Trustees of the Plumbers & Pipefitters National Pension Fund v. Plumbing Services, Inc.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2403

THE TRUSTEES OF THE PLUMBERS AND PIPEFITTERS NATIONAL

PENSION FUND,

Plaintiff – Appellee,

v.

PLUMBING SERVICES, INC.; PSI MECHANICAL, INC.,

Defendants – Appellants.

Appeal from the United States District Court for the Eastern

District of Virginia, at Alexandria. T. S. Ellis, III, Senior

District Judge. (1:13-cv-00118-TSE-JFA)

Argued: January 27, 2015 Decided: June 29, 2015

Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit

Judge.

Affirmed by published opinion. Judge Diaz wrote the opinion, in

which Judge Motz and Senior Judge Davis joined.

ARGUED: Gregory F. Yaghmai, RUTLEDGE & YAGHMAI, Birmingham,

Alabama, for Appellants. Dinah S. Leventhal, O'DONOGHUE &

O’DONOGHUE LLP, Washington, D.C., for Appellee. ON BRIEF: John

R. Harney, O’DONOGHUE & O’DONOGHUE LLP, Washington, D.C., for

Appellee.

DIAZ, Circuit Judge:

For nearly thirteen years, Plumbing Services, Inc. (“PSI”)

made contributions to the Plumbers and Pipefitters National

Pension Fund (the “Fund”), a multiemployer pension benefit plan

governed by the Employment Retirement Income Security Act of

1974 (“ERISA”), 29 U.S.C. § 1001 et seq. (2012). On March 10,

2011, however, PSI stopped contributing to the Fund. The Fund,

in turn, informed PSI that it (and its successor entity, PSI

Mechanical, Inc., collectively “Defendants”) owed “withdrawal

liability” pursuant to 29 U.S.C. § 1381. When Defendants failed

to pay the sum owed, the Fund filed suit.

Defendants moved to dismiss the action on the ground that

the district court did not have personal jurisdiction over them.

In the alternative, they sought a change in venue. The district

court denied both motions. On the merits, Defendants claimed

that PSI never agreed to be bound by an existing collective

bargaining agreement requiring participating employers to make

contributions to the Fund. The district court disagreed, and

granted the Fund’s motion for summary judgment. Because we find

that (1) the district court had personal and subject matter

jurisdiction, (2) venue was proper in Virginia, and (3) PSI

bound itself to make contributions to the Fund, we affirm.

2

I.

A.

We begin by briefly setting out the relevant statutory

framework. Congress enacted ERISA to promote the “soundness and

stability of [employee benefit] plans” in private industry. 29

U.S.C. § 1001(a). Specifically, ERISA protects “the interests

of employees and their beneficiaries” by establishing “minimum

standards . . . assuring the equitable character of such plans

and their financial soundness.” Id. To further that end,

Congress in 1980 passed the Multiemployer Pension Plan

Amendments Act (the “MPPAA”). In part, the MPPAA

requires that an employer withdrawing from a

multiemployer pension plan pay a fixed and certain

debt to the pension plan. This withdrawal liability

is the employer’s proportionate share of the plan’s

“unfunded vested benefits,” calculated as the

difference between the present value of vested

benefits and the current value of the plan’s assets.

Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717,

725 (1984) (citing 29 U.S.C. §§ 1381, 1391). The purpose of

assessing withdrawal liability is “to assign to the withdrawing

employer a portion of the plan’s unfunded obligations in rough

proportion to that employer’s relative participation in the plan

over the last 5 to 10 years.” Borden, Inc. v. Bakery &

Confectionary Union & Indus. Int’l Pension, 974 F.2d 528, 530

(4th Cir. 1992).

3

An employer owes withdrawal liability when it makes a

complete or partial withdrawal from a pension plan. 29 U.S.C.

§ 1381(a). In the building and construction industry, a

complete withdrawal occurs when: (1) “an employer ceases to have

an obligation to contribute under the plan, and” (2) the

employer “continues to perform work in the jurisdiction of the

collective bargaining agreement of the type for which

contributions were previously required.” 29 U.S.C.

