired collective
bargaining agreements, and that the court had jurisdiction under
Section 301 of the Labor-management Relations Act of 1947 (LMRA), 29
U.S.C. 185, and Sections 502 and 515 of the Employee Retirement Income
Security Act of 1974 (ERISA), 29 U.S.C. 1132, 1145, to enforce this
obligation (Pet. App. A6-A7;  Pet. 3).  Respondent answered, inter
alia, that any obligation it might have under the NLRA was not within
the jurisdiction of the district court and that, in any event, its
negotiations with the unions were at "impasse" and it therefore had no
NLRA-BASED contribution obligation (Br. in Opp. 2, n.1, 3).  The court
granted summary judgment for respondent (Pet. App. A7-A8;  Pet. App.
B).

   3. The court of appeals affirmed on the ground that the district
court had no jurisdiction under either Section 301 or ERISA (Pet. App.
A1-A36).  It first noted that "an employer's failure to honor the
terms and conditions of an expired collective bargaining agreement
pending negotiations on a new agreement constitutes bad faith
bargaining in breach of sections 8(a)(1), 8(a)(5) and 8(d) of the
(NLRA)" (Pet. App. A9-A10).  But, it added, "a collective bargaining
agreement does not 'survive' (its expiration) in the sense that it
continues as a legally operative document" (id. at A12).  Rather, the
court said, "the agreement's terms 'survive' in order to define the
parameters of the employer's obligation under section 8(a)(5) to
maintain the status quo during negotiations" (ibid.).  Accordingly the
court found that respondent was entitled to "summary judgment on the
trust funds' section 301-based causes of action" (Pet. App. A16),
since Section 301 confers jurisdiction on district courts only to
enforce rights created by a collective bargaining agreement, and
petitioners' suit sought to enforce rights created by the NLRA, not
rights created by a collective bargaining agreement (Pet. App.
A12-A13, A16).

   The court then turned to the question whether the district court
had jurisdiction under Sections 502 and 515 of ERISA to enforce
respondent's alleged NLRA-BASED post-contract-expiration contribution
obligation (Pet. App. A16-A31).  The court noted that Section 502
confers jurisdiction on the district courts to enforce obligations
arising under Section 515 (Pet. App. A17 n.7) and that Section 515
requires an employer "'who is obligated to make contributions to a
multiemployer plan * * * under the terms of a collectively bargained
agreement (to) * * * make such contributions in accordance with the
terms and conditions of * * * such agreement'" (Pet. App. A16, quoting
29 U.S.C. 1145).  /2/ The court further noted that "a phrase similar
to 'obligated to make contributions,' which appears in section 515, is
defined elsewhere in (Section 4212(a) of) ERISA as 'an obligation to
contribute arising * * * (1) under one or more collective bargaining
(or related) agreements, or (2) as a result of a duty under applicable
labor-management relations law'" (Pet. App. A21 (quoting 29 U.S.C.
1392)a)), and that "(s)ubpart 2 of this definition would seem to
include obligations created by section 8(a)(5)" of the NLRA (ibid.).
But the court also observed that Section 4212(a)'s definition of
"obligation to contribute" is applicable only to the part of ERISA
that imposes liability on employers upon withdrawal from multiemployer
pension plans (Pet. App. A21-A22), /3/ and said that the "similarity
between the phraseology in section 515 and that in (the first subpart
of the Section 4212(a) definition indicates) * * * that Congress
intended section 515 liability to be less extensive than withdrawal
liability" (id. at A23-A24).  And, the court added, there is "(n)o
indication * * * that, during its deliberations * * * Congress even
considered the problem of continuing obligations from expried
agreements much less tha(t) it had a view on resolving any conflict
between section 515 and the primary jurisdiction of the NLRB" (id. at
A25-A16 (footnote omitted)).

   In the absence of "useful statutory or Congressional guidance on
section 515," the court concluded that the matter had to be decided
"by the application of accepted labor law principles" (Pet. App. A31).
 It then said that, "(w)hen presented with a dispute that involves
adjudicating conduct which 'is arguably within the compass of
(Section) 7 or (Section) 8 of the NLRA,' a federal court must defer to
the primary jurisdiction of the NLRB" (id. at A31-A32 (quoting San
Diego Building Trades Council v. Garmon, 359 U.S. 236, 245 (1959)).
Applying this principle, the court determined that respondent's
"failure to pay contributions after the master agreements' expiration
is, at least, an arguable unfair labor practice" (Pet. App. A33);
that "(w)hile admittedly the failure to pay may also violate section
515 of ERISA, adjudication of the merits depends entirely on the
section 8(a)(5) determination" (id. at A33-A34);  and that "(m)aking
this underlying labor law determination is exclusively an NLRB matter"
(id. at A34 (footnote omitted)).  Accordingly, having found "no
persuasive evidence in either the plain words or legislative history
of ERISA * * * that Congress intended section 515 to be an exception
to the general rule of NLRB preemption" (id. at A35-A36);  the court
held that "the primary jurisdiction of the (NLRB) preempts
(petitioners') * * * suit in district court under sections 502 and 515
of (ERISA) to recover delinquent contributions accrued after a
collective bargaining agreement has expired" (id. at A2).  /4/

                          SUMMARY OF ARGUMENT

   1. The court below erred in concluding that the district court
lacked jurisdiction over petitioners' suit merely because it required
resolution of an unfair labor practice question.  While the NLRB
generally has primary jurisdiction to resolve unfair labor practice
questions, Congress has at times granted federal courts jurisdiction
over particular claims notwithstanding the need to resolve unfair
labor practice questions.  See, e.g., Local 20, Teamsters Union v.
Morton, 377 U.S. 252, 258-259 & n.13 (1964);  Connell Construction Co.
v. Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 626-635
(1975).  If, as we contend, Sections 502 and 515 of ERISA confer
jurisdiction on the district courts to enforce an employer's
contribution obligations based on the employer's NLRA duty to honor
the terms of an expired contract, then the fact that the court must
resolve an unfair labor practice question is not an obstable.

