Transpersonnel Inc v. Roadway Express Inc ( 2005 )


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  •                              In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 04-2321
    TRANSPERSONNEL, INC.,
    Plaintiff-Appellee,
    v.
    ROADWAY EXPRESS, INC.,
    a Delaware Corporation,
    Defendant-Appellant.
    ____________
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 03 C 611—Amy J. St. Eve, Judge.
    ____________
    ARGUED NOVEMBER 29, 2004—DECIDED AUGUST 29, 2005
    ____________
    Before KANNE, EVANS, and SYKES, Circuit Judges.
    SYKES, Circuit Judge. This is an action for declaratory
    judgment pursuant to 
    28 U.S.C. § 2201
     by Transpersonnel,
    Inc., an employer of truck drivers, against Roadway Ex-
    press, Inc., a motor carrier that leased drivers from
    Transpersonnel. The two-count complaint sought judicial
    declarations that: (1) Roadway was an “employer” of the
    leased drivers for purposes of potential withdrawal liability
    under a multiemployer pension plan governed by the
    Employee Retirement Income Security Act (“ERISA”),
    pursuant to the Multiemployer Pension Plan Amendments
    Act of 1980 (“MPPAA”), 
    29 U.S.C. §§ 1381
    , et seq.; and (2)
    Roadway was required to indemnify Transpersonnel for
    2                                              No. 04-2321
    potential future liability Transpersonnel may incur pursu-
    ant to the MPPAA. The district court granted summary
    judgment in favor of Transpersonnel with respect to the
    first question and declined to decide the second because it
    was either premature or moot. We reverse.
    I. Background
    Transpersonnel employs truck drivers and Roadway is
    a motor carrier. In 1986 the parties entered into a writ-
    ten agreement under which Roadway would lease drivers
    employed by Transpersonnel for use in Roadway’s trucking
    operation. At the time the lease was executed, Trans-
    personnel, in its capacity as the employer of the leased
    drivers, was party to a collective bargaining agreement
    (“CBA”) with the Teamsters Local Union No. 705. Under the
    terms of the CBA, Transpersonnel was obligated to make
    contributions to the Union’s pension fund on behalf of the
    employees. Roadway was not a party to the CBA and had no
    contractual relationship with Teamsters Local 705. The
    lease agreement between Transpersonnel and Roadway
    addressed the obligation to contribute to the pension fund
    as follows:
    [Transpersonnel] will have sole control and responsibil-
    ity for and will be sole signatory under and connected
    with all labor negotiations, grievances, collective
    bargaining agreements and related items concerning
    drivers furnished to [Roadway] under this Agreement.
    ....
    [Transpersonnel] will pay the drivers’ wages and
    provide any of the benefits required by any applicable
    bargaining agreement between [Transpersonnel] and
    any authorized representative of any collective bargain-
    ing unit which may be in effect . . . .
    No. 04-2321                                                  3
    ....
    [Roadway] agrees to reimburse [Transpersonnel], at
    cost, for all applicable employee benefits, including . . .
    pension fund contributions, and other similar items
    paid to or on behalf of [Transpersonnel’s] employees
    as a result of a union agreement obligation . . . .
    In 1992 Roadway terminated the lease agreement, and
    the parties apparently went their separate ways. At some
    point after the lease agreement was terminated, Trans-
    personnel ceased making contributions to the pension fund,
    although the record does not disclose the reason for the
    discontinuation or precisely when payments stopped. Ten
    years after the lease agreement was terminated, the
    pension fund issued a demand on Transpersonnel for
    partial withdrawal liability in the amount of $441,846.96,
    pursuant to the MPPAA, 
    29 U.S.C. §§ 1381
    , 1382. With-
    drawal liability is the amount owed a pension plan by
    an employer which reduces or ceases its plan contribu-
    tions prior to fully funding the liabilities of the plan
    attributable to the employer. 
    29 U.S.C. §§ 1383
    , 1385. The
    pension fund has made no claim against Roadway and has
    never suggested that Roadway bears any withdrawal
    liability under the MPPAA. Transpersonnel has denied
    liability to the pension fund and requested arbitration
    of the pension fund’s demand pursuant to 
    29 U.S.C. § 1401
    (a)(1). Arbitration has not yet taken place, and the
    issues of whether Transpersonnel has incurred withdrawal
    liability and, if so, the amount of that liability, have yet
    to be determined.