§ 1383(b)(2). ERISA treats all trades or businesses that are

under common control as a single employer. 29 U.S.C. §

1301(b)(1). 1

An employer who disputes an assessment of withdrawal

liability may file an objection with the plan sponsor. 29

U.S.C. § 1399(b)(2)(A). “After a reasonable review of any

matter raised,” the plan sponsor must notify the employer of (1)

its decision, (2) the basis for its decision, and (3) “the

reason for any change in the determination of the employer’s

1The ERISA regulations define common control by reference

to the Treasury regulations prescribed under 26 U.S.C. § 414(c).

29 C.F.R. § 4001.3. According to those regulations, one

instance where two or more businesses are under common control

is where the same five or fewer persons own a controlling

interest in each corporation and, “taking into account the

ownership of each such person only to the extent such ownership

is identical with respect to each such [corporation], such

persons” own more than 50 percent of the total shares of each

corporation. 26 C.F.R. § 1.414(c)-2(c).

4

liability or schedule of liability payments.” Id.

§ 1399(b)(2)(B).

An employer dissatisfied with the plan sponsor’s response

must demand arbitration within a 60-day period after the earlier

of the date of the plan sponsor’s notification that it has

rejected the employer’s request for review, or 120 days after

the employer’s request for review. 29 U.S.C. § 1401(a).

“[U]nlike the Federal Arbitration Act, the MPPAA treats an award

issuing from such a § 1401 arbitration like an agency

determination--the arbitrator decides the issues in the first

instance but then the decision is subject to judicial

review.” Bd. of Trs., Sheet Metal Workers’ Nat’l Pension Fund

v. BES Servs., Inc., 469 F.3d 369, 375 (4th Cir. 2006).

If, however, the employer does not pursue arbitration, the

amount assessed by the plan sponsor as withdrawal liability

“shall be due and owing on the schedule set forth by the plan

sponsor,” which may then “bring an action in a State or Federal

court of competent jurisdiction for collection.” 29 U.S.C.

§ 1401(b)(1). In such a circumstance, an employer is deemed to

have waived review of all issues concerning the determination of

withdrawal liability. BES Servs., 469 F.3d at 375.

B.

The Fund is a multiemployer pension benefit plan maintained

pursuant to a collective bargaining agreement between the

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Associated Plumbing, Heating and Cooling Contractors of

Jefferson County, Alabama (the “Multiemployer Association”) and

affiliated local unions of the United Association of Journeymen

and Apprentices of the Plumbing and Pipefitting Industry of the

United States and Canada (the “Union”). Defendants are Alabama

corporations engaged as plumbing and pipefitting contractors.

On April 8, 1998, Kenneth Julian--PSI’s sole shareholder--

agreed in writing (on behalf of PSI) “to be bound by provisions

of the current labor Agreement executed and presently existing

between” the Multiemployer Association and the Union. J.A. 448. 2

PSI further agreed to “make contributions to the . . . Plumbers

and Pipefitters National Pension Fund . . . . as provided for by

the [labor] Agreements now existing and as hereafter.” Id.

The collective bargaining agreement then in effect, as well

as all successor agreements, required participating employers to

make contributions to the Fund for each hour worked by their

employees. PSI began making contributions to the Fund in 1998,

and continued to do so until March 10, 2011. On that date, PSI

(through Julian) wrote to the Union stating that it wished “to

abolish its working relationship with” the Union. J.A. 139.

Under the terms of the collective bargaining agreement, PSI’s

obligation to contribute to the Fund ended sixty days after

2 We refer to this writing as the “Letter of Assent.”

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tendering the March 10 letter. PSI went out of business

sometime in the summer of 2011. Shortly before then, PSI

Mechanical filed articles of incorporation.

Well over a year after PSI sent the March 10 letter, the

Fund notified Julian that because PSI was “continuing to perform

work of the type for which it was previously obligated to make

contributions to the Fund” in the jurisdiction of the collective

bargaining agreement, PSI had incurred withdrawal liability of

$188,685. J.A. 345. Specifically, the Fund suspected that PSI

and PSI Mechanical were trades or businesses under common

control. In fact, Julian was the sole shareholder of both

corporations.

