Glover v. SDR Cartage Co., Inc.

• Citation: 681 F. Supp. 1293
• Decision Date: 01 March 1988
• Docket Number: No. 86 C 4297.,86 C 4297.
• Parties: Paul L. GLOVER, et al., Plaintiffs, v. S.D.R. CARTAGE COMPANY, INC., etc., et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

681 F. Supp. 1293

Paul L. GLOVER, et al., Plaintiffs, v. S.D.R. CARTAGE COMPANY, INC., etc., et al., Defendants.

No. 86 C 4297.

United States District Court, N.D. Illinois, E.D.

March 1, 1988.

Joseph M. Burns, Karen I. Engelhardt, Jacobs Burns Sugarman & Orlove, Chicago, Ill., for plaintiffs.

John J. Arado, Christopher A. Keele, Wildman Harrold Allen & Dixon, Chicago, Ill., for defendants.

MEMORANDUM AND ORDER

MORAN, District Judge.

This case involves the question of whether controlling stockholders and officers of a corporation that has withdrawn from a multiemployer pension plan and has been assessed withdrawal liability can be held personally liable for this corporate debt. Plaintiffs, trustees of the Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund ("Fund"), initiated this action under the Employee Retirement Income Security Act ("ERISA") as amended by the Multiemployer Pension Plan Amendment Act of 1980 ("MPPAA"), Pub.L. 96-364, 94 Stat. 1208 (1980), 29 U.S.C. §§ 1001 et seq., to recover an assessment of withdrawal liability. Defendants are S.D.R. Cartage Company ("S.D.R."), an Illinois corporation, and Steven and Rose Marie Balich ("Baliches"), officers and controlling stockholders of S.D.R. The Baliches moved to dismiss this action against them pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, claiming that they are not liable for S.D.R.'s withdrawal liability because they are not "employers" as required by 29 U.S. C. § 1381.¹ For the reasons stated, the motion is granted.

FACTS

S.D.R. and the Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) entered into a collective bargaining agreement under which S.D.R. was required to contribute to the Fund, a multiemployer pension plan. On May 25, 1984, S.D.R. stopped making contributions and completely withdrew from the Fund. Plaintiffs notified S.D.R. that it was being assessed a withdrawal liability of $24,479, which was to be paid in quarterly installments. S.D.R. failed to make the quarterly payments and plaintiffs notified S.D.R. that unless the company made the first two payments within 60 days, it would become liable for the entire $24,479 plus accrued interest. S.D.R. did not make the payments and plaintiffs brought this action.

DISCUSSION

The Baliches contend that they cannot be held liable for S.D.R.'s withdrawal liability because they are not "employers" within the meaning of 29 U.S.C. § 1381(a). They first argue that the broad definition of employer in subchapter I of ERISA does not apply to withdrawal liability. Alternatively, they contend that even if this statutory definition is applicable, it does not include controlling stockholders or officers of a corporation simply by virtue of those positions. Finally, the Baliches claim that plaintiffs have alleged no facts to allow this court to "pierce the corporate veil" of S.D.R. and hold them personally liable.

I. Definition of Employer for Withdrawal Liability

A. Limitation Clause of Subchapter I

While the Seventh Circuit Court of Appeals has yet to decide whether the subchapter I definition of "employer" applies to withdrawal liability described in subchapter III, two other courts of appeals have determined that the subchapter I definition does not so apply. See DeBreceni v. Graf Bros. Leasing, Inc., 828 F.2d 877, 879-80 (1st Cir.1987), cert. denied, ___ U.S. ___, 108 S.Ct. 1024, 98 L.Ed.2d 988, (1988); Connors v. P & M Coal Co., 801 F.2d 1373, 1377 (D.C.Cir.1986). Although deference to these decisions is not automatic, we have been instructed by the Seventh Circuit to give such decisions "respectful consideration ... and follow them whenever we can." Colby v. J.C. Penney Co., 811 F.2d 1119, 1123 (7th Cir.1987). For the following reasons we find persuasive the conclusions of these courts.

No definition of employer appears in subchapter III and, though the term employer is defined in subchapter I, this definition is specifically limited to subchