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?

Area of Law: Employee Law
Keywords: Trust fund contribution; Collective bargaining agreement; Contract termination defense
Jurisdiction: Federal
Cited Cases: 53 F.3d 979; 199 F.3d 1109; 791 F.2d 769; 15 F.3d 1089; 954 F.2d 1506; 58 F.3d 1441; 8 F.3d 1365
Cited Statutes: ERISA § 515; 29 U.S.C. § 1145; Section 301 of the LMRA
Date: 04/01/2001

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 (9th 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 (9th 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 (9th 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 (9th 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 […]

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