   2. Sections 502 and 515 of ERISA confer jurisdiction on federal
district courts over actions by plan fiduciaries to require, among
other things, any "employer who is obligated to make contributions to
a multiemployer plan under the terms of * * * a collectively bargained
agreement * * * (to) make such contributions * * *" (29 U.S.C. 1145).
Standing alone, the phrase "obligated to make contributions * * *
under the terms of a collectively bargained agreement" could plausibly
be read in either of two ways:  it could be read, as the court below
read it, to refer only to obligations whose legal source is the
contract itself;  but it can also be read, as we suggest the statutory
context requires, to include obligations whose legal source is a
public-law duty to honor "the terms of a collectively bargained
agreement" in specified circumstances.

   The purposes of Section 515 strongly suggest the broader reading.
Congress added Section 515 to ERISA in 1980 because delinquent
contributions were creating serious financial problems for
multiemployer plans and the remedies available for collecting
delinquent contributions were inefficient, cumbersome, and costly.
Congress enacted Section 515 for the explicit purpose of providing
plan trustees, who have a fiduciary duty to collect all contributions
owed to a plan, with a single, efficient remedy for the collection of
all delinquent contributions, whatever the source of the contribution
obligation or the timing of the delinquency.  A determination that
Section 515, which clearly covers delinquencies during the period of a
collective bargaining agreement, does not cover the employer's
public-law obligation to continue to honor the terms of the agreement
for a period thereafter would defeat the objective with which Congress
legislated.

   Congress intended Section 515 and the separate provisions of ERISA
dealing with withdrawal liability to form an integrated enforcement
scheme.  Section 4212(a) of ERISA states that, for purposes of the
withdrawal liability provisions, the term "obligation to contribute"
includes obligations arising "as a result of a duty under applicable
labor-management relations law" (29 U.S.C. 1392(a)).  While the
definition in Section 4212(a) is not technically applicable to Section
515, it is reasonable to conclude that Congress intended that Section
515 and Section 4212(a) would be given the same scope.  Applying
different definitions to the contribution obligations identified in
these provisions would mean that trustees have no independent means
for enforcing an employer's obligation to fund its employees' pensions
between the expiration date of the employer's collective bargaining
agreement and the date of a new agreement or the employer's withdrawal
from the plan.  There is no evidence that Congress intended to create
such an unwarranted discontinuity in its integrated enforcement
scheme.

   The alternative to a Section 515 remedy is to require plan trustees
to proceed by way of an unfair labor practice charge, which would have
to be filed with and prosecuted by the General Counsel of the NLRB.
This NLRA enforcement machinery is simply not designed for the
efficient collection of all pension fund contributions:  the General
Counsel of the NLRB has unreviewable discretion to determine whether
an unfair labor practice complaint should issue, and she properly
exercises that discretion in accordance with her own enforcement
priorities;  discovery is not available in NLRB proceedings;  the
General Counsel or the NLRB itself may settle a case without obtaining
the consent of the charging party;  and, because it cannot impost
punitive sanctions, the NLRB has a limited ability to deter employers
from becoming delinquent in their contribution payments.  In contrast,
Section 515 provides trustees with a direct cause of action that they
alone control;  allows liberal discovery;  and requires courts to
award attorneys fees and liquidated damages to prevailing trustees.

   3. Whatever ambiguity exists in Section 515's coverage cannot be
resolved by reference to the general rule that the NLRB has primary
jurisdiction to resolve unfair labor practice questions.  Reference to
the general primary jurisdiction rule only begs the question whether
Congress intended, in Section 515, to establish an exception that
would allow federal courts to address collateral unfair labor practice
questions that arise in a delinquent contribution collection action.
That question must be resolved by reference to the language,
legislative history, and purposes of Section 515.

                               ARGUMENT

 SECTIONS 502 AND 515 OF ERISA CONFER JURISDICTION ON THE APPROPRIATE
DISTRICT COURT TO ENFORCE AN EMPLOYER'S CONTRIBUTION OBLIGATIONS BASED
ON THE DUTY UNDER SECTION 8(a)(5) OF THE NLRA TO HONOR THE TERMS OF AN
EXPIRED COLLECTIVE BARGAINING AGREEMENT

   1. The court of appeals disposed of this case by ruling that,
whether or not Section 515 covers the obligation at issue here, "the
primary jurisdiction of the (NLRB) preempts (petitioners') suit in
district court under sections 502 and 515 of (ERISA) to recover
delinquent contributions accrued after (the) collective bargaining
agreement(s) ha(d) expired" (Pet. App. A2).  This ruling was error.
We agree with the court that "(respondent's) failure to pay
contributions after the master agreements' expiration (was), at least,
an arguable unfair labor practice" (id. at A33) and that "adjudication
of the merits (of petitioners' claims) depends entirely on the section
8(a)(5) determination" (id. at A43).  But it is not the case that
"this underlying labor law determination is exclusively an NLRB
matter" (ibid.).

   As a general rule, of course, the NLRA does vest the NLRB with
primary jurisdiction to decide unfair labor practice questions.
"Congress * * * considered that centralized administration of
specially designed procedures was necessary to obtain uniform
application of (the NLRA'S) substantive rules and to avoid th(o)se
diversities and conflicts likely to result from a variety of local
procedures and attitudes toward labor controversies" (Garner v.
Teamsters Union, 346 U.S. 485, 490 (1953)).  Accordingly, "(w)hen an
activity is arguably subject to (Section) 7 or (Section) 8 of the
(NLRA)," this Court has said that "the * * * federal courts must defer
to the exclusive competence of the (NLRB) * * *" (San Diego Building
Trades Council v. Garmon, 359 U.S. at 245)).

