830 F.2d 1241 (3rd Cir. 1987), 86-5817, Flying Tiger Line v. Teamsters Pension Trust Fund of Philadelphia

Docket Nº:86-5817, 86-5931, 87-3063.
Citation:830 F.2d 1241
Party Name:The FLYING TIGER LINE, a Delaware Corporation, Tiger International, Inc., a Delaware Corporation, Warren Transport, Inc., an Iowa Corporation, Plaintiffs & Counterdefendants, v. TEAMSTERS PENSION TRUST FUND OF PHILADELPHIA and vicinity, a/k/a Teamsters Pension Plan of Philadelphia and Vicinity, and Charles J. Schaffer, Jr., Counterplaintiffs, v. CE
Case Date:September 30, 1987
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 1241

830 F.2d 1241 (3rd Cir. 1987)

The FLYING TIGER LINE, a Delaware Corporation, Tiger

International, Inc., a Delaware Corporation,

Warren Transport, Inc., an Iowa

Corporation, Plaintiffs &




a/k/a Teamsters Pension Plan of Philadelphia and

Vicinity, and Charles J. Schaffer, Jr.,




a multiemployer pension plan, Teamsters Pension Trust Fund

of Philadelphia and Vicinity, a multiemployer pension plan,

Western Pennsylvania Teamsters and Employers Pension Fund, a

multiemployer pension plan, Teamsters Local 641 Pension

Fund, a multiemployer pension plan, and Central Pennsylvania

Teamsters Pension Fund, a multiemployer pension plan, each

sued individually and as a member of a class of similarly

situated multiemployer pension plans who assert withdrawal

liability, against Hall's Motor Transit Company, under the

Multiemployer Pension Plan Amendments Act of 1980.

Appeal of The FLYING TIGER LINE, INC., Tiger International

Inc. and Warren Transport, Inc., Appellants.

Nos. 86-5817, 86-5931, 87-3063.

United States Court of Appeals, Third Circuit

September 30, 1987

Argued July 13, 1987.

Page 1242

Douglas D. Broadwater (argued), Cravath, Swaine & Moore, New York City, R. Franklin Balotti, Jesse A. Finkelstein, William W. Bowser, Richards, Layton & Finger, Wilmington, Del., for appellants.

Irving Morris, Carolyn D. Macks, Morris & Rosenthal, P.A., Wilmington, Del., Michael Evan Jaffe (argued), Rodney F. Page, James J. Armbruster, Arent, Fox, Kintner, Plotkin, Kahn, Washington, D.C., for appellee

Page 1243

Central States, Southwest and Southeast Areas Pension Fund.

Sidney Reitman, Bennet D. Zurofsky, Newark, N.J., for appellee Trucking Employees of North Jersey Welfare Fund, Inc.

D. Gayle Loftis, Chasan, Lerner, Tarrant & D'Italia, Jersey City, N.J., for appellee Teamsters Local 641 Pension Fund.

Thomas W. Jennings, Kent Cprek, Sagot & Jennings, Philadelphia, Pa., for appellee Teamsters Pension Trust Fund of Philadelphia and Vicinity.

Vincent P. Szeligo, Wick, Rich, Fluke & Streiff, Pittsburgh, Pa., for appellee Western Pennsylvania Teamsters and Employers Pension Fund.

Joel A. Smith, H. Victoria Hedian, Abato, Rubenstein and Abato, P.A., Lutherville, Md., for appellee Freight Drivers and Helpers Local Union No. 557 Pension Fund.

Peter H. Gould, Asst. Gen. Counsel, Stuart E. Bernsen (argued), Pension Ben. Guar. Corp., Washington, D.C., for amicus curiae Pension Ben. Guar. Corp.

Before HIGGINBOTHAM, BECKER and HUNTER, Circuit Judges.


A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

These appeals require us to determine whether a federal district court or an arbitrator should resolve the question whether a corporate entity is an employer subject to the Multiemployer Pension Plan Amendments Act of 1980 ("MPPAA" or "the Act"), 29 U.S.C. Secs. 1381-1461 (1982 & Supp. I 1983 & Supp. II 1984 & Supp. III 1985). This employer status question arises in the context of a dispute concerning MPPAA section 1392(c), the so-called "evade or avoid" provision. The district court concluded that, pursuant to 29 U.S.C. Sec. 1401 (1982), this question initially must be decided by an arbitrator. Appellants argue that their legal status--whether they are a MPPAA "employer"--is a predicate issue that must be resolved by a federal district court before an arbitrator can assert jurisdiction under MPPAA. Because we conclude that these appeals involve provisions of the Act that prescribe arbitration as the appropriate method of dispute resolution, we will affirm the district court's order staying its proceedings pending arbitration.


