                    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