    Pending arbitration, Transpersonnel filed a two-count
    complaint seeking declaratory judgments that Roadway was
    an “employer” of the personnel at issue for purposes of
    potential withdrawal liability under the MPPAA and that
    Roadway was contractually obligated to reimburse
    Transpersonnel for any withdrawal liability that may
    4                                                    No. 04-2321
    possibly be assessed by an arbitrator at a later date.1
    The parties filed cross-motions for summary judgment,
    and the district court granted Transpersonnel’s motion with
    respect to its claim in Count I that Roadway was
    an employer of the leased drivers for purposes of the
    MPPAA. The district court held that Transpersonnel and
    Roadway were “joint employers” for purposes of withdrawal
    liability under the MPPAA by virtue of Roadway’s obliga-
    tion under the lease agreement to reimburse
    Transpersonnel for contributions required of Transper-
    sonnel under its CBAs with the Teamsters.
    With respect to Count II of the complaint, the district
    court held that the claim was premature and would not
    ripen until an arbitrator had determined whether a with-
    drawal for purposes of the MPPAA had occurred and the
    amount, if any, of Transpersonnel’s withdrawal liability.
    The court also held that even if the issue were ripe for
    adjudication, it need not address the merits because its
    conclusion that Roadway was an MPPAA “employer” had
    provided Transpersonnel all the relief it was seek-
    ing—namely, a declaration effectively compelling Roadway
    1
    Although 
    29 U.S.C. § 1401
    (a)(1) specifies that “[a]ny dispute
    between an employer and the plan sponsor of a multiemployer
    plan . . . shall be resolved through arbitration,” the threshold
    question of whether a company is an “employer” may be submitted
    to a court prior to arbitration. See Banner Indus. v. Cent. States
    Pension Fund, 
    875 F.2d 1285
    , 1293 (7th Cir.), cert. denied, 
    493 U.S. 1003
     (1989); see also Rheem Mfg. Co. v. Cent. States SE & SW
    Areas Pension Fund, 
    63 F.3d 703
    , 705-06 (8th Cir. 1995); Bd. of
    Tr. of Trucking Employees of North Jersey Welfare Fund,
    Inc.–Pension Fund v. Centra, 
    983 F.2d 495
    , 501 (3rd Cir. 1992);
    Mason & Dixon Tank Lines, Inc. v. Cent. States Pension Fund, 
    852 F.2d 156
    , 167 (6th Cir. 1988). “Since only an ‘employer’ is required
    to arbitrate, the district court may address this threshold question
    before arbitration.” Mason & Dixon Tank Lines, 
    852 F.2d at 167
    .
    No. 04-2321                                                     5
    to participate in the arbitration. Accordingly, the district
    court held in the alternative that Count II was moot.2
    II. Discussion
    We review the district court’s award of summary judg-
    ment de novo. Hildebrandt v. Ill. Dep’t of Natural Res., 
    347 F.3d 1014
    , 1024 (7th Cir. 2003). The issue presented is
    whether Roadway’s relationship with the leased drivers, the
    obligations of which were defined by its written lease
    agreement with Transpersonnel, brings Roadway within the
    ambit of an “employer” as that term is used in the MPPAA.
    As mentioned briefly above, the MPPAA imposes liability on
    an employer withdrawing from a multiemployer pension
    plan in order to ensure that the withdrawing employer does
    not leave a plan with vested pension obligations that are
    only partially funded. Cent. States, SE & SW Areas Pension
    Fund v. Bomar Nat’l, Inc., 
    253 F.3d 1011
    , 1014 (7th Cir.
    2001). The concept of withdrawal liability attempts to avoid
    a situation in which the financial burden of funding vested
    pension benefits is shifted onto other employers participat-
    ing in the multiemployer plan and, ultimately, to the
    Pension Benefit Guaranty Corporation. 
    Id.
     The pertinent
    portion of the MPPAA provides: “If an employer withdraws
    from a multiemployer plan in a complete withdrawal or a
    partial withdrawal, then the employer is liable to the plan
    in the amount determined under this part to be the with-
    drawal liability.” 
    29 U.S.C. § 1381
    (a).
    The MPPAA itself does not define the word “employer,”
    but this court has done so, adopting a definition consistent
    with that used in other circuits. In Central States, SE & SW
    Areas Pension Fund v. Central Transport, Inc. (“Central
    Transport”), we held that an “employer” under the MPPAA
    2
    The parties have not raised the dismissal of Count II on appeal,
    and therefore we do not address it further.
    6                                               No. 04-2321
    is “a person who is obligated to contribute to a plan either
    as a direct employer or in the interest of an employer of the
    plan’s participants.” 
    85 F.3d 1282
    , 1287 (7th Cir. 1996)
    (emphasis added) (quoting Seaway Port Authority v.
    Duluth-Superior ILA Marine Ass’n Restated Pension Plan,
    
    920 F.2d 503
    , 507 (8th Cir. 1990), cert. denied, 
    501 U.S. 1218
     (1991)). See also Carriers Container Council, Inc. v.
    Mobile Steamship Ass’n-Int’l Longshoremen’s Ass’n, AFL-
    CIO Pension Plan & Trust, 
    896 F.2d 1330
    , 1343 (11th Cir.),
    cert. denied, 
    498 U.S. 926
     (1990); Korea Shipping Corp. v.
