UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30594

LOUISIANA BRICKLAYERS & TROWEL TRADES

PENSION FUND & WELFARE FUND,

Plaintiff-Appellee,

v.

ALFRED MILLER GENERAL MASONRY

CONTRACTING COMPANY,

Defendant-Appellant.

Appeal from the decision of the United States District Court

for the Western District of Louisiana

October 16, 1998

Before GARWOOD, JONES, and WIENER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Although Congress has conferred primary jurisdiction on

the National Labor Relations Board (“NLRB”) for most disputes

ar ising in the labor context, the Employee Retirement Income

Security Act of 1974 (“ERISA”) established a remedy, enforceable in

the district courts, whereby multi employer plans may recover

delinquent contributions from empl o yers obligated to make the

payments under the terms of a collective bargaining agreement

(“CBA”). Faced with such an ERISA claim, the employer here sought,

first, a refuge under the NLRB’s jurisdiction; second, a decision

on successorship in labor law that, it contends, relieves it of1 Article XXIII was improperly labeled Article XIII in the CBA. For

convenience, this court will refer to the provision, as have the parties, by the

proper designation, “Article XXIII.”

2 Article XXIII reads, in pertinent part:

This agreement shall be effective c ommencing July 1, 1994, shall

continue in full force to and including June 30, 1995, and shall be

automatically continued yearly thereafter unless written notice of

decision to negotiate a new [a]greement, in whole or in part[,] is

given in writing by either party to the other not later than (60)

days nor more than (90) days prior to the expirati on date or

anniversary date thereafter.

2 liability to the plan; and third, a finding that it terminated the

C BA. We hold that the first alternative is not supportable on

these facts; the second raises a defense not cognizable in the

ERISA case; and the third argument is meritless.

I. INTRODUCTION

For nearl y forty years, Alfred Miller General Masonry

Contracting Company (“Miller”) and Bricklayers Local 4 (“Local 4”)

have maintained an employer/union relationship. In July 1990, the

p arties entered into a new CBA. Pursuant to the CBA, Miller

regularly contributed certain amounts to the Louisiana Bricklayers

& Trowel Trades Pension F und and Welfare Fund (“the Funds”).

Article XXIII 1 of the CBA (“Article XXIII”) provided for automatic

renewal from year to year u nless either party furnished written

notice of intent to terminate the agreement not later than sixty

days nor more than ni nety days prior to the July 1 anniversary

date. 2

In July 1994, Local 4 was among 28 locals in three states

that were merged into a consolidated “local,” Brickla yers Local3

Union Number 1 (“Local 1”), by the International Executive Board of

the International Union of Bricklayers and Allied Craftsmen. The

newly-designated president/secretary-treasurer of Local 1 informed

Miller of the merger by memorandum dated July 18, 1994.

On August 30, 1994, Miller wrote to the president of

Local 1 contesting the local’s representation rights. Miller

refused to recognize Local 1 as a successor union to Local 4.

However, Miller did state,

[F]or the immediate future we will continue to make

monthly contributions to our local benefit funds on

behalf of those employees covered by the Local 4

collective bargaining agreement. If there is a change in

our position, we will notify you in another letter.

In September 1994, without further notifi cation, Miller stopped

contributing to the Funds.

II. THE DISPUTE

When Miller ceased making fund contributions, the Funds

brought suit in the Western District of Louisiana in order to3 29 U.S.C. § 1132. Section 502(a)(3) provides,

A civil action may be brought . . . by a participant, beneficiary,

or fiduciary (A) to enjoin any act or pr actice which violates any

provision of this subchapter or the terms of the plan, or (B) to

obtain other appropriate equit able relief (i) to redress such

violations or (ii) to enforce any provisions of this subchapter or

the terms of the plan . . . .

29 U.S.C. § 1132(a)(3). As fiduciaries, the trustees of a multiemployer benefit

plan may maintain a cause of action under section 502(a)(3) of ERISA. S ee

Laborers Health and Welfare Trust Fund v. Advanced Lightweight Concrete Co.

, 484

U.S. 539, 547, 108 S. Ct. 830, 835 (1988); see also 29 U.S.C. § 1002(21)(A).

4 29 U.S.C. § 1145. ERISA section 515 states,

Every employer who is obligated to m ake contributions to a

multiemployer plan under the terms of the plan or under the terms of

a collectively bargained agreement shall, to the ex tent not

inconsistent with law, make such contributions in accordance with

the terms and conditions of such plan or such agreement.