   Congress has, however, granted federal courts jurisdiction to
decide certain kinds oc claims even though the decision requires
resolution of an unfair labor practice question.  For example, Section
303 of the LMRA (29 U.S.C. 187) provides that anyone injured by a
violation of Section 8(b)(4) of the NLRA (29 U.S.C. 158(b)(4)) may
recover damages in court;  in Local 20, Teamsters Union v. Morton, 377
U.S. 252, 258-259 & n.13 (1964), this Court accordingly acknowledged
that courts have concurrent jurisdiction with the NLRB to determine
whether challenged conduct violates the "prohibitions embodied in
(Section) 8(b)(4)." Similarly, Section 301 of the LMRA (29 U.S.C. 185)
empowers courts to entertain suits concerning alleged breaches of
collective bargaining agreements;  in Smith v. Evening News Ass'n, 371
U.S. 195, 197 (1962), this Court thus said that "(t)he authority of
the (NLRB) to deal with an unfair labor practice which also violates a
collective bargaining (agreement) is not displaced by (Section) 301
(of the LMRA), but it is not exclusive and does not destroy the
jurisdiction of the courts in suits under (Section) 301." And, without
exhausting the list of examples, Section 1 of the Sherman Act (15
U.S.C. 1) makes it unlawful to enter into agreements that impose
unreasonable restraints of trade;  in Connell Construction Co. v.
Plumbers & Steamfitters Local Union No. 100, 421 U.S. 616, 625-635
(1975), this Court held that therefore, in an anti-trust suit alleging
a violation of Section 1 of the Sherman Act, a federal court had
jurisdiction to decide whether a challenged collective bargaining
agreement was proscribed by the "hot cargo" provisions of Section 8(e)
of the NLRA (29 U.S.C. 158(e)) and therefore constituted an
unreasonable restraint on trade (in violation of Section 1 of the
Sherman Act).  See also Kaiser Steel Corp. v. Mulling, 455 U.S. 72,
83-86 (1982) (in suit under Section 502 of ERISA to recover delinquent
contributions required by a collective agreement, a federal court has
jurisdiction to determine whether the agreement violates Section 8(e)
of the NLRA);  Vaca v. Sipes, 386 U.S. 171, 176-188 (1967) (a federal
court may adjudicate duty of fair representation claim in a suit udner
Section 301 of the LMRA even though the NLRB has concurrent
jurisdiction to determine whether the same claim violates Section 8(b)
of the NLRA).

   These cases show that federal courts may decide unfair labor
practice questions that "emerge as collateral issues in suits brought
under independent federal remedies" (Connell Construction Co. v.
Plumbers & Steamfitters Local Union No. 100, 421 U.S. at 626).  The
question in this case is simply whether, in Sections 502 and 515 of
ERISA, Congress has created an independent federal remedy for the
enforcement of contribution obligations including the obligations at
issue here.  If so, the district court had jurisdiction to decide the
unfair labor practice question that arises in connection with
adjudicating these obligations -- i.e., whether respondent's failure
to pay the contributions in question violated its duty under Section
8(a)(5) of the NLRA to refrain from unilaterally changing terms and
conditions of employment during post-contract expiration collective
bargaining.  /5/

   2. In our view, Sections 502 and 515 of ERISA do in fact create an
independent federal remedy for the enforcement of a contribution
obligation arising from the duty under Section 8(a)(5) of the NLRA to
refrain from unilaterally changing terms and conditions of employment
during post-contract-expiration collective bargaining.

   a. Section 502(a)(3) of ERISA gives district courts jurisdiction
over, inter alia, civil actions by plan fiduciaries to enjoin
violations of Title I of ERISA, to redress such violations, and
generally to enforce the provisions of Title I.  29 U.S.C. 1132(a)(3).
 Section 515, which requires employers to make contributions in
accordance with their collective bargaining agreements, is part of
Title I of ERISA.  29 U.S.C. 1145.  The question, therefore, is
whether Section 515 covers an employer's obligation under Section
8(a))(5) of the NLRA to continue making contributions to a pension
plan, in accordance with the terms of an expired agreement, during
post-contract-expiration collective bargaining.

   b. We start with the language of Section 515.  It states (29 U.S.C.
1145) that "(e)very 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." The key phrase
is "obligated to make contributions * * * under the terms of a
collectively bargained agreement." That phrase has two plausible
readings.

   The phrase could be read to refer only to contribution obligations
that arise from the collective bargaining agreement itself.  See
Mo-Kan Teamsters Pension Fund v. Botsford Ready Mix Co., 605 F. Supp.
1441, 1444-1446 (W.D. Mo. 1985).  On that view, Section 515 would not
cover an NLRA-based contribution obligation, since the legal source of
that obligation is not the collective bargaining agreement itself, but
rather public law.  See Hinson v. NLRB, 428 F.2d 133, 139 (8th Cir.
1970);  Peerless Roofing Co. v. NLRB, 641 F.2d 734, 736 (9th Cir.
1981).  The phrase can also, however, be read to refer to any
contribution obligation that is defined by "the terms of a
collectively bargained agreement." On that view, Section 515 would
cover an NLRA-based contribution obligation, since the extent of the
obligation would be defined by the "terms of a collectively bargained
agreement." See Laborers Health & Welfare Trust Fund v. Hess, 594 F.
Supp. 273, 279-280 (N.D. Cal. 1984);  see generally American
Distributing Co. v. NLRB, 715 F.2d 446, 452 (9th Cir. 1983), cert.
denied, 466 U.S. 958 (1984) (emphasis added) (under the NLRA, "an
employer is required to maintain the status quo and make payments in
conformity with the terms of an expired written agreement");  Hinson
v. NLRB, 428 F.2d at 139 (emphasis added) ("(s)ince the status quo is
quite obviously defined by reference to the substantive terms of the
expired contract, it follows that, in a limited and special sense,
those pertinent contractual terms 'survive' the expiration date").
/6/

   In similar circumstances, where more than one interpretation of
ERISA'S language is plausible, this Court has said that it will "'look
to the provisions of the whole law, and to its object and policy'"
(Pilot Life Ins. Co. v. Dedeaux, No. 85-1043 (Apr. 6, 1987), slip op.
10 (citations omitted)).  See generally NLRB v. Lion Oil Co., 352 U.S.
282, 297 (1957) (Frankfurter, J., concurring in part and dissenting in
part).  Accordingly, to determine whether Congress intended to make
NLRA-based contribution obligations independently enforceable in
direct, ERISA-based, federal court actions, we turn to the
circumstances surrounding Section 515's enactment and the place that
Section 515 takes in the overall ERISA scheme.

   c. Section 515's legislative history suggests that Congress
intended to provide plan trustees with a single, efficient remedy for
the collection of all delinquent contributions.  Congress enacted
Section 515 as part of the Multiemployer Pension Plan Amendments Act
of 1980 (MPPAA), Pub. L. No. 96-364, 94 Stat. 1295.  In the MPPAA,
Congress attempted to address comprehensively the "problems which tend
to discourage the maintenance and growth of multiemployer pension
plans" (29 U.S.C. 1001a(c)(2)), and "to provide reasonable protection
for the interests of participants and beneficiaries of financially
distressed multiemployer pension plans" (29 U.S.C. 1001a(c)(3)).  To
that end, Congress revised the system by which the Pension Benefit
Guaranty Corporation guarantees benefits to participants in
multiemployer plans, mandated that employers withdrawing from
multiemployer plans contribute whatever share of the plans' unfunded
vested liabilities is attributable to their employees' prior
participation in such plans, and created new federal enforcement
mechanisms to facilitate the collection of both delinquent
contributions and the lump sum liabilities that employers incur upon
withdrawal from a plan.  /7/ See 29 U.S.C. 1132(g)(2), 1145,
1322a-1322b;  29 U.S.C. (& Supp. III) 1381-1461.  Section 515 is the
enforcement mechanism that Congress created to facilitate the
collection of delinquent contributions.