The Fund gave PSI the option to pay the amount owed in one

lump sum or in monthly installments. PSI objected and sought

review of the imposition of withdrawal liability. The Fund in

turn asked PSI to respond to a questionnaire so as to better

enable the Fund to assess PSI’s objection. PSI, however,

refused to answer any questions related to PSI Mechanical,

stating that it was “not privy to information necessary to

answer” them. J.A. 368.

In the meantime, PSI was still required to make monthly

payments on its withdrawal liability. See 29 U.S.C.

§ 1399(c)(2). Yet, PSI did not comply with its obligation. The

Fund sent two late-payment notices to PSI and received no

7

response to either. The Fund subsequently rejected PSI’s

objection to the imposition of withdrawal liability, declared

PSI in default, and demanded payment of the entire sum of its

withdrawal liability plus accrued interest. Defendants made no

payments, nor did they demand arbitration.

C.

The Fund filed suit in the United States District Court for

the Eastern District of Virginia against both PSI and PSI

Mechanical, seeking to collect PSI’s unpaid monthly withdrawal

liability payments, along with interest, liquidated damages, and

attorney’s fees and costs. 3 It also sought to compel Defendants

to make future monthly payments when due. The Fund later

amended its complaint to ask for the entire outstanding

withdrawal liability. 4

Defendants moved to dismiss the lawsuit for lack of

personal jurisdiction, or alternatively, on forum non conveniens

grounds. They argued that because PSI and PSI Mechanical are

3

ERISA provides that a plan suing to recover withdrawal

liability may also recover interest, liquidated damages, and

attorney’s fees and costs. 29 U.S.C. § 1132(g)(2). Pursuant to

the terms of the Fund’s Plan document, liquidated damages are

equal to “the greater of: (i) the amount of interest charged on

the unpaid balance, or (ii) 20 percent of the unpaid amount

awarded.” J.A. 343.

4

The amended complaint also alleges that the Fund had

reviewed and rejected in writing PSI’s arguments raised in its

request for review and that PSI never demanded arbitration.

8

Alabama corporations engaged in business exclusively in Alabama,

they do not have sufficient minimum contacts with Virginia for

the exercise of personal jurisdiction. In the alternative,

Defendants urged that the lawsuit be dismissed because there is

an adequate alternative forum in the Northern District of

Alabama.

The district court denied the motions. The court found it

“pelucidly [sic] clear that there is personal jurisdiction.”

J.A. 316. It noted that ERISA provides for nationwide service

of process and permits lawsuits to be brought in the district

where the plan is administered. As a result, the court’s

exercise of personal jurisdiction over Defendants comported with

Fifth Amendment due process principles.

The district court construed Defendants’ forum non

conveniens claim as one seeking a change of venue under 28

U.S.C. § 1404(a). It declined to grant relief, however, because

the Eastern District of Virginia was the Plaintiff’s forum of

choice and only moderately inconvenient for Defendants. The

court further observed that witnesses were unlikely to be

needed, and that the interest of justice weighed in favor of

keeping the case in Virginia.

The Fund then moved for summary judgment on the sole count

of its amended complaint, which the district court granted.

Thereafter, the Fund sought liquidated damages, interest, and

9

attorney’s fees and costs. Defendants opposed the request,

claiming that the contract that the Fund was seeking to enforce

was not sufficiently definite. To assess this claim, the

district court reviewed the collective bargaining agreement in

effect when Julian signed the Letter of Assent, as well as a

successor agreement.

The district court held that the collective bargaining

agreement was “neither fatally vague nor unclear; the Agreement

makes clear that a breaching party will be liable for unpaid

contributions upon complete withdrawal, interest on those unpaid

contributions, liquidated damages, and attorney’s fees and

costs.” J.A. 600. The court found immaterial and unpersuasive

Defendants’ allegation that “Julian never read nor understood

the Agreement” because he nevertheless “agreed to be bound” by

it. Id. The court entered judgment in favor of the Fund in the

amount of $247,013.21.

From the district court’s judgment, Defendants appeal.

