Central States, Southeast and, et al v. Bulk Transport, Inc.
Filing
Filed opinion of the court by Judge Posner. AFFIRMED IN PART, REVERSED IN PART, and REMANDED. Richard A. Posner, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Michael S. Kanne, Circuit Judge. [6746745-1] [6746745] [15-3346, 15-3208]
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 15‐3346, 15‐3208
CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS
PENSION FUND and ARTHUR H. BUNTE, JR., Trustee,
Plaintiffs‐Appellees / Cross‐Appellants,
v.
BULK TRANSPORT CORP.,
Defendant‐Appellant / Cross‐Appellee.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 13 C 9112 — Thomas M. Durkin, Judge.
____________________
ARGUED APRIL 1, 2016 — DECIDED APRIL 29, 2016
____________________
Before POSNER, EASTERBROOK, and KANNE, Circuit Judges.
POSNER, Circuit Judge. The Multiemployer Pension Plan
Amendments Act of 1980 amends ERISA by imposing liabil‐
ity on employers who withdraw, partially or completely,
from participation in an underfunded multiemployer pen‐
sion fund, thus reducing the fund’s resources for providing
the pension money to which employees of the fund’s mem‐
bers are contractually entitled. See 29 U.S.C. §§ 1381 et seq.
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Central States, Southeast and Southwest Areas Pension Fund
is such a fund, and Bulk Transport Corp. is a member of the
Fund and has made contributions to the pension account of
Terry Loniewski, one of its employees. Bulk had certified
that Loniewski was entitled by a collective bargaining
agreement between Bulk and a Teamsters local to participate
in the Central States Pension Fund even though the agree‐
ment was limited by its terms to the drivers that Bulk em‐
ployed and Loniewski was a mechanic—he had never been a
driver in the more than 40 years that he had worked for the
company. Although for decades Bulk had treated Loniewski
as though he were covered under the company’s collective
bargaining agreements, it now denies that he was covered
and has demanded that Central States refund the $49,000
that Bulk had contributed to Loniewski’s pension account
between 2002 and 2012. (The rules of the Central States Pen‐
sion Fund limit refunds to money contributed to the Fund
during the ten years preceding the refund request.)
The Fund denied the request and filed this suit, in which
it seeks a declaratory judgment that Bulk is not entitled to
the refund. Bulk counterclaimed, arguing that it is entitled to
the refund, because it contributed to Loniewski’s account by
mistake. The district judge rejected Bulk’s claim. He could
not believe that Bulk had employed Loniewski for more than
40 years as a mechanic, contributing to the Central States
Pension Fund on his behalf, without knowing he’d never
been a driver. In a 2003 settlement agreement between Bulk
and the Fund, Bulk had agreed to continue making contribu‐
tions on Loniewski’s behalf as long as he “continue[d] to be
covered by any collective bargaining agreement” between
Bulk and the Teamsters local. The word “continued” implies
recognition by Bulk that Loniewski was already covered—
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but more than that, it implies a commitment to continue con‐
tributing to the Fund on Loniewski’s behalf until such time
as Bulk and the Teamsters adopted a collective bargaining
agreement that excluded him—which didn’t happen. On the
contrary, collective bargaining agreements made in 2004 and
2009 stated that “in accordance with” the 2003 settlement
agreement Bulk agreed to contribute to the Central States
Fund specified amounts for named employees—and one of
the named employees was Loniewski.
Bulk tells us that no one wants to take away Loniewski’s
pension entitlement—and that in fact it’s committed to pay‐
ing the pension if the Fund refuses to do so, though Bulk
hasn’t reduced this “commitment” to writing and of course
wants Central States to fund his pension instead of Bulk. But
if Loniewski has been mistakenly covered by the collective
bargaining agreements between Bulk and the Teamsters lo‐
cal all these years and hence by Central States, which funds
the pension commitments made in those agreements, the
fault is Bulk’s, not Central States’, which didn’t know, or
have a duty to inquire into, whether Loniewski was or was
not a driver. Bulk being at fault, the district court correctly
refused to order a refund—and for the further reason that
the collective bargaining agreements to which Bulk was a
party, and the 2003 settlement agreement that we men‐
tioned, were explicit that Loniewski was covered by the
agreements, and the parties’ conduct was consistent with
that understanding.
That doesn’t end the case, however, for there is also a
question of what rules govern the arbitration proceedings to
determine Bulk’s withdrawal liability. As we noted, the Mul‐
tiemployer Pension Plan Amendments Act of 1980 imposes
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liability on employers who withdraw, partially or complete‐
ly, from an underfunded multiemployer pension fund. The
Central States Fund assessed Bulk with withdrawal liability
of $740,000 for the years 2010 through 2012, and Bulk con‐
tends that the amount is excessive. The issue of Bulk’s obli‐
gation to contribute to Loniewski’s pension account bears on
(though it is distinct from) the issue of withdrawal liability
because if Bulk was never obligated to make those contribu‐
tions, it follows that it withdrew from the Fund completely
in 2009, when the last member of the Teamsters local other
than Loniewski retired, rather than in 2012, as the Fund con‐
tends. The consequence should Bulk prevail would be to re‐
duce its withdrawal liability from $739,700 to $473,300.
