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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
arising in the labor context, the Employee Retirement Income
Security Act of 1974 ("ERISA") established a remedy, enforceable in
the district courts, whereby multiemployer plans may recover
delinquent contributions from employers 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 of

liability to the plan; and third, a finding that it terminated the
CBA. 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 nearly 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
parties entered into a new CBA. Pursuant to the CBA, Miller
regularly contributed certain amounts to the Louisiana Bricklayers
& Trowel Trades Pension Fund and Welfare Fund ("the Funds").
Article XXIII1 of the CBA ("Article XXIII") provided for automatic
renewal from year to year unless either party furnished written
notice of intent to terminate the agreement not later than sixty
days nor more than ninety 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," Bricklayers Local
1
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 commencing 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 expiration date or
anniversary date thereafter.
2

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 notification, 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 to
3

compel payment. Citing sections 5023 and 5154 of ERISA and section
3015 of the Labor Management Relations Act ("LMRA"), the Funds
sought to recover the delinquent contributions and available
interest, penalties, costs, and attorneys' fees. The parties filed
cross-motions for summary judgment regarding 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 Local 4. Third, the court
found that Miller's August 30 letter failed to terminate the CBA.
3
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 practice which violates any
provision of this subchapter or the terms of the plan, or (B) to
obtain other appropriate equitable 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. See
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 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.
29 U.S.C. � 1145.
5
29 U.S.C. � 185. Neither party argues the � 301 claim on appeal.
4

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 delinquent 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. See 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
nonmoving 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).
5

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
action. In so contending, Miller principally relies on Laborers
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 collective 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 ceased
6

contributing, 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 forestall payment constituted an unfair
labor practice under NLRA section 8(a)(5)7. Advanced 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. See id. at
543-44, 108 S. Ct. at 833. As a result, the employer contended
that the NLRB retained exclusive jurisdiction over the post-
contractual 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 refuse to
make postcontract contributions constitutes a violation
of the NLRA.
6
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

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, according to the Court, had to be invoked to
determine non-section 515 liability for the company's alleged post-
contractual 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
the 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 neither factual or theoretical support for
the extension Miller seeks.
8

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." Benson 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 intended 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 the issues: (1) the pension
contributions are illegal,8 (2) the CBA is void ab initio, e.g.,
for fraud in the execution,9 and (3) the employees have voted to
decertify the union as their bargaining representative10. See
Agathos v. Starlite Motel, 977 F.2d 1500, 1505 (3d Cir. 1992)
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

(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 cause 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. See 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 sub judice
merely raise potential defenses to the 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 Miller's contribution
obligation. However, Local 1's status as a valid successor to
Local 4 involves a complex labor law determination. Thus, West
Coast Sheet Metal Co. is factually distinct from Miller's
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 collectively bargained agreement failed to establish legitimate
defense to an action under section 515 as contract merely became voidable).
10

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. See Lowe's Market, Inc., 58
F.3d at 1446 (holding 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, on
12
Although a district court may consider 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. Cf. 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. See 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

the face of the documents, whatever the letter did, it neither
unequivocally indicated an intention to terminate the CBA, nor
could it do so. See OPEIU, 524 F.2d at 1317 ("[N]otice to
terminate must be clear and explicit."). While the August 30
letter 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. See Kaiser Steel, 455 U.S.
at 83, 102 S. Ct. at 859; see also Rozay's Transfer, 791 F.2d at
12

773 ("[C]ongress and the courts have acted to simplify trust fund
collection actions by restricting the availability of contract
defenses . . . ."). Accordingly, this court AFFIRMS the judgment
of the district court.
AFFIRMED.
13