II.

We first consider the district court’s order denying

Defendants’ motions to dismiss for lack of personal jurisdiction

and to transfer venue. We review the district court’s decision

as to personal jurisdiction de novo, although the underlying

factual findings are reviewed for clear error. Carefirst of

10

Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396

(4th Cir. 2003). We review decisions on whether to transfer

venue under 28 U.S.C. § 1404 for abuse of discretion. Brock v.

Entre Computer Ctrs., Inc., 933 F.2d 1253, 1257 (4th Cir. 1991).

Defendants say that the district court lacked personal

jurisdiction over them because they are Alabama corporations

that do business exclusively in Alabama and have no contacts

with Virginia. The district court correctly rejected this

contention.

As the district court noted, any action brought under ERISA

“may be brought in the district where the plan is administered.”

29 U.S.C. § 1132(e)(2). Furthermore, ERISA provides for

nationwide service of process. Id. The Fund is administered in

Alexandria, Virginia, which is within the Eastern District of

Virginia, and Defendants were properly served. Where a

defendant has been validly served pursuant to a federal

statute’s nationwide service of process provision, a district

court has personal jurisdiction over the defendant so long as

jurisdiction comports with the Fifth Amendment. ESAB Grp., Inc.

v. Centricut, Inc., 126 F.3d 617, 626-27 (4th Cir. 1997).

To make out a Fifth Amendment challenge to personal

jurisdiction, Defendants had to show that “the district court’s

assertion of personal jurisdiction over [them] would result in

‘such extreme inconvenience or unfairness as would outweigh the

11

congressionally articulated policy’ evidenced by a nationwide

service of process provision.” Denny’s, Inc. v. Cake, 364 F.3d

521, 524 n.2 (4th Cir. 2004) (quoting ESAB, 126 F.3d at 627).

Normally, when a defendant is a United States resident, it is

“highly unusual . . . that inconvenience will rise to a level of

constitutional concern.” ESAB, 126 F.3d at 627 (internal

quotation marks omitted).

Defendants have not satisfied this heavy burden. Indeed,

in their brief, Defendants fail to apply the correct rule of

law, citing the “minimum contacts” standard we consider when

assessing whether personal jurisdiction is consistent with the

Due Process Clause of the Fourteenth Amendment. See Int’l Shoe

Co. v. Washington, 326 U.S. 310, 316 (1945); ALS Scan, Inc. v.

Digital Serv. Consultants, Inc., 293 F.3d 707, 711 (4th Cir.

2002). That standard, however, is not relevant when the basis

for jurisdiction is found in a federal statute containing a

nationwide service of process provision. Given Defendants’

failure to show that the district court’s exercise of personal

jurisdiction raises a Fifth Amendment concern, they “must look

primarily to federal venue requirements for protection from

onerous litigation.” ESAB, 126 F.3d at 627 (quoting Hogue v.

Milodon Eng’g, Inc., 736 F.2d 989, 991 (4th Cir. 1984)).

On that score, Defendants contend that because they are

Alabama corporations with no business ties to Virginia, the

12

district court was obligated to transfer this case to the

Northern District of Alabama. 5 We do not agree.

Under 28 U.S.C. § 1404(a), “[f]or the convenience of

parties and witnesses, in the interest of justice, a district

court may transfer any civil action to any other district or

division where it might have been brought or to any district or

division to which all parties have consented.” District courts

within this circuit consider four factors when deciding whether

to transfer venue: (1) the weight accorded to plaintiff’s choice

of venue; (2) witness convenience and access; (3) convenience of

the parties; and (4) the interest of justice. E.g., Lynch v.

Vanderhoef Builders, 237 F. Supp. 2d 615, 617 (D. Md. 2002); Bd.

of Trs., Sheet Metal Workers Nat’l Fund v. Baylor Heating & Air

Conditioning, Inc., 702 F. Supp. 1253, 1255-56 (E.D. Va. 1988)

(citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)).

