1. 1 NECA LABOR RELATIONS CONFERENCE SAN ANTONIO, TX OCTOBER 12-14, 2009 Presented by: Paul Heylman Dan Brandenburg Saul Ewing LLP LEGAL UPDATE

2. 2 Can disability benefits vest? Price v. Board of Trustees of the Indiana Laborer's Pension Fund, 2009 WL 799639 (S.D. Ohio). A union held liable to indemnify the employer for its withdrawal liability. Pittsburgh Mack Truck Sales & Service Inc. v. Int'l Union of Operating Engineers, Local Union No. 66, --- F.3d ---, 2009 WL 2836422 (C.A.3 (Pa.)).

3. 3 Fund can expel two employers for violating the fund's “adverse selection” rule by replacing employees with independent contractors. Borntrager v. Central States, Southeast and Southwest Areas Pension Fund, 577 F.3d 913 (8th Cir. 2009).

4. 4 Arbitrator prevents multiemployer pension plans from electing to freeze their funding status for 2009 at their 2008 levels. Employer Appointed Trustees of the Rocky Mountain UFCW and Employers Pension Plan and the Denver Area Meat Cutters and Employers Pension Plan v. Union Appointed Trustees of the Rocky Mountain UFCW and Employers Pension Plan and the Denver Area Meat Cutters and Employers Pension Plan, FMCS Case No. 09-03051, Jaffe 2009.

5. 5 Employer must continue to pay those contributions until the date when the underlying collective bargaining agreement is set to expire even if union agrees to suspension of contribution. Central States, Southeast and Southwest Areas Pension Fund v. Fingerle Lumber Co., 2009 WL 1137793 (N.D. Ill. 2009). Do the ERISA anti-discrimination rules make it illegal to refuse to hire off duty smokers? Rodrigues v. EG Systems, Inc., --- F. Supp.2d ---, 2009 WL 2245653 (D. Mass. 2009).

6. 6 The U.S. Department of Labor’s proposed rulemaking on civil penalties against multi- employer plan sponsors for failures relating to mandatory funding improvement and rehabilitation plans. 74 Fed. Reg. 45791 Comments are due no later than November 3, 2009.

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