29 U.S.C. § 1145.

5 29 U.S.C. § 185. Neither party argues the § 301 claim on appeal.

4 compel payment. Citing sections 502 3 and 515 4 of ERISA and section

3 01 5 of the Labor Management Relations Act (“LMRA”), the Funds

sought to r ecover the delinquent contributions and available

interest, penalties, costs, and attorneys’ fees. The parties filed

cross-motions for summary judgment rega rding the claims, and the

magistrate judge granted summary judgment in favor of the Funds.

In his memorandum ruling, the magistrate judge addressed

three issues. First, the court determined that a district court

could properly exercise jurisdiction over the claims –– rejecting

Miller’s argument that the NLRB is the exclusive forum for

resolution of the disputed labor law issues. Second, the court

ruled that Local 1 is a successor to Loca l 4. Third, the court

found that Miller’s August 30 letter failed to terminate the CBA.5 When Miller moved for reconsideration, the magistrate

judge revised his earlier ruling, retreating from the finding that

Local 1 was a successor union to Local 4. In so doing, the court

noted, “[W]hether Local 1 was a successor to Local 4 . . . is

immaterial to the proper disposition of this matter.” Instead, the

court focused on the limited defenses to an action under ERISA

section 515 and concluded that the dissolution of Local 4 was not

a defense to the underlying action. Based on these rulings, the

court entered judgment for the Funds for delinq uent payments

covering the period of September 1994 to November 1996. Miller has

appealed.

III. DISCUSSION

A. Standard of Review

When a district court grants summary judgment, this court

reviews the determination de novo

, employing the same standards as

the district court. S ee Urbano v. Continental Airlines, Inc.

, 138

F.3d 204, 205 (5th Cir. 1998). Summary judgment is appropriate

when, viewing the evidence in the light most favorable to the

n onmoving party, the record reflects that no genuine issue of

material fact exists, and the moving party is entitled to judgment

as a matter of law. See Celotex Corp. v. Catrett

, 477 U.S. 317,

322-24, 106 S. Ct. 2548, 2552-53 (1986); see also Fed. R. Civ. P.

56(c).6

B. Jurisdiction, Defenses, and ERISA section 515

Generally, the NLRB retains primary jurisdiction to

address disputes arguably subject to sections 7 or 8 of the

National Labor Relations Act (“NLRA”). See Kaiser Steel Corp. v.

Mullins

, 455 U.S. 72, 83, 102 S. Ct. 851, 859 (1982). As was

previously noted, however, ERISA was amended to facilitate the

collection of past-due pension and welfare fund contributions from

employers in federal courts.

Notwithstanding the Funds’ proper invocation of federal

court jurisdiction, Miller asserts that the labor law defenses it

raises should have been heard first under the auspices of the NLRA

and that the federal court should have dismissed pending an NLRB

a ction. In so contending, Miller principally relies on L abor ers

Health & Welfare Trust Fund for Northern California v. Advanced

Lightweight Concrete Co.

, 484 U.S. 539, 108 S. Ct. 830 (1988).

Advanced Lightweight is, however, distinct, as it involved

negotiations following the lapse of a co llective bargaining

agreement. See 484 U.S. at 542, 108 S. Ct. at 832. A discussion

of the Advanced Lightweight facts and holding is enlightening.

Advanced Lightweight was required to contribute to

several employee benefit plans under the terms of a collective

bargaining agreement. See id. , 108 S. Ct. at 832. Following the

lapse of the agreement, the employer discontinued contributions to

the plans. See id. , 108 S. Ct. at 832. When the employer ceased6 Although the plans had alleged jurisdiction under LMRA section 301

in the original complaint, this basis of jurisdiction was abandoned on appeal.

Advanced Lightweight , 484 U.S. at 543 n.4, 108 S. Ct. at 832 n.4.

7 29 U.S.C. § 158(a)(5).

7 contribut ing, the plans filed suit in federal court. Grounding

jurisdiction on ERISA sections 502 and 515, 6 the plans argued that

the fund payments were due and owing because the employer’s

unilateral decision to fore stall payment constituted an unfair

labor practice under NLRA section 8(a)(5) 7

. A dvanced Lightweight

,

484 U.S. at 542-43, 108 S. Ct . at 832. Advanced Lightweight

maintained that section 515 of ERISA did not govern the

“delinquent” contributions because the duty to make these payments

would only arise under the good-faith bargaining provisions of the

NLRA, not the expired collective bargaining agreement. S ee id. at

543-44, 108 S. Ct. at 833. As a result, the employer contended

that the NLRB retained exclusive jurisdiction over the postcontractual contributions dispute. See id. at 544, 108 S. Ct. at

833.