As a general rule, a plaintiff’s “choice of venue is

entitled to substantial weight in determining whether transfer

is appropriate.” Bd. of Trs. v. Sullivant Ave. Props., LLC, 508

F. Supp. 2d 473, 477 (E.D. Va. 2007). Moreover, Congress

intended in ERISA cases to give a “plaintiff’s choice of forum

somewhat greater weight than would typically be the case,” as

5Like the district court, we will treat Defendants’ motion

to dismiss for forum non conveniens as a request for transfer of

venue under 28 U.S.C. § 1404.

13

evidenced by ERISA’s “liberal venue provision.” Cross v. Fleet

Reserve Ass’n Pension Plan, 383 F. Supp. 2d 852, 856-57 (D. Md.

2005) (internal quotation marks omitted). Given the substantial

weight accorded to this first factor, Defendants need to make a

compelling showing on the remaining factors to persuade us that

the district court abused its discretion by refusing to transfer

venue. This they fail to do.

The salience of the witness convenience and access factor

is obviated by PSI’s failure to demand arbitration. By failing

to arbitrate, PSI waived its right to raise any defenses to the

assessment of withdrawal liability. Thus, the district court

properly concluded that there would be little, if any, need for

witnesses.

As to the third factor, Defendants have not persuaded us

that defending this case in Virginia was so inconvenient to them

as to warrant transfer. On this point, Defendants emphasize

that Alabama is “where all events relative to the litigation

took place.” Appellant’s Br. at 35. However, it is not unusual

for some or all of the relevant acts in an ERISA lawsuit to have

taken place outside the district where the plan is administered.

Congress nonetheless saw fit to lay venue there, and we see no

reason why that legislative intent should yield in this case.

Defendants also make no argument as to why the interest of

justice favors hearing this case in Alabama. Consequently, we

14

hold that the district court did not abuse its discretion in

refusing to transfer venue.

III.

Defendants also urge that the district court lacked subject

matter jurisdiction over the Fund’s claim. Their first

contention--that there was no enforceable contract requiring PSI

to make contributions to the Fund--is a merits argument that we

address later. Here, we consider only Defendants’ claim that

the Fund’s action for withdrawal liability is actually a claim

for postcontract contributions and therefore arises under § 8 of

the National Labor Relations Act, 29 U.S.C. § 158(a), rather

than ERISA. In essence, Defendants argue that the district

court did not have subject matter jurisdiction because the

Fund’s claim involves an unfair labor practice that should have

been brought before the National Labor Relations Board. That is

not correct.

Under ERISA, an employer that is contractually obligated to

make contributions to a retirement fund must do so in accordance

with the operative collective bargaining agreement. 29 U.S.C.

§ 1145. Section 1145 thereby creates a federal right of action

allowing a multiemployer pension plan to collect delinquent

contributions. Bakery & Confectionary Union and Indus. Int’l

15

Pension Fund v. Ralph’s Grocery Co., 118 F.3d 1018, 1020-21 (4th

Cir. 1997).

An action to compel an employer to pay overdue withdrawal

liability is treated the same as an action to collect delinquent

contributions. 29 U.S.C. § 1451(b). And federal district

courts have jurisdiction to hear actions compelling an employer

to pay withdrawal liability. Id. § 1451(c). This being an

action to collect overdue withdrawal liability payments, the

district court plainly had subject matter jurisdiction.

In support of its contention otherwise, Defendants draw our

attention to Laborers Health & Welfare Trust Fund for Northern

California v. Advanced Lightweight Concrete Co., 484 U.S. 539

(1988). There, the Supreme Court held that the right of action

created by § 1145 “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 [National Labor Relations Act].” Id. at 549.

However, an action to collect withdrawal liability is far

different from one seeking to require an employer “to make

postcontract contributions while negotiations for a new contract

are being conducted.” Id. at 548. As we have explained,

§ 1451(b)--in conjunction with § 1145--expressly creates a right

of action to collect overdue withdrawal liability. We therefore

16

reject Defendants’ contention that the district court lacked

subject matter jurisdiction.

IV.

A.