The Multiemployer Pension Plan Amendments Act re‐
quires an employer who wants to dispute its withdrawal lia‐
bility to initiate arbitration with the multiemployer pension
fund, 29 U.S.C. § 1401(a)(1), and Bulk did this. (To arbitrate it
had first to deposit with the Central States Fund the amount
in dispute, 29 U.S.C. § 1399(c)(2); it did that as well.) The
parties disagree however about the rules governing the arbi‐
tration. Bulk’s counterclaim asked the district judge to bar
the Fund from enforcing its own rules, which require arbi‐
tration by and conforming to the procedures of the Ameri‐
can Arbitration Association. The judge agreed (in an opinion
separate from his opinion rejecting Bulk’s refund claim);
Central States, cross‐appealing, challenges that ruling.
The Pension Benefit Guaranty Corporation, acronym
PBGC, is a federal agency that regulates pension plans and
guarantees benefit payments, and all arbitrations of disputes
over liability of employers for withdrawing from pension
funds must be “conducted in accordance with fair and equi‐
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table procedures … promulgated by” that agency. 29 U.S.C.
§ 1401(a)(2). The procedures (referred to as the “default
rules” of arbitration) are set forth in 29 C.F.R. §§ 4221.1–13.
But the agency can authorize the use of other procedures to
govern arbitration, see § 4221.14, and it has approved, and
the agreement between Central States and its members re‐
quires the use of, the American Arbitration Association’s
Multi‐employer Pension Plan Arbitration Rules for With‐
drawal Liability Disputes. Those rules require parties want‐
ing arbitration by the AAA to pay fees to the association for
administering its arbitration rules, in addition to the fees the
parties pay the arbitrator. No such administrative fees are
required by the PBGC’s rules.
The latest AAA rules to be approved by the PBGC (the
1986 rules) would have required Bulk to pay only a $650 fee
to initiate AAA arbitration. But in 2013 the association
upped the fees and if the new fees are applicable Bulk will
have to pay not $650 but $6100, consisting of an initial filing
fee of $4350 and a final fee of $1750 when the first hearing by
the arbitrators is scheduled. The new rules have yet to be
approved by the PBGC, however; approval requires the
agency to find that the rules are “substantially fair to all par‐
ties.” 29 C.F.R. §§ 4221.14(a), (d). So the agency not having
yet approved the new rules, the judge ruled that the old
rules govern and Bulk will have to pay just the $650 fee.
Bulk tendered $650 to the AAA, which responded that the
fee didn’t comply with the new fee schedule, which the as‐
sociation was discussing with the PBGC. In fact the AAA has
asked the agency to approve the new fee schedule—which is
all that’s new in the new rules—but the agency has yet to act
on the request.
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Unfortunately there is ambiguity concerning whether the
agency’s approval of the fee change is required. Section 7 of
the AAA’s Multi‐employer Pension Plan Arbitration Rules
for Withdrawal Liability Disputes (the 1986 rules), requires
payment to the AAA by the party initiating an arbitration,
and by the answering party as well if that party asks for
money in its answer, of “the appropriate administrative fee
as provided in the [AAA’s] Administrative Fee Schedule.” A
separate (unnumbered) section in the rules document, cap‐
tioned “Administrative Fees,” provides that “the AAA shall
prescribe an Administrative Fee Schedule … [and] the
schedule in effect at the time of filing … shall be applicable.”
Another section of the document is captioned “Administra‐
tive Fee Schedule” and states that the fee is based on the
“amount in dispute” and specifies three fees, for three dif‐
ferent amounts in dispute. The lowest fee, and it would be
the one applicable in this case on the basis of the amount in
dispute, is $650.
The PBGC had approved the rules in 1986. See Arbitra‐
tion of Disputes in Multiemployer Plans; PBGC‐Approved
Arbitration Procedure, 51 Fed. Reg. 22585 (June 20, 1986).
Although the approval hasn’t been rescinded, the statement
in the rules that the fee “schedule in effect at the time of fil‐
ing” of the request for arbitration should govern implies that
the fee can be changed at any time without agency approval.
If so, Bulk will have to pay the fees adopted by the AAA in
2013. Since the fee schedules are components of the PBGC
arbitration rules, the agency could force the AAA to cut the
fees that it adopted in 2013, see 29 C.F.R. § 4221.14(d), but it
hasn’t done so.
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The agency has yet to approve the new rules, containing
the new fee schedule, and if its approval is not required for
the new schedule to go into effect, why has the AAA re‐
quested the agency to approve the new rules and why has
the agency agreed to consider the AAA’s request—going so
far as to publish a notice seeking comments on it, see Pen‐
dency of Request for Approval of Alternative Arbitration
Procedure; American Arbitration Association, 81 Fed. Reg.