    N.Y. Shipping Ass’n-Int’l Longshoremen’s Ass’n Pension
    Trust Fund, 
    880 F.2d 1531
    , 1537 (2nd Cir. 1989).
    We emphasized in Central Transport that “[t]he appropri-
    ate inquiry is whether the alleged employer had an obliga-
    tion to contribute [to the pension fund] as well as the
    nature of that obligation.” 
    85 F.3d at 1287
    . The “obligation
    to contribute” is created by contract: “[T]he nature of the
    obligation to contribute [is] contractual, and therefore
    the party ‘who is signatory to a contract creating the
    obligation to contribute is the employer for purposes of
    establishing withdrawal liability.’ ” 
    Id.
     (quoting Rheem Mfg.
    Co. v. Cent. States, SE & SW Areas Pension Fund, 
    63 F.3d 703
    , 707 (8th Cir. 1995)).
    The import of the decision in Central Transport is
    clear—an “employer” for purposes of MPPAA liability is
    an entity that has assumed a contractual obligation to make
    contributions to a pension fund. In explaining this conclu-
    sion, the Central Transport panel drew heavily on the
    Eighth Circuit’s decision in Rheem, a case involving a fact
    pattern very similar to that presented here. In Rheem, the
    plaintiff leased fifteen truck drivers from a lessor that was
    signatory to a CBA, establishing the lessor’s obligation to
    contribute to a pension fund on behalf of the leased drivers.
    When the lessor withdrew from the pension fund, the fund
    asserted that the plaintiff lessee, by virtue of its lease
    agreement, was a “joint employer” for purposes of liability
    No. 04-2321                                                 7
    under the MPPAA. The Eighth Circuit rejected the pension
    fund’s position, holding that it was the lessor, and not the
    plaintiff lessee, that “was contractually bound to make
    pension contributions,” and that it was the lessor, not the
    lessee, that had “signed the collective bargaining agreement
    creating the obligation to contribute to [the pension fund].”
    Rheem, 
    63 F.3d at 707
    . The Eighth Circuit concluded that
    the pension fund’s attempt to impose liability on the lessee
    failed because there was “no document that could create a
    contractual obligation for Rheem to contribute to [the
    fund].” 
    Id.
    Transpersonnel contends that Central Transport and
    Rheem are distinguishable because here there is a provision
    in the lease agreement requiring Roadway as lessee to
    reimburse the lessor/employer Transpersonnnel for the
    latter’s contributions to the drivers’ pension fund. The
    district court relied upon Roadway’s reimbursement
    obligation to conclude that Roadway was a “joint employer”
    for purposes of the MPPAA.
    In our view, however, Roadway’s reimbursement obliga-
    tion does not take this case outside the core holdings of
    Central Transport and Rheem. Stated differently, the
    obligation to reimburse for contributions made by another
    is not the equivalent of an obligation to contribute in the
    first instance, and this distinction is important for purposes
    of Central Transport’s definition of “employer” under the
    MPPAA.
    It is undisputed in this case that Roadway had no agree-
    ment whatsoever with the Union and no contractual
    obligation to make contributions to the pension fund. In
    its lease agreement with Transpersonnel, Roadway agreed
    to reimburse Transpersonnel for whatever pension plan
    contributions Transpersonnel made for the employees in
    question pursuant to its own contractual obligation to
    the Union. More specifically, the lease agreement states
    that Roadway “agrees to reimburse Lessor, at cost, for
    8                                                   No. 04-2321
    all . . . pension fund contributions . . . paid . . . on behalf of
    Lessor’s employees as a result of a union agreement obliga-
    tion.” By its terms, this obligation of reimbursement does
    not arise until after a contribution has been made, and
    extends only to amounts actually contributed. If
    Transpersonnel made pension fund contributions that
    were too small, or omitted contributions, the pension
    fund could not look to Roadway for the balance as Roadway
    was only contractually obligated to reimburse Trans-
    personnel for the actual amounts Transpersonnel contrib-
    uted. Roadway would have no obligation to make up the
    difference because it was not contractually obligated to
    contribute to the pension fund in the first place. Central
    States, 
    85 F.3d at 1287
    .
    Moreover, under the terms of the lease agreement,
    Transpersonnel retained sole responsibility for calculat-
    ing the amounts it owed to the pension fund pursuant to its
    CBA with the Union, and Transpersonnel was required to
    make those payments with its own funds.3 After the
    calculations were made and payments contributed,
    Transpersonnel could turn to Roadway for reimbursement
    of amounts actually paid, but the lease agreement did not
    permit Transpersonnel to bill Roadway for amounts owed
    to the fund that had not previously been paid by
    Transpersonnel pursuant to its contractual obligation to
    contribute. There is nothing in the parties’ contract that
    would have permitted Roadway to dispute the amounts paid
    into the fund by Transpersonnel, to make its own calcula-
    tion of the amount owed, to request a refund of erroneously
    large payments, to have any input into the terms of the
    CBA, or, most importantly, to make any payments directly
    3
    The lease agreement provides that “Lessor will have sole control
    and responsibility for . . . collective bargaining agreements and
    related items concerning drivers furnished to Lessee under this
    Agreement.”