We turn now to the district court’s grant of summary

judgment to the Fund. As a threshold matter, we address

Defendants’ claim that the district court “flouted the well-

known and time-tested summary judgment standard.” Appellant’s

Br. at 46 (quoting Greater Balt. Ctr. for Pregnancy Concerns,

Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 283 (4th

Cir. 2013)). Essentially, Defendants say that the Fund failed

to produce evidence supporting its motion for summary judgment.

Defendants are wrong.

A party moving for summary judgment “always bears the

initial responsibility of informing the district court of the

basis for its motion, and identifying those portions of the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits . . . which it

believes demonstrates the absence of a genuine issue of material

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal quotation marks omitted). In this case, the Fund

supported its motion with an affidavit from the administrator of

the pension fund, correspondence between the Fund and PSI

17

documenting the assessment of withdrawal liability and PSI’s

request for review, PSI’s admissions, and a number of other

documents. We find this evidence more than sufficient to shift

the burden to Defendants to “come forward with specific facts

showing that there is a genuine issue for trial.” Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(internal quotation marks omitted).

Defendants also argue that the district court erred in

granting summary judgment on the basis of the Fund’s original

complaint, rather than the amended version. This error,

however, furnishes no ground for relief. In the first place,

the factual allegations in the two complaints are substantially

similar. Moreover, we review summary judgment orders de novo,

based on our independent review of the entire record. See

Turner v. Dammon, 848 F.2d 440, 444 (4th Cir. 1988), abrogated

on other grounds by Johnson v. Jones, 515 U.S. 304 (1995). The

amended complaint is part of the record, and thus the district

court’s error poses no obstacle to our review of its decision.

B.

It is undisputed that neither PSI nor PSI Mechanical ever

demanded arbitration. While this normally means judicial review

of all issues relating to the imposition of withdrawal liability

is waived, we have recognized a limited exception to ERISA’s

arbitration requirement where a party asserts that it is not an

18

“employer” subject to the arbitration requirement. Teamsters

Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 122 (4th

Cir. 1991); see also Flying Tiger Line v. Teamsters Pension

Trust Fund of Phila., 830 F.2d 1241, 1250 (3d Cir. 1987)

(holding that the issue of whether an organization is an

employer for ERISA purposes is one for the court).

As a result, the sole issue before the district court was

whether PSI is an employer subject to ERISA’s arbitration

requirement. We hold that it is.

ERISA defines an employer as “any person acting directly as

an employer, or indirectly in the interest of an employer, in

relation to an employee benefit plan.” 29 U.S.C. § 1002(5).

Defendants argue that PSI is not an employer because there is no

valid collective bargaining agreement between PSI and the Fund

that bound PSI to make contributions. Specifically, Defendants

say that the Letter of Assent is insufficient to bind PSI to its

promise to contribute to the Fund in accordance with the

referenced collective bargaining agreement and its successor

agreements. As a result, because there is no valid agreement,

PSI was never acting as an employer “in relation to an employee

benefit plan.”

The parties disagree as to what law applies to the

resolution of this issue. Defendants contend that we should

19

consult Alabama law for this purpose, while the Fund says we

should look to federal common law. We agree with the Fund.

We have been clear that “ERISA preempts state law,

including state common law.” Phx. Mut. Life Ins. Co. v. Adams,

30 F.3d 554, 563 (4th Cir. 1994). ERISA preemption is construed

broadly, and displaces any state law that “has a connection with

or reference to” an employee benefit program. Shaw v. Delta Air

Lines, Inc., 463 U.S. 85, 97 (1983). Similarly, in the labor

law context, the Supreme Court has emphasized the importance of

national uniformity when deciding issues involving the

“consensual processes that federal labor law is chiefly designed

to promote--the formation of the collective agreement and the

private settlement of disputes under it.” DelCostello v. Int’l

Bhd. of Teamsters, 462 U.S. 151, 162-63 (1983) (emphasis added).

Consulting state law to determine when a collective

bargaining agreement is formed would undermine uniformity and

“exert a disruptive influence upon . . . the negotiation . . .

of collective agreements.” Int’l Union, United Auto., Aerospace

& Agric. Implement Workers of Am., AFL-CIO v. Hoosier Cardinal

Corp., 383 U.S. 696, 701-02 (1966). Thus, when determining

whether an obligation to contribute to an employee benefit plan

exists, state contract law must give way.