   Delinquencies were among "(t)he most significant, and the oldest,
day-to-day problem(s) faced by multiemployer plans" (Oversight of
ERISA, 1977:  Hearings on S. 2125 Before the Subcomm. on Labor of the
Senate Comm. on Human Resources, 95th Cong., 1st Sess. 391 (1977)
testimony of Theodore Groom) (hereinafter Hearings on S. 2125)), and
Congress had studies the delinquent contribution problem for some
time.  /8/ During this study, Congress learned that, where
delinquencies occur, plans lose investment income, incur increased
administrative expenses (for detecting and collecting delinquencies),
have greater difficulty formulating and meeting funding standards, and
must require nondelinquent employers to fund the pensions of
delinquent employers' employees.  See 126 Cong. Rec. 23039 (1980)
(remarks of Rep. Thompson);  Staff of the Senate Comm. on Labor and
Human Resources, 96th Cong., 2d Sess., The multiemployer Pension Plan
Amendments Act of 1980, S. 1076:  Summary and Analysis of
Consideration 43-44 (Comm. Print 1980) (hereinafter Comm. Print).  /9/
Moreover, Congress found that "(r)ecourse available under current law
for collecting delinquent contributions is insufficient and
unnecessarily cumbersome and costly" (126 Cong. Rec. 23039 (1980)
(remarks of Rep. Thompson)).  /10/ Thus, those who proposed and
supported Section 515's enactment described it as a mechanism that
would "permit trustees of plans to recover delinquent contributions
efficaciously" (id. at 23288 (remarks of Sen. Williams)), "foster the
preservation of the private multiemployer plan system * * * (by)
discourag(ing) delinquencies and simplofy(ing) delinquency collection"
(Comm. Print 44), and "clarify the law * * * by providing a direct,
unambiguous ERISA cause of action to a plan against a delinquent
employer" (126 Cong. Rec. 23039 (1980) (remarks of Rep. Thompson)).

   Section 515 thus provides a cause of action to collect amounts owed
"under the terms of the plan or under the terms of a collectively
bargained agreement." The legislative history, while not speaking
directly to the present issue, suggests that Congress intended to
cover the universe -- to provide plan trustees with a single,
efficient cause of action for collecting all delinquent contributions.
 See, e.g., 126 cong. Rec. 23039 (1980) (remarks of Rep. Thompson);
id. at 23288 (remarks of Sen. Williams).  Nothing in the legislative
history suggests that Congress attached any importance to the
difference between an employer obligated under a live agreement and an
employer statutorily bound to honor an expired one, or that Congress
intended to require trustees to recover pre-contract-expiration and
post-contract-expiration delinquencies in different forums.

   d. The argument that the term "obligated to make contributions" in
Section 515 should be read to cover contribution obligations arising
from the duty under Section 8(a)(5) of the NLRA to refrain from
unilaterally changing terms and conditions of employment during
post-contract-expiration collective bargaining is reinforced by the
definition of a comparable term that appears in the withdrawal
liability part of the statute.  Section 4212(a) of ERISA states that,
for purposes of the withdrawal liability part of the statute, an
employer has an "obligation to contribute" when it has "an obligation
to contribute arising (1) under one or more collective bargaining (or
related) agreements, or (2) as a result of a duty under applicable
labor-management relations law * * * " (29 U.S.C. 1392(a)).  The
second clause of this definition plainly permits arbitrators and
courts making withdrawal liability determinations to take into account
whether an employer has any contribution obligations arising from its
duties under the NLRA.  See Comm. Print 12-14;  Woodward Sand Co. v.
Western Conference of Teamsters Pension Trust Fund, 789 F.2d 691, 695
(9th Cir. 1986);  I.A.M. National Pension Trust Fund v. Schulze Tool &
Die Co., 564 F. Supp. 1285, 1289-1296 (N.D. Cal. 1983);  Garland Coal
Co., 7 Employee Benefits Cas. (BNA) 1771, 1779-1782 (Dreyer, Arb. June
10, 1986).  Because the delinquent contribution and withdrawal
liability provisions were enacted at the same time and play
compelementary roles in the MPPAA scheme, it is reasonable to conclude
that Congress intended the term "obligated to make contributions,"
which appears in Section 515, to have a meaning comparable to the term
"obligation to contribute," which appears in Section 4212(a).  /11/

   The Section 4212(a) definition of the "obligation to contribute"
applies only "(f)or purposes of (the withdrawal liability) part" of
ERISA (29 U.S.C. 1392(a)) and therefore cannot apply to Section 515 by
its "own force" (Nachman Corp. v. Pension Benefit Guaranty Corp., 446
U.S. 359, 370 n.14 (1980)).  But the definition in Section 4212(a)
"may otherwise reflect the meaning of the term() defined as used in
other Titles" of ERISA (ibid.).  Here, Congress expressly provided
that, for purposes of federal court enforcement, the delinquent
contribution and withdrawal liability provisions should be "treated in
the same manner" (29 U.S.C. 1451(b);  see also 29 U.S.C. 1401(d)) and
indicated that the two provisions addressed complementary aspects of
the same legislative concern.  See 126 Cong. Rec. 23288 (1980)
(remarks of Sen. Williams);  id. at 23039 (remarks of Rep. Thompson);
id. at 20180 (colloquy between Sen. Williams and Sen. Matsunaga).
Accordingly, the question whether an employer has a contribution
obligation arising from an NLRA-based duty should be equally
adjudicable by courts under Sections 515 and 4212(a) of ERISA.  /12/
See Woodward Sand Co. v. Western Conference of Teamsters Pension Trust
Fund, 789 F.2d 691 (9th Cir. 1986);  Carpenters Local Union No. 1846
v. Pratt-Farnsworth, Inc., 690 F.2d 489 (5th Cir. 1982), cert. denied,
464 U.S. 932 (1983);  cf. Northcross v. Memphis Board of Education,
412 U.S. 427, 428 (1973) (the similarity of language in two statutory
provisions is "a strong indication that the two statutes should be
interpreted pari passu").