15578, 15579 (March 23, 2016)—when the only change made
by the 2013 rules is the change in the fee schedule. (The
“Pendency of Request” statement that we just cited
acknowledges that “other than significant changes to the
Administrative Fee Schedule, the 2013 MPPAR [Multi‐
employer Pension Plan Arbitration Rules for Withdrawal
Liability Disputes] are identical to the 1986 MPPAR that
PBGC previously approved.”)
But although the AAA’s 2013 fee increase was its first fee
increase in 27 years, we have no information about when the
next increase (or decrease) is likely, or the next after that,
and so on. If the increases become frequent, having to get the
PBGC’s permission for every one of them could slow down
the arbitration process. It is more efficient to place the bur‐
den not on the AAA to obtain the PBGC’s permission for
every fee change, but on an aggrieved party to arbitration to
complain that the fee increase is unwarranted. And for this
reason, answering the question left open in Central States,
Southeast & Southwest Areas Pension Fund v. Allega Concrete
Corp., 772 F.3d 499, 501 (7th Cir. 2014), we hold that the
PBGC’s approval of a new fee schedule is not required for
the new fees to be charged. We add that the agency’s delay
in responding to the AAA’s request for approval may reflect
a judgment that, since only the fee schedule is changed by
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the new rules and the old rules appear to have allowed fee
changes without separate approval, the agency has no rea‐
son to act quickly on the request.
We note that Congress ordered the agency to promul‐
gate arbitration procedures, 29 U.S.C. § 1401(a)(2), and that
the agency’s own regulations require it to approve “alterna‐
tive arbitration procedure[s]” that satisfy the standard of
substantial fairness to all parties, 29 C.F.R. §§ 4221.14(a), (d),
and an agency’s interpretation of its own regulations is enti‐
tled to a measure of judicial deference. Thomas Jefferson Uni‐
versity v. Shalala, 512 U.S. 504, 512 (1994). It’s true that in ap‐
proving the 1986 rules the agency had said that “the revised
rules will continue to satisfy the criteria for approval … .
This approval is effective June 20, 1986 and will remain effec‐
tive until revoked by the PBGC through a Federal Register notice.”
Arbitration of Disputes in Multiemployer Plans; PBGC‐
Approved Arbitration Procedure, supra, 51 Fed. Reg. at
22585 (emphasis added); see also Arbitration of Disputes in
Multiemployer Plans; PBGC‐Approved Arbitration Proce‐
dure, 50 Fed. Reg. 38046‐03 (Sept. 19, 1985) (similar language
approving the 1981 AAA rules). But the agency did not say
that every fee change must be approved before it can be put
into effect.
Fearful that the AAA, which is not a party to this litiga‐
tion, would continue to refuse to arbitrate until the agency
decided whether to approve the new rules, and not knowing
when the agency would act, the district judge ordered the
parties to arbitrate their dispute under the PBGC’s default
rules of arbitration. He said that a “finding that Bulk
Transport has properly initiated arbitration is cold comfort if
the AAA refuses to accept its $650 payment and the Pension
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Fund insists that the parties utilize the AAA. The Court un‐
derstands from the parties’ representations that the AAA has
not completely ruled out the possibility that it will accept the
$650 payment. But the Court is unwilling to delay the matter
any further pending open‐ended discussions between two
parties (the AAA and the PBGC) that are not before the
Court. Thus, the Court directs the parties to arbitrate their
dispute pursuant to the PBGC’s default rules.” Those rules,
cited earlier in this opinion, are elaborate, consisting of 13
subsections some of which have their own subsections. We
have been given no reason to think them inferior to the AAA
rules. And because they don’t impose a fee for initiating ar‐
bitration, they don’t trip over the fee‐increase issue. Remit‐
ting the parties to those rules would therefore permit the ar‐
bitration to proceed without anyone’s having to wait for the
PBGC to decide whether to approve the AAA’s new (2013)
fee schedule. But if our earlier analysis is correct, the AAA is
not required to await the agency’s approval of the 2013
rules; it can go ahead and charge Bulk $6100 to initiate its
arbitration against Central States.
Now $6100 is a significant multiple of $650. But to Bulk it
must be chicken feed. Bulk is a substantial trucking and
truck‐rental company, owning at last count 87 trucks and
tractors and other heavy equipment. See Bulk Transport
Corp., www.quicktransportsolutions.com/truckingcompany/
indiana/bulk‐transport‐corp‐usdot‐125525.php; www.manta.
com/c/mmcszfc/bulk‐transport‐corp; www.bulkequip.com/f
aqs.html (all three websites visited April 27, 2016). Its fierce
opposition to having to pay a $6100 fee for arbitration by the
AAA, preferring arbitration under the PBGC’s default rules
(with their zero fee), is more likely to reflect a belief that
those rules are more favorable to it than a belief that the ex‐
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tra expense of initiating AAA arbitration under the 2013
rules instead of the 1986 rules will jeopardize the company’s
solvency.
We therefore affirm the district judge’s ruling on the re‐
fund issue but reverse and remand with respect to the appli‐
cable arbitration rules.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
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