Legal Memorandum: Duty to Contribute to Employee Trust Funds

Issue: Can a defendant defend against part or all of its duty to make trust fund contributions by establishing that its relationship with a union was terminable under 8(f) of the LMRA?

Multi-employer collective bargaining agreements typically include clauses that incorporate by reference separate agreements requiring the employer to contribute to pension and other trust funds.  While a collective bargaining agreement (CBA) must provide the underlying basis for a duty to contribute to employee trust funds, Southwest Administrators, Inc. v. Rozay’s Transfer, 791 F.2d 769 (9^th Cir. 1986), only a limited set of defenses based on the validity and continuing existence of the underlying CBA may be raised in an ERISA § 515 (29 U.S.C. § 1145) trust fund collection action under Ninth Circuit precedent.  According to MacKillop v. Lowe’s Market, Inc., 58 F.3d 1441 (9^th Cir. 1995), the employer must show either (1) that the underlying collective bargaining agreement was not merely voidable, but rather void ab initio (either through fraud in the execution or by virtue of the single-employee unit rule) (Laborers Health & Welfare Trust Fund v. Westlake Dev. Co., 53 F.3d 979 (9^th Cir. 1995) (single-employee unit rule)); or (2) that the collective bargaining agreement subsequently ceased to exist by virtue of a union decertification election, after which the obligation to contribute would have ended.  MacKillop, 58 F.3d at 1445 (citing Sheet Metal Workers’ Int’l Ass’n v. West Coast Sheet Metal Co., 954 F.2d 1506 (9^th Cir. 1992) (holding that employer’s obligation to make future contributions to employee benefit plans, as provided in a CBA, ceases when the collective bargaining agreement ceases to exist due to […]