   Moreover, the delinquent contribution and withdrawal liability
provisions from an integrated scheme under which plan trustees may use
federal law to require employers to fulfill their promises to fund
pensions for their employees.  The delinquent contribution provisions
ensure that, when an employer has become "obligated to make
contributions," it "shall, to the extent not inconsistent with law,
make such contributions in accordance with the terms and conditions of
such plan * * *" (29 U.S.C. 1145).  The withdrawal liability
provisions ensure that, when an employer "withdraws from a
multiemployer plan in a complete withdrawal * * * the employer (shall
be) liable to the plan" for a portion of the plan's unfunded vested
benefits, such that the burden of its employees' pensions will not
fall on the remaining employers or plan beneficiaries.  29 U.S.C.
1381(a)(1).  /13/ Together, the two provisions ensure that an
employer's obligation to fund its employees' pensions is fully
enforceable under ERISA with respect to the entire period for which
the employer's employees will have claims against the multiemployer
plan.  See 126 Cong. Rec. 23288 (1980) (remarks of Sen. Williams);
id. at 23039 (remarks of Rep. Thompson);  id. at 20180 (colloquy
between Sen. Williams and Sen. Matsunaga).

   Applying different definitions to the contribution obligations
identified in the delinquent contribution and withdrawal liability
provisions would create an unwarranted discontinuity in this
integrated enforcement machinery.  ERISA would provide plan trustees
with an independent means for enforcing an employer's obligations
arising (i) during the term of the underlying agreement and (ii) upon
withdrawal from the plan.  /14/ But, if the phrase "obligated to
contribute" in Section 515 does not mean the same thing as the phrase
"obligation to contribute" in Section 4212(a), ERISA would not provide
plan trustees with any means for enforcing an employer's obligations
with respect to the period between the expiration of the collective
bargaining agreement and the date of a new agreement or the employer's
withdrawal from the plan, even though the employer would require plan
trustees to credit all employee service performed during that period,
whether the contributions are ultimately recovered or not.  /15/

   Such a discontinuity in the statutory enforcement machinery would
be quite important.  Collective bargaining agreements typically have
only two-to-three year terms, and employees often continue working
(and negotiators continue bargaining) beyond the expiration dates of
those agreements.  Delinquencies in the payment of contributions
during this period are a routine and burdensome problem for
multiemployer pension plans.  We find no evidence that Congress
intended to leave such a discontinuity in the otherwise "comprehensive
and reticulated" scheme (Nachman Corp. v. Pension Benefit Guaranty
Corp., 446 U.S. 359, 361 (1980)) that it enacted specifically to
address the many "problems which tend to discourage the maintenance
and growth of multiemployer pension plans" and to "provide reasonable
protection for the interests of participants and beneficiaries of
financially distressed multiemployer pension plans" (29 U.S.C.
1001a(c)(2) and (3)).

   3. If plan trustees are not able to recover
post-contract-expiration delinquent contributions in suits under
Section 515, their only alternative is to file an unfair labor
practice charge with the NLRB.  That remedy is not suited to this
purpose.  ERISA imposes strict fiduciary duties of loyalty and care on
plan trustees /16/ and specifically deems plan trustees to have
violated these duties if they allow participating employers to gain
even temporary use of funds to which their plan is entitled.  /17/
This Court has accordingly stated that "ERISA clearly assumes that
trustees will act to ensure that a plan receives all funds to which it
is entitled" and that trustees are "responsibl(e) for assuring full
and prompt collection of contributions owed to the plan" (Central
States, Southeast & Southwest Areas Pension Fund v. Central Transport,
Inc., 472 U.S. 559, 571, 573 (1985)).  Interpreting Section 515 to
require trustees to resort to NLRA enforcement remedies for the
collection of post-contract-expiration delinquencies would greatly
impede the ability of plan trustees to carry out these fiduciary
tasks.

   The NLRA enforcement scheme is designed to facilitate the
resolution of labor disputes, not the collection of delinquent
contributions.  The NLRA, for example, vests the NLRB'S General
Counsel with "unreviewable discretion to refuse to institute an unfair
labor practice complaint" (Vaca v. Sipes, 386 U.S. at 182) and, in
exercising her discretion, the General Counsel is guided by numerous
practical considerations -- such as the seriousness of the offense and
the likelihood of its repetition, and the government resources
available for prosecution -- as well as the merits of the charge.  See
Roselle Shoe Corp., 135 N.L.R.B. 472, 475 (1962), enforced sub nom.
Textile Workers Union v. NLRB, 315 F.2d 41 (D.C. Cir. 1963);  see also
Container Systems Corp. v. NLRB, 521 F.2d 1166, 1171-1172 (2d Cir.
1975).  Thus, requiring plan trustees to resort to the NLRB may, in
limited circumstances, mean that they have no recourse for collecting
delinquencies notwithstanding the merits of their charge.
Furthermore, even where the General Counsel issues an unfair labor
practice complaint, the NLRB does not allow interested persons to
obtain discovery.  See NLRB v. Robbins Tire & Rubber Co., 437 U.S.
214, 236-242 (1978).  The denial of discovery may be particularly
detrimental to third parties such as trustees, who do not directly
participate in collective bargaining negotiations and whose interest
in collecting delinquent contributions may not align precisely with
interests of either the employer or the union.  /18/ Moreover, the
NLRA authorizes the General Counsel and the NLRB to settle unfair
labor practice charges without obtaining the charging party's consent
and for less than "make-whole" relief (see 29 U.S.C. 160(c);  29
C.F.R. 101.2, 101.4, 101.9(c));  thus, the trustees' interest in fully
collecting all contributions owed to a pension plan may be compromised
without their consent.  /19/ Finally, the NLRB cannot impose any type
of punitive sanction and thus has only a limited ability to deter
employers from becoming delinquent in the first place.  See Wisconsim
Dep't of Industry, Labor & Human Relations v. Gould, No. 84-1484 (Feb.
26, 1986), slip op. 5-6 & n.5;  Hassett Maintenance Corp., 260
N.L.R.B. 1211 (1982).