In the Letter of Assent, PSI agreed to be bound by the

collective bargaining agreement in effect between the Union and

20

the Multiemployer Association. It further agreed to contribute

to the Fund as required by the then-existing collective

bargaining agreement and any successors. We have previously

held that an employer can execute a letter of assent allowing “a

multi-employer bargaining association to represent it in § 8(f)

negotiations.[ 6] In such an arrangement, the individual employer

agrees to be bound by the § 8(f) agreement reached between the

multi-employer bargaining association and the union.” Indus.

TurnAround Corp. v. NLRB, 115 F.3d 248, 252 (4th Cir. 1997).

We believe that this principle is equally applicable in the

present context, and thus hold that the Letter of Assent is

sufficient to bind PSI to make contributions to the Fund in

accordance with the terms of the collective bargaining

agreement. Defendants insist, nonetheless, that the Letter of

Assent is invalid because it “leaves open the unbridled

obligation of Defendants to accept future changes to the

contract.” Appellant’s Br. at 39. The gist of their argument

is that even if the Letter of Assent is valid as to the

collective bargaining agreement in effect in 1998 when the

6 Under § 8(f) of the National Labor Relations Act,

“employers or multi-employer associations in the [building and]

construction industry [may] enter into collective-bargaining

agreements, commonly called ‘pre-hire agreements,’ with unions

that have not formally established majority status.” Industrial

TurnAround, 115 F.3d at 252; see also 29 U.S.C. § 158(f).

21

Letter was signed, it does not bind them to successor

agreements. However, in Industrial TurnAround, we approved a

similar letter of assent that bound the employer to successor

contracts. 115 F.3d at 252 (“[Employer] executed . . . a letter

of assent . . . binding [employer] to the then current . . .

agreement and to all successor agreements.”). We see no reason

to depart from that holding here.

Finally, even if the Letter of Assent alone did not bind

PSI to make future contributions to the Fund, its conduct

certainly did. While we have not previously addressed this

issue, today we join several of our sister circuits in holding

that a collective bargaining agreement can be adopted by conduct

manifesting an intention to be bound by its terms. Bricklayers

Local 21 of Ill. Apprenticeship & Training Program v. Banner

Restoration, Inc., 385 F.3d 761, 766 (7th Cir. 2004); Carpenters

Amended & Restated Health Benefit Fund v. Holleman Constr. Co.,

751 F.2d 763, 770 (5th Cir. 1985); Trs. of Atl. Iron Workers,

Local 387 Pension Fund v. S. Stress Wire Corp., 724 F.2d 1458,

1459-60 (11th Cir. 1983).

The most obvious manifestation of PSI’s intent to be bound,

of course, was its decision to sign the Letter of Assent.

However, that it intended to be bound is also made unmistakably

clear by the fact that PSI made contributions to the Fund in

accordance with the governing collective bargaining agreements

22

for thirteen years before its complete withdrawal. The district

court was therefore correct to reject PSI’s belated effort to

avoid withdrawal liability.

The record also shows that shortly after PSI went out of

business, PSI Mechanical was incorporated and began performing

the same work. Because Julian is the sole shareholder of both

corporations, ERISA treats them as a single employer. 29 U.S.C.

§ 1301(b)(1). Consequently, PSI Mechanical’s work in the

jurisdiction of the type for which contributions were previously

required is attributed to PSI. This also means that the Fund

may look to PSI Mechanical to satisfy the withdrawal liability

owed by PSI.

In sum, given the existence of a valid contract requiring

PSI to contribute to the Fund, PSI is an employer under ERISA.

And because PSI failed to timely demand arbitration, all the

Fund had to prove to win summary judgment was that it gave PSI

proper notice of the assessed withdrawal liability. Chi. Truck

Drivers v. El Paso Co., 525 F.3d 591, 597 (7th Cir. 2008). The

record shows that the Fund did this. The district court

therefore correctly granted the Fund’s motion for summary

judgment, and its judgment is

AFFIRMED.

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