    No. 04-2321                                                    9
    to the pension fund at all.
    Accordingly, we find no merit to Transpersonnel’s sugges-
    tion that it was “merely a conduit” through which pension
    plan payments passed from Roadway to the fund.4 The
    terms of the lease agreement establish that Transpersonnel
    was the sole entity “contractually bound to make pension
    contributions” for purposes of “employer” status under the
    MPPAA. Rheem, 
    63 F.3d at 707
    . Simply put, nothing in the
    reimbursement provision of the lease agreement imposes a
    contractual obligation upon Roadway to make contributions
    to the pension fund.
    The district court cited Central Transport but did not
    apply it, concluding that the case did not answer the
    question of whether “more than one entity may qualify as
    an ‘employer’ under the MPPAA.” But the definition of
    “employer” adopted in Central Transport is one of general
    application and does not turn on whether only one—or more
    than one—putative MPPAA “employer” is asserted. Indeed,
    Rheem—cited at length and with approval in Central
    Transport—specifically addressed whether more than one
    entity may qualify as an employer under the MPPAA.
    As we have noted, at issue in Rheem was whether the
    lessor and lessee of truck drivers could be considered “joint
    4
    This case is distinguishable from Korea Shipping Corp. v.
    NYSA-ILA Pension Trust Fund, 
    880 F.2d 1531
    , 1539 (2nd Cir.
    1989), which involved cargo shippers that were contractually
    obligated to make pension fund contributions but whose con-
    tributions were processed through the New York Shipping
    Association (“NYSA”) for “immediate transmittal” to the New
    York Shipping Association–International Longshoremen’s
    Association Pension Fund. The Second Circuit held that under
    these circumstances the NYSA was merely a “conduit” for the
    shipper’s contractually required pension contributions. 
    Id.
     Here,
    Transpersonnel had the sole and complete contribution obliga-
    tion and can hardly be characterized as a mere “conduit.”
    10                                                       No. 04-2321
    employers” for purposes of MPPAA withdrawal liabil-
    ity—exactly the same question presented here. See Rheem,
    
    63 F.3d at 705
    . In Central Transport, this court was
    faced with the question of whether to disregard the cor-
    porate form of the contractual obligor as a means to ascer-
    tain the “true employer” and avoid a potentially fraudulent
    a r r a n g e m e nt i nv o l v i n g i n s o l v e n t , a l t e r e g o
    shell corporations. Central Transport, 
    85 F.3d at 1287
    .
    We characterized the possibility of fraud as constituting
    an exception to the general rule established in Rheem,
    and held that in the absence of fraud allegations, an en-
    tity not contractually obligated to make contributions to
    a pension fund would not be considered an “employer”
    for purposes of withdrawal liability under the MPPAA. 
    Id.
    In Rheem there was no occasion to “look behind the contrac-
    tual obligor” because there were no allegations that the
    relationship between the lessor and lessee was a “sham” or
    a “potentially fraudulent arrangement.” Rheem, 
    63 F.3d at
    707 n.5. The same is true here.
    The district court found support for its conclusion that
    Roadway was an MPPAA “employer” in the holdings of
    three district court cases, each of which predate our de-
    cision in Central Transport and the Eighth Circuit’s
    decision in Rheem. To the extent that these cases apply
    a definition of an MPPAA “employer” that differs from
    that adopted by this court in Central Transport, they
    are inconsistent with currently applicable circuit prece-
    dent and, in any event, are not controlling here.5
    5
    The cases cited by the district court were Am. Stevedoring Corp.
    v. Burlington Indus., Inc., No. 85 C 4180, 
    1985 WL 5057
     (N.D. Ill.
    Dec. 19, 1985); Cent. Pa. Teamster’s Pension Fund v. Serv. Group,
    Inc., 
    645 F. Supp. 996
     (E.D. Pa. 1985); and Schaffer v. Eagle
    Indus., Inc., 
    726 F. Supp. 113
     (E.D. Pa. 1989).
    (continued...)
    No. 04-2321                                               11
    Accordingly, for the foregoing reasons, the judgment of
    the district court is REVERSED and the case is REMANDED for
    further proceedings consistent with this opinion.
    A true Copy:
    Teste:
    ________________________________
    Clerk of the United States Court of
    Appeals for the Seventh Circuit
    5
    (...continued)
    USCA-02-C-0072—8-29-05