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CENTRAL STATES

October 1, 1996

CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, ROBERT J. BAKER, ARTHUR H. BUNTE, JR., R. JERRY COOK, R. V. PULLIAM, SR., JERRY YOUNGER, JOE ORRIE, RAY CASH, and HOWARD McDOUGALL, trustees, Plaintiffs,
v.
PROGRESSIVE DRIVER SERVICES, INC., Defendant/Third Party Plaintiff, v. REYNOLDS METALS COMPANY, Third Party Defendant.



The opinion of the court was delivered by: NORDBERG

 Plaintiffs have sued Defendant Progressive Driver Services, Inc. ("Progressive") pursuant to the Employee Retirement Income Security Act of 1974 ("ERISA"), as amended by the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA"). 29 U.S.C. § 1001 et seq. (1982). Plaintiffs seek collection of withdrawal liability, interest, and penalties allegedly incurred by Defendant as a result of withdrawal from a multiemployer pension plan. Progressive brought a Third Party Complaint against Reynolds Metals Company for contribution, indemnity, and damages. Progressive alleges that Reynolds was the employer of the plan participants and that pursuant to an oral contract it provided drivers, support, and administrative services for Reynolds' motor carrier and other operations. Progressive further alleges that pursuant to this contract it became a signatory to the relevant collective bargaining agreement that required contributions to the Central States, Southeast and Southwest Areas Pension Fund. Before the Court is Plaintiffs' Motion for Summary Judgment.

 BACKGROUND

 The pertinent undisputed facts are as follows. Plaintiff Central States, Southeast and Southwest Areas Pension Fund ("the Fund") is a multiemployer pension plan within the meaning of ERISA. The Fund determined that on or about April 30, 1994 Progressive permanently ceased to have an obligation to contribute to the Fund and that Progressive effected a "complete withdrawal" from the Fund within the meaning of Section 4203(a)(1) of ERISA, 29 U.S.C. § 1385(a)(1). On or about December 10, 1994, Progressive received a notice and demand issued by the Fund for payment of withdrawal liability in the amount of $ 92,194.80. On or about January 23, 1995, Progressive received a notice from the Fund that its withdrawal liability payments were past due, warning of the consequences of failure to pay such liability. By letter dated February 28, 1995, Progressive requested that the Fund review its determination. On or about April 27, 1995, Progressive received the Fund's response to its review request, in which the Fund refused to revise its withdrawal liability determination. Progressive did not timely initiate arbitration pursuant to Section 4221(a)(1) of ERISA and has failed to make any withdrawal liability payments.

 ANALYSIS

 Summary judgment is appropriate against a party who fails to make a sufficient showing to establish the existence of an essential element to its case on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The moving party bears the initial burden of identifying the portions of the record that it believes demonstrate the absence of a genuine issue of material fact and entitle it to judgment as a matter of law. Id. at 323; Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). The court must view all of the evidence submitted in the light most favorable to the nonmoving party. Adickes, 398 U.S. at 157.

 Once a properly supported motion for summary judgment has been filed, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (quoting First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575 (1968)). An issue of fact is genuine only if a jury could reasonably return a verdict for the nonmoving party. 477 U.S. at 248. Only facts that might affect the outcome of the case are material. Id. Therefore, if the evidence provided by the nonmoving party is merely colorable or is not significantly probative, the court may grant summary judgment. Id. at 249-50.

 The Seventh Circuit has delineated the statutory scheme regarding withdrawal liability. "The Multiemployer Pension Plan Amendments to the Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq., require that when an employer withdraws from a multiemployer pension plan governed by ERISA, the plan assess a withdrawal liability against him, 29 U.S.C. § 1396, so that the financial burden of his employees' vested pension benefits will not be shifted to the other employers in the plan and, ultimately, to the Pension Benefit Guaranty Corporation, which insures such benefits. To trigger application of the statute, the pension plan must issue a notice, and a demand for payment, of withdrawal liability to the employer. § 1399(b). If the employer wants to contest the assessment he must first complain informally to the plan within 90 days. § 1399(b)(2)(A). If he obtains no satisfaction from this mandatory conciliation procedure he must initiate arbitration--the method prescribed by the statute for resolving disputes concerning assessments of withdrawal liability . . . . § 1401(a)(1). Should the employer fail to request arbitration within the deadline the amount of withdrawal liability assessed by the plan becomes due and owing and the plan can (as here) sue to collect it. § 1401(b)." Central States, Southeast & Southwest Areas Pension Fund v. Slotky, 956 F.2d 1369, 1371-72 (7th Cir. 1992). Specifically, Section 1401(a)(1) provides, in pertinent part: "Any dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 1381 through 1399 of this title shall be resolved through arbitration." The Seventh Circuit remarked that "the requirement [that any dispute between the employer and the plan be resolved by arbitration] presupposes a determination that the dispute is with an 'employer.'" Id. at 1372.

 As the undisputed facts show, the sequence of events that entitles a plan to sue and collect the withdrawal liability it has assessed against an employer has occurred here. However, Progressive denies that it is an employer for purposes of the MPPAA and, thus, contends that it is not subject to the arbitration requirement. Plaintiffs now seeks summary judgment, arguing that Progressive's failure to initiate arbitration precludes it from disputing liability. Plaintiffs contend that Slotky so holds. To the contrary, the Slotky court merely opined: "it can be argued that the statutory policy of encouraging the prompt, nonjudicial resolution of disputes over withdrawal liability requires the alleged member of a controlled group to institute arbitration on penalty of losing all opportunity to contest his membership." Id. at 1373. The Seventh Circuit then stated, "But this we need not decide," because the plan did not argue waiver and the issue is not jurisdictional. Id.1

 In explaining that the employer status issue is not within the arbitrator's exclusive jurisdiction, the Seventh Circuit relied upon Banner Industries, Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 875 F.2d 1285 (7th Cir. 1989), cert. denied, 493 U.S. 1003, 107 L. Ed. 2d 558, 110 S. Ct. 563 (1989). In Banner, the court distinguished the issue of "whether one ever became an employer for MPPAA purposes" from "the question of whether one [who concedes to have once been an employer] remains an employer as of a withdrawal date." Id. at 1291, 1293. The latter issue, the court held, is for the arbitrator to decide, as it arises under Section 1392(c) and Section 1401 provides that all disputes concerning determinations under Sections 1381-1399 shall be resolved via arbitration. Id. at 1292-93. In reaching this conclusion, the court emphasized the distinction and remarked: "Courts that have resolved employer status questions before arbitration have confronted entities which, unlike [the putative employer in Banner], never had been employers subject to the MPPAA, and which therefore legitimately challenged application of the MPPAA dispute resolution process to them. " Id. at 1293 (emphasis added).

 The Second, Third, Fourth, Sixth, and Eighth Circuits have held that because Section 1401 only requires arbitration for disputes between an "employer" and a plan, whether a defendant is an employer for purposes of withdrawal liability "is properly for the courts, not an arbitrator, to determine." Bowers v. Transportacion Maritima Mexicana, S.A., 901 F.2d 258, 261 (2d Cir. 1990); see also Rheem Mfg. Co. v. Central States, Southeast & Southwest Areas Pension Fund, 63 F.3d 703 (8th Cir.), cert. denied, 134 L. Ed. 2d 96, 116 S. Ct. 1016 (1995); Board of Trustees of Trucking Employees of North Jersey Welfare Fund, Inc. - Pension Fund v. Centra, 983 F.2d 495, 501 (3d Cir. 1992); Teamsters Joint Council No. 83 v. CenTra, Inc., 947 F.2d 115, 122 (4th Cir. 1991); Korea Shipping Corp. v. New York Shipping Ass'n-Int'l Longshoremen's Ass'n Pension Trust Fund, 880 F.2d 1531, 1536 (2d Cir. 1989); Mason & Dixon Tank Lines, Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 852 F.2d 156, 167 (6th Cir. 1988).

 In light of the Banner dicta this Court follows these Circuits and holds that the issue of whether Progressive was ever an employer is properly before it to decide, because, as the district court found in Banner, "its resolution decides the arbitrator's authority over a dispute." Banner, 875 F.2d at 1291. The Court does not deem the equivocal language of Slotky to require otherwise, namely, "we may assume" and "it can be argued," particularly in light of its reliance upon Banner. 956 F.2d at 1373. Indeed, in Rheem, the Eighth Circuit cited Banner as "stating that the determination of whether an entity ever became an employer under the MPPAA is an issue properly addressed by a district court prior to arbitration of any remaining issues." 63 F.3d at 705. Moreover, the MPPAA does not define "employer," such that a dispute of employer status is not one concerning a determination made under Sections 1381-1399. However, as Slotky illustrates, a putative employer who, like Progressive, sits back and waits to be sued takes its chances; if the court finds that it is an employer it has "waived the issues that are reserved for arbitration." 956 F.2d at 1373. Rather, a putative employer who seeks to dispute that status in court must file a declaratory judgment action within the time for arbitration in order to preserve the arbitration issues. Rheem, 63 F.3d at 705-06; Banner, 875 F.2d at 1293-94; IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc., 788 F.2d 118, 128-29 (3d Cir. 1986).


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