   In contrast, the ERISA enforcement scheme is specially designed to
"foster the preservation of the private multiemployer plan system * *
* (by) discourag(ing) delinquencies and simplify(ing) delinquency
collection" (Comm. Print 44).  Section 515 provides trustees with a
direct, unambiguous cause of action for collecting delinquencies.  The
trustees have control over the action and no third party can
compromise their interest in collecting all contributions owed to a
plan.  Moreover, liberal rules of discovery govern the action and
provide trustees with a means for determining whether and to what
extent contributions are actually owing and delinquent.  Finally,
Section 502(g)(2) of ERISA requires courts, where trustees are
victorious, to award reasonable attorney's fees, costs, unpaid
contributions, interest on the unpaid contributions, and an additional
amount equal to the greater of interest or specified liquidated
damages.  See 29 U.S.C. 1132(g)(2).  Thus, the ERISA enforcement
scheme adds some important muscle to the trustees' struggle against
delinquent contributors and delinquent contributions.

   When Congress added Section 515 to ERISA'S enforcement scheme, it
stated that "(r)ecourse available under current law for collecting
delinquent contributions (was) insufficient and unnecessarily
cumbersome and costly" (126 Cong. Rec. 23039 (1980) (remarks of Rep.
Thompson)).  NLRB enforcement proceedings were part of the
then-available recourse.  Accordingly, Congress could not have
intended to require plan trustees to rely solely on the NLRB for
enforcement of NLRA-based contribution obligations.  Rather, since it
viewed "(t)he civil enforcement scheme of Section 502(a) as one of the
essential tools for accomplishing the stated purposes of ERISA" (Pilot
Life Ins. Co. v. Dedeaux, slip op. at 11-12), Congress must have
presumed that Section 515 would cover these obligations as well.

   4. Although its opinion is not altogether clear on the point
(compare Pet. App. A21-A26 with A26 n.12 and A33-A34), the court below
acknowledged that "the failure to pay may also violate section 515 of
ERISA" (id. at A33).  It found, however, that the language and
legislative history of Section 515 are sufficiently ambiguous to
require that its interpretation be resolved by reference to "accepted
labor law principles," specifically, the principle that the NLRB has
primary jurisdiction to resolve unfair labor practice questions.  See
Pet. App. A31-A32.  We do not think that the question of Congress's
intent under Section 515 can be resolved in this fashion.

   As noted earlier, the NLRA vests the NLRB with primary jurisdiction
over unfair labor practice questions to ensure that the statute is
uniformly and consistently interpreted.  As also noted earlier,
however, Congress has occasionally determined that this concern for
uniformity of decision should yield to other considerations and, in
such situations, has established independent mechanisms for enforcing
particular NLRA-based rights.  See Local 20, Teamsters Union v.
Morton, 377 U.S. at 258-259 & n.13;  Connell Construction Co. v.
Plumbers & Steamfitters Local Union No. 100, 421 U.S. at 626-635.  The
question whether Congress intends any particular NLRA-based right to
be enforceable by an independent mechanism (and thus to create a
particular exception to the general primary jurisdiction rule)
obviously cannot be answered by reference to the general primary
jurisdiction rule itself;  reference to the general primary
jurisdiction rule only begs the question whether Congress intended to
establish an exception to it.  The question whether Congress intended
to establish an exception to the general primary jurisdiction rule,
or, stated differently, to create an additional remedy for the
violation of an NLRA-based right, can be answered only by reference to
the language, legislative history, and purposes of the federal statute
alleged to establish the exception or to create the additional remedy
-- in this instance, Section 515 of ERISA.  Any ambiguity in the
meaning of this statute -- as with the ambiguity in the meaning of any
other statute -- must be resolved on its own terms.  /20/

                              CONCLUSION

   The judgment of the court of appeals should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   LOUIS R. COHEN

      Deputy Solicitor General

   GLEN D. NAGER

      Assistant to the Solicitor General

   GEORGE R. SALEM

      Solicitor of Labor

   ALLEN H. FELDMAN

      Associate Solicitor

   CAROL A. DE DEO

      Deputy Associate Solicitor

   ELLEN L. BEARD

      Attorney Department of Labor

   ROSEMARY M. COLLYER

      General Counsel National Labor Relations Board

   MAY 1987

   /1/ In March and April 1984, petitioners filed separate suits
alleging that respondent had failed to make its books and records
available for audit as required by the collective bargaining
agreements.  These suits were consolidated with this action (Pet. App.
A6-A7).

   /2/ Section 515 of ERISA, 29 U.S.C. 1145, provides that:

   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.

   /3/ Section 4212(a) of ERISA, 29 U.S.C. 1392(a), provides that:

   For purposes of this part, the term "obligation to contribute"
means an obligation to contribute arising --

         (1) under one or more collective bargaining (or related)
      agreements, or

         (2) as a result of a duty under applicable labor-management
      relations law, but

does not include an obligation to pay withdrawal liability under this
section or to pay delinquent contributions.

   /4/ Three other courts of appeals, following the reasoning of the
court below, have reached the same result.  See Moldovan v. Great
Atlantic & Pacific Tea Co., 790 F.2d 894 (3d Cir. 1986);  U.A. 198
Health & Welfare, Education & Pension Funds v. Rester Refrigeration
Service, Inc., 790 F.2d 423 (5th Cir. 1986);  New Bedford Fishermen's
Welfare Fund v. Baltic Enterprises, Inc., No. 85-1537 (1st Cir. Mar.
11, 1987).

   /5/ Petitioners do not appear to contend in this Court that either
the expired collective bargaining agreements or the pension plan
documents require respondent to make such post-contract-expiration
contributions.  Cf. Nolde Brothers, Inc. v. Local No. 358, Bakery &
Confectionery Workers Union, 430 U.S. 243 (1977) (arbitration clause
extends beyond term of collective bargaining agreement);  Pattern
Makers' Pension Trust Fund v. Badger Pattern Works, 615 F. Supp. 792
(N.D. Ill. 1985) (fiduciary may enforce terms of pension plan against
employer even though collective bargaining agreement has expired).

