Forrest Bugher, et al., Plaintiff-appellee, v. Consolidated X-ray Service Corporation, Defendant-appellant, 711 F.2d 713 (5th Cir. 1983)

No member of this panel nor judge in regular active service on the Court having requested that the Court be polled on rehearing en banc, the Suggestion for Rehearing En Banc is DENIED.

We write today to clarify one aspect of our opinion in this case. This point is not raised in either appellant's Petition for Rehearing or its Suggestion for Rehearing En Banc.

In National Stabilization Agreement v. Commercial Roofing & Sheet Metal, 655 F.2d 1218 (D.C. Cir. 1981), the D.C. Circuit held that an employer may not successfully assert the invalidity of the trustee selection process as a defense to an action for delinquent trust fund contributions. This Court cited that decision approvingly in Central Florida Sheet Metal Contractors Association, Inc. v. NLRB, 664 F.2d 489, 498 (5th Cir. 1981).

In the present case, a collection suit for delinquent contributions, Consolidated contended that the Pension Fund contribution provisions of the collective bargaining agreements were unenforceable because, among other things, the trustee selection and replacement process allowed the Union to control the Fund, in violation of 29 U.S.C. § 186(c) (5). We refused to consider this and other objections to the structure of the Pension Fund on the ground that Consolidated had waived those objections by failing to raise them before the district court, 515 F. Supp. 1180. Our decision on that issue was based entirely upon Consolidated's failure to plead, under F.R.Civ.P. 8(c), the supposed illegality, due to structural defects in the Fund, of the collective bargaining agreements' contribution provisions. We did not consider the issue of whether flaws in the trustee selection and replacement process may in fact serve as a defense to a collection suit for delinquent trust fund contributions.

The Petition for Rehearing is also DENIED.