Under the Employee Retirement Income Security Act of 1974, Pub.L. No. 93-406, 88 Stat. 1020 ("ERISA"), as amended by MPPAA, employers may make contributions to one or more pension plans on behalf of all their employees who belong to a participating union. Congress enacted MPPAA in particular because it found that existing legislation "did not adequately protect plans from the adverse consequences that resulted when individual employers terminate[d] their participation in, or withdr[e]w from, multiemployer plans." 1 Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 722, 104 S.Ct. 2709, 2714, 81 L.Ed.2d 601 (1984) ("R.A. Gray "); accord IUE AFL-CIO Pension Fund v. Barker & Williamson, Inc., 788 F.2d 118, 127 (3d Cir.1986) ("The MPPAA was designed '(1) to protect the interests of participants and beneficiaries in financially distressed multiemployer plans, and (2) ... to ensure benefit security to plan participants.' ") (original ellipses) (quoting H.R.Rep. No. 869, 96th Cong., 2d Sess. 71 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 2918, 2939) ("Barker & Williamson "). The Act addressed this problem by assessing such employers with

Page 1244

withdrawal liability, defined in the statute as the employer's adjusted "allocable amount of unfunded vested benefits." 29 U.S.C. Sec. 1381(b)(1) (1982).

We will briefly outline the MPPAA provisions that are relevant to this case. The Act requires that "all ... trades or businesses (whether or not incorporated) [that] are under common control", as defined in regulations issued by amicus curiae the Pension Benefit Guaranty Corporation ("PBGC"), "shall be treated ... as a single employer." 2 29 U.S.C. Sec. 1301(b)(1) (1982). Since a controlled group is to be treated as a single employer, each member of such a group is liable for the withdrawal of any other member of the group. See Barker & Williamson, 788 F.2d at 127-28. In determining whether a withdrawal has occurred, MPPAA explicitly provides that any transaction designed to "evade or avoid" withdrawal liability should be ignored: "[i]f a principal purpose of any transaction is to evade or avoid liability under this part, this part shall be applied (and liability shall be determined and collected) without regard to such transaction." 29 U.S.C. 1392(c) (1982).

Provisions for the quick and informal resolution of withdrawal liability disputes are an integral part of MPPAA's statutory scheme. The Act requires a plan's trustees to determine initially whether a withdrawal has occurred. 29 U.S.C. Secs. 1382(1), 1399(b)(1)(A)(i) (1982). When the trustees conclude that a withdrawal has taken place, they must then notify the employer of the amount of liability and demand payment in accordance with an amortization schedule. 29 U.S.C. Secs. 1382(2), 1382(3), 1399(b)(1)(B) (1982). Thereafter, the employer may within 90 days ask the trustees to conduct a reasonable "review" of the computed liability. 29 U.S.C. Sec. 1399(b)(2)(A)(i) (1982). If a dispute remains, either party may initiate arbitration proceedings. MPPAA provides that

[a]ny dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 1381 through 1399 of ... title shall be resolved through arbitration. Either party may initiate the arbitration proceeding within [specified time periods].

29 U.S.C. Sec. 1401(a)(1) (1982). Finally, "[u]pon completion of the arbitration proceedings in favor of one of the parties," MPPAA permits "any party thereto" to bring an action "to enforce, vacate or modify the arbitrator's award" in the appropriate federal district court. 29 U.S.C. Sec. 1401(b)(2) (1982). Regardless of whether the employer requests review by a plan's trustees or initiates arbitration, however, the employer must begin making interim payments of the withdrawal liability in accordance with the plan's schedule within 60 days of notice of liability. See 29 U.S.C. Secs. 1399(c)(2), 1401(d) (1982); see also Banner Indus., Inc. v. Central States, Southeast & Southwest Areas Pension Fund, 663 F.Supp. 1292, 1297-98 (N.D.Ill.1987) ("Congress has clearly established the balance it deems appropriate with respect to which party should have use of the money during the pendency of a dispute over withdrawal liability."); Robbins v. Pepsi-Cola Metro. Bottling Co., 636 F.Supp. 641, 677 (N.D.Ill.) ("The MPPAA contemplates a 'pay now, dispute later' procedure."), petition for supersedeas bond or entry of stay pending appeal denied, 800 F.2d 641 (7th Cir.1986).


Appellant Tiger International, Inc. ("Tiger"), is a holding company engaged through its subsidiaries--which include appellants The Flying Tiger Line, Inc. and Warren Transport, Inc.--in the air cargo, transportation, and trucking businesses. On January 2, 1980, Tiger acquired 100% of the stock of Hall's Motor Transit Co. ("Hall's"), a large interstate trucking company. Pursuant to collective bargaining agreements, Hall's had contributed for many years until early 1986 to a number of multiemployer pension plans on behalf of

Page 1245

most of its approximately 3,500 employees. A number of factors, including deregulation of the trucking industry, caused Hall's to incur operating losses each year from 1981 through 1984. These losses occurred notwithstanding the extensive financial support Hall's received from Tiger during that time period. 3

In January 1985, Tiger sold 75% of its Hall's stock to Hall's Acquisition Corporation ("HAC"), a corporation wholly owned by Alvin Bodford, Hall's Chief Financial Officer. In consideration for the stock it received in this deal, HAC gave Tiger a $10.5 million promissory note that memorialized Hall's preexisting indebtedness to Tiger. To secure this note, Tiger received a blanket subordinated security interest in certain real and personal property of Hall's.

When HAC thus became the principal owner of Hall's, HAC agreed to...

To continue reading