   /6/ Raising the power of the linguistic microscope does not help.
Congress's use of the phrase "under the terms of * * *," rather than
"in accordance with the terms of," might be said to favor the narrower
reading.  On the other hand, the narrower reading makes the words "the
terms of" a mere surplusage.

   /7/ Neither petitioners nor respondent suggests that respondent has
withdrawn from its plans (or incurred any such withdrawal liability).

   /8/ See, e.g., Hearings on S. 2125, 391-394;  ERISA Improvements
Act of 1978:  Joint Hearings on S. 3017 Before the Subcomm. on Labor
of the Senate Comm. on Human Resources and the Subcomm. on Private
Pension Plans and Employee Fringe Benefits of the Senate Comm. on
Finance, 95th Cong., 2d Sess. 123 (1978);  Multiemployer Pension Plan
Amendments Act of 1979:  Hearings on S. 1076 Before the Senate Comm.
on Labor and Human Resources, 96th Cong., 1st Sess. 523 (1979)
(hereinafter Senate Hearings on S. 1076);  Multiemployer Pension Plan
Termination Insurance Program:  Hearing Before the Subcomm. on
Oversight of the House Comm. on Ways and Means, 96th Cong., 1st Sess.
121-122 (1979);  The Multiemployer Pension Plan Amendments Act of
1979:  Hearings on H.R. 3904 Before the Task Force on Welfare and
Pension Plans of the Subcomm. on Labor-Management Relations of the
House Comm. on Education and Labor, 96th Cong., 1st Sess. 772, 808
(1979) (hereinafter House Hearings on H.R. 3904);  The Multiemployer
Pension Plan Amendments Act of 1979:  Hearing on H.R. 3904 Before the
House Comm. on Ways and Means, 96th Cong., 2d Sess. 193 (1980).

   /9/ The Staff of the Senate Committee on Labor and Human Resources
explained (Comm. Print 43-44) that:

         Delinquencies of employers in making required contributions
      are a serious problem for most multiemployer plans.  Failure of
      employers to make promised contributions in a timely fashion
      imposes a variety of costs on plans.  While contributions remain
      unpaid, the plan loses the benefit of investment income that
      could have been earned if the past due amounts had been received
      and invested on time.  Moreover, additional administrative costs
      are incurred in detecting and collecting delinquencies.
      Attorneys' fees and other legal costs arise in connection with
      collection efforts.

         These costs detract from the ability of plans to formulate or
      meet funding standards and adversely affect the financial health
      of plans.  Participants and beneficiaries of plans as well as
      employers who honor their obligation to contribute in a timely
      fashion bear the heavy cost of delinquencies in the form of
      lower benefits and higher contribution rates.  Moreover, in the
      context of this legislation, uncollected delinquencies can add
      to the unfunded liability of the plan and thereby increase the
      potential withdrawal liability for all employers.

   For additional discussion of the problems that delinquencies cause
multiemployer plans, see Note, Denying The Illegality Defense:  An
Enigmatic Approach To The Delinquent Pension Fund Contribution
Problem, 34 Stan. L. Rev. 221, 223-228 (1981).

   /10/ The Staff of the Senate Committee on Labor and Human Resources
explained that "(s)ome simple collection actions brought by plan
trustees have been converted into lengthy, costly and complex
litigation concerning claims and defenses unrelated to the employer's
promise and the plans' entitlement to the contributions" (Comm. Print
44).

   /11/ The legislative history of the two provisions neither confirms
nor refutes the point.  The withdrawal liability provisions were
introduced simultaneously in both houses of Congress on May 3, 1979.
See H.R. 3904, 96th Cong., 1st Sess. (1979), reprinted in House
Hearings on H.R. 3904, at 3;  S. 1076, 96th Cong., 1st Sess. (1979),
reprinted in Senate Hearings on S. 1076, at 3.  Neither bill contained
a provision concerning delinquent employer contributions.  See S.
1076, 96th Cong., 1st Sess (1979);  H.R. 3904, supra.  The provision
for delinquent contributions was added later by floor leaders in both
houses.  126 Cong. Rec. 23039 (1980);  id. at 23288.  The legislative
history does not directly discuss the connection between the
delinquent contribution and withdrawal liability provisions, except to
state that they should be enforced in the same manner.  See House
Hearings on H.R. 3904, at 808;  126 Cong. Rec. 23039 (1980);  id. at
23288-23289.

   /12/ Congress clearly intended trustees, arbitrators, and courts to
make impasse determinations when necessary to assess and collect
withdrawal liability, despite a potential inroad on the traditional
primary jurisdiction of the NLRB.  No greater inroad will result if
such determinations are made by trustees and courts in actions under
Section 515.

   /13/ The statute provides that a "complete withdrawal" occurs only
when an employer "permanently ceases to have an obligation to
contribute under the plan" (29 U.S.C. 1383(a)(1)).  An employer
cannot, however, prevent a complete withdrawal from occurring by
becoming delinquent in paying contributions to the plan;  Section
4212(a) provides that, for purposes of determining withdrawal
liability, the term "obligation to contribute" "does not include an
obligation to pay withdrawal liability under this section or to pay
delinquent contributions" (29 U.S.C. 1392(a)).

   /14/ The parties' continuing but unsuccessful attempts to negotiate
an agreement may constitute a "labor dispute" and, if so, the
suspension of contributions by the employer would not give rise to
withdrawal liability.  See 29 U.S.C. 1398(2);  T.I.M.E.-DC, Inc. v.
New York State Teamsters Conference Pension & Retirement Fund, 580 F.
Supp. 621 (N.D.N.Y.), aff'd, 735 F.2d 60 (2d Cir. 1984).  Though the
plan trustees may seek retroactive withdrawal liability once the
employer is finally found to have withdrawn from the plan (PBGC Op.
Letter 86-4 (Feb. 28, 1986)), they would not be able to do so if the
parties ultimately resolved their labor dispute and, in doing so,
provided that the employer shall continue to participate in the plan.
Whether continued participation in the plan includes full payment of
delinquent contributions may depend upon either the terms of the plan
itself or the union's ability to secure the employer's agreement to
pay such contributions.  See Southwest Administrators, Inc. v. Rozay's
Transfer, 791 F.2d 769, 771 & n.1 (9th Cir. 1986).  Of course, the
expense involved in paying delinquent contributions may itself be a
factor in the negotiations.

   /15/ 29 U.S.C. 1053(b)(1)(G) states that "all of an employee's
years of service with the employer or employers maintaining the plan
shall be taken into account." See also 29 U.S.C. 1052(b)(1),
1054(b)(3)(A);  29 C.F.R. 2530.210(c)(2).  The Department of Labor has
interpreted this provision as requiring that credit "be given solely
on the basis of service performed for (a participating employer),
regardless whether that employer is required to contribute for such
service or has made or defaulted on his required contributions." Dep't
of Labor Advisory Op. 76-89 (Aug. 31, 1976), reprinted in Pens. Rep.
(BNA) No. 221, at R-25 (Jan. 8, 1979).  See also Dep't of Labor
Advisory Op. 78-28A (Dec. 5, 1978), reprinted in Pens. Rep. (BNA) No.
221, at R24-R25 (Jan. 8, 1979).  Similarly, the Internal Revenue
Service has stated that a "multiemployer plan must credit all years of
service of employees as long as the employer is obligated to
contribute to the plan on behalf of such service." IRS Gen. Couns.
Mem. 39,048 (Nov. 2, 1983), reprinted in 10 Pens. Rep. (BNA) 1764,
1765 (1983).

   /16/ Under the duty of loyalty, a plan fiduciary "shall discharge
his duties with respect to a plan solely in the interest of the
participants and beneficiaries and * * * for the exclusive purpose of
* * * providing benefits to participants and their beneficiaries;  and
* * * defraying reasonable expenses of administering the plan" (29
U.S.C. 1104(a)(1)(A)).  Under the duty of care, a fiduciary "shall
discharge his duties with respect to a plan * * * with the care,
skill, prudence, and diligence under the circumstances then prevailing
that a prudent man acting in a like capacity and familiar with such
matters would use in the conduct of an enterprise of a like character
and with like aims" (29 U.S.C. 1104(a)(1)(B)).

   /17/ 29 U.S.C. 1106(a)(1)(B) states that "(a) fiduciary with
respect to a plan shall not cause the plan to engage in a transaction,
if he knows or should know that such transaction constitutes a direct
or indirect * * * lending of money or other extension of credit
between the plan and a party in interest." The Secretary of Labor has
long interpreted this provision to require trustees to "establish and
implement collection procedures which are reasonable, diligent, and
systematic" (Prohibited Transaction Exemption 76-1, 41 Fed. Reg.
12740, 12741 (1976)).  This Court has cited that interpretation with
approval.  See Central States, Southeast & Southwest Areas Pension
Fund v. Central Transport, Inc., 472 U.S. 559, 567 n.7 (1985).

   /18/ The union's interest in obtaining a favorable contract may
outweigh its interest in insuring that all delinquent contributions
are paid.  The union may therefore be unwilling to initiate
proceedings before the NLRB, to assist the trustees in doing so, or to
pressure the employer to fulfill its obligations to employee benefit
plans.  See generally NLRB v. Amax Coal Co., 453 U.S. 322, 334-338
(1981);  Chemical & Alkali Workers v. Pittsburgh Plate Glass Co., 404
U.S. 157, 171-175 (1971);  Central States Southeast & Southwest Areas
Pension Fund v. Kraftco, Inc., 799 F.2d 1098, 1100-1102 (6th Cir.
1986), cert. denied, No. 86-881 (Feb. 23, 1987).  Accordingly, this
Court has repeatedly rejected arguments that trustees can or should
rely on unions to collect delinquent pension fund contributions.  See
Central States, Southeast & Southwest Areas Pension Fund v. Central
Transport, Inc., 472 U.S. at 575-577;  Schneider Moving & Storage Co.
v. Robbins, 466 U.S. 364, 373-376 (1984).

   /19/ In 1986, the NLRB settled 91.7% of all "meritorious" unfair
labor practice cases.  See NLRB General Counsel's Report Summarizing
Operations In Fiscal 1986, Daily Labor Rep. (BNA) D-2 (Feb. 27, 1987).
 Such settlements do not necessarily result in full recovery of
delinquent contributions by plans.  See Mo-Kan Teamsters Pension Fund
v. Botsford Ready Mix Co., 605 F. Supp. 1441 (W.D. Mo. 1985).

   /20/ Although we see no obstacle to a court determining, in a case
properly brought under Sections 502 and 515, whether an employer
improperly ceased making contributions to a fund prior to reaching
impasse in negotiations, deference to the NLRB'S judgment of whether
and when impasse occurred is nevertheless preferable where an NLRB
judgment will be forthcoming.  See Charles D. Bonanno Linen Service,
Inc. v. NLRB, 454 U.S. 404, 413 (1982);  see also NLRB v. Blidisco &
Blidisco, 465 U.S. 513, 533-534 (1984).  If the General Counsel has
issued a complaint concerning a bad faith bargaining charge filed by
either the trustees of a plan or a union, a federal court concurrently
considering a Section 515 enforcement action by trustees should
refrain from deciding any "impasse" question and await that issue's
resolution by the NLRB.  See Northern California District Council of
Hod Carriers v. Opinski, 673 F.2d 1074 (9th Cir. 1982);  Carpenters
Local Union No. 1846 v. Pratt-Farnsworth, Inc., 690 F.2d 489, 515 (5th
Cir. 1982), cert. denied, 464 U.S. 932 (1983).  The NLRB decision
should be binding in the trustees' federal court action, provided that
the trustees had an adequate opportunity to litigate the issue in the
NLRB proceedings.  See Moldovan v. Great Atlantic & Pacific Tea Co.,
790 F.2d 894, 899 (3d Cir. 1986);  see generally Carey v. Westinghouse
Corp., 375 U.S. 261, 272 (1964);  United States v. Utah Construction &
Mining Co., 384 U.S. 394, 421-422 (1966).

   Here, the Regional Counsel of the NLRB refused to issue a complaint
with respect to the union's bad faith bargaining charge.  Pet. App. A5
n.1.  Accordingly, the district court had no reason to defer its
resolution of the "impasse" question.