The Supreme Court ruled that the remedy provided by

section 515 of ERISA did not extend to post-contract delinquencies.

See id. at 547-49, 108 S. Ct. at 835-36. The Court held,

[B]oth the text and the legislative history of §§ 515 and

502(g)(2) provide firm support for the . . . conclusion

that [the remedy provided by these sections] is limited

to the collection of “promised contributions” and does

not confer jurisdiction on district courts to determine

whether an employer’s unilateral decision to ref use to

make postcontract contributions constitutes a violation

of the NLRA.8

Id. at 548-49, 108 S. Ct. at 835-36 (footnotes omitted).

In Advanced Lightweight

, the termination date of the CBA,

and thus the last date on which contractually-based fund payments

were due under section 515, was a given fact. The NLRB’s

jurisdiction, accor ding to the Court, had to be invoked to

determine non-section 515 liability for the company’s alleged postcontractual unfair labor practice.

This case is different. First, the funds are not relying

on an unfair labor practice, i.e., a claim under NLRA section

8(a)(5), as the basis for their claim. Second, Miller argues that

“the Funds seek contributions during a time at which there was no

union party to a collective bargaining agreement with the

employer.” To reach that conclusion, which would determine that

t he CBA ended in 1994, we would have to infer the answer to the

labor law issue that no valid union successorship occurred. No

such issue regarding the termination date of the CBA was presented

to or ruled on by the Court in Advanced Lightweight , however, and

it is an issue within the unique expertise of the NLRB. In this

sense, Miller asks the federal court to usurp the NLRB’s function

in the labor arena, contrary to Advanced Lightweight , by deciding

if and when a facially valid CBA becomes unenforceable. In light

of the limited defenses to a claim under section 515, Advanced

Lightweight furnishes neith er factual or theoretical support for

the extension Miller seeks.8 See Kaiser Steel , 455 U.S. at 86-88, 102 S. Ct. at 861-62.

9 See Southwest Administrators, Inc. v. Rozay’s Transfer

, 791 F.2d 769,

773-74 (9th Cir. 1986) (discussing distinctions between fraudulent execution and

fraudulent inducement as defenses to claim under section 515).

10 See Sheet Metal Workers' Int’l Ass’n, Local 206 v. West Coast Sheet

Metal Co. , 954 F.2d 1506, 1509-10 (9th Cir. 1992).

9 Miller’s non-jurisdictional arguments assert defenses to

the Funds’ lawsuit based on lack of proper successorship and a

purported termination of the CBA. Under the facts presented here,

these defenses are not cognizable in a section 515 action. Section

515 of ERISA was designed to “permit trustees of plans to recover

delinquent contributions efficaciously, and without regard to

issues which might arise under labor-management relations law --

other than 29 U.S.C. [§] 186.” B enson v. Brower’s Moving &

Storage, Inc.

, 907 F.2d 310, 314 (2d Cir. 1990) (quoting 126 Cong.

Rec. 23039 (1980) (remarks of Rep. Thompson)). The Funds are not

identical to the unions; Congress i ntended to protect the Funds’

financial stability by limiting the scope of issues litigable when

they seek to recover employers’ contributions.

In keeping with this intent, only three defenses to a

delinquency action have been recognized by all of the circuit

courts that have considered t he issues: (1) the pension

contributions are illegal, 8 (2) the CBA is void a b initio

, e.g.,

for fraud in the execution, 9 and (3) the employees have voted to

decer tify the union as their bargaining representative 10

. S ee

Agathos v. Starlite Motel

, 977 F.2d 1500, 1505 (3d Cir. 1992)11 See MacKillop v. Lowe’s Market, Inc.

, 58 F.3d 1441, 1444-45 (9th Cir.

1995) (an employer’s unilateral decision to cease contributing to pension funds

in light of questions regarding representation status of union failed to

constitute defense under section 515); Carpenter’s Health and Welfare Trust Fund

v. Bla-Delco Constr., Inc.

, 8 F.3d 1365, 1369 (9th Cir. 1993) (employer’s attempt

to terminate collectivel y bargained agreement failed to establish legitimate

defense to an action under section 515 as contract merely became voidable).

10 (discussing potential defenses to section 515 action); cf. Advanced

Lightweight

, 484 U.S. at 547-49, 108 S. Ct. at 835-36 (finding

fund’s caus e of action under section 515 dissolves following

termination of CBA). Thus, the court decisions distinguish between

actions which invalidate the underlying CBA and conduct, including

unilateral action by the employer, 11 which raises potential defenses

to the enforceability of a facially valid CBA. S ee Bla-Delco

, 907

F.2d at 314 (“[O]nce an employer knowingly signs an agreement that

requires him to contribute to an employee benefit plan, he may not

escape his obligation by raising defenses that call into question

the union’s ability to enforce the contract as a whole .”) (emphasis

added).

The defenses asserted by Miller in the case s ub judice

merely raise potential defenses to th e enforceability of the

underlying CBA. Miller asserts neither fraud in the execution of

the CBA nor illegality in any of its contributions to the Funds.

Instead, lack of successorship is raised as an affirmative defense

to the facial continuation of the CBA and Mille r’s contribution

obligation. However, Local 1’s status as a valid successor to

Local 4 involves a complex labor law determination. Thus, W est

Coast Sheet Metal Co. is factually distinct from Miller’s12 Although a district court may consi der the significance of a

purported termination, the court’s examination must end following a superficial

inquiry into the termination’s effect. Thus, a court may determine whether an

attempted termination was timely or not. C f. Bla-Delco Constr.

, 8 F.3d at 1369.

Further, a court may review an alleged termination to determine if the requisite

intent has been conveyed. Cf. OPEIU, Local 42 v. UAW, Westside Local 174 , 524

F.2d 1316, 1317 (6th Cir. 1975). However, if the issue of termination cannot be

resolved through cursory review, the defense to a section 515 action will not

succeed. S ee Bla-Delco Constr.

, 8 F.3d at 1369 (“The dispute centers on whether

Bla-Delco effectively terminated the CBA. Consequently, the CBA was not ‘void,’

but merely ‘voidable’ . . . .”)

11 successorship argument. When employees vote to decertify a union,

no material, factual labor law issue arises regarding the

enforcement of the previous CBA. See West Coast Sheet Metal Co.

,

954 F.2d at 1509 (“The trust fund provisions have no legal effect

when the Union is no longer the certified representative of West

Coast's employees.”) On the other hand, when a union claims

arguable successor rights, the proper methods for adjudication of

this labor law question are either arbitration under the CBA or

timely litigation before the NLRB. S ee Lowe’s Market, Inc.

, 58

F.3d at 1446 (hold ing employer’s contribution obligations under

section 515 continue until questions regarding continuing validity

of CBA are resolved by arbitration or NLRB); Brower’s Moving and

Storage

, 907 F.2d at 316 (“[A] district court may

. . . stay its

proceedings pending an NLRB determination with respect to the

collective bargaining agreement . . . .”).

Also unhelpful to Miller is the question of termination

pursuant to the employer’s August 30 letter. 12 At best the letter

suggests a defense to enforcement of the CBA. But we can go

further than this in agreeing with the magistrate judge that, on12

the face of the documents, whatever the letter did, it neither

u nequivocally indicated an intention to terminate the CBA, nor

could it do so. S ee OPEIU

, 524 F.2d at 1317 (“[N]otice to

terminate must be clear and explicit.”). While the August 30

l etter rejected any successorship claims of Local 1, Miller

equivocated by agreeing to abide by the terms of the CBA “for the

immediate future.” The letter clearly presupposes future action

prior to the complete rejection of the CBA. Moreover, Miller’s

“termination” letter to Local 4 was also untimely based on the

express language of Article XXIII. See Article XXIII, supra note

2 (requiring written notification between April 2 and May 2 in

order to avoid renewal of the CBA).

IV. CONCLUSION

The magistrate judge correctly concluded that the Funds

were entitled to recover the contributions Miller failed to make

from September 1994 to November 1996, when the CBA terminated by

its own terms. Section 515 of ERISA severely limits the defenses

available to an employer that has failed to timely contribute to a

multiemployer plan. Although Miller established that the CBA was

potentially unenforceable, it appears that remedies were available

to Miller under the CBA or with the NLRB -- not in the district

court. In actions under section 515, a federal court lacks

jurisdiction to consider such defenses. S ee Kaiser Steel

, 455 U.S.

at 83, 102 S. Ct. at 859; s ee also Rozay’s Transfer

, 791 F.2d at13

773 (“[C]ongress and the courts have acted to simplify trust fund

c ollection actions by restricting the availability of contract

defenses . . . .”). Accordingly, this court AFFIRMS the judgment

of the district court.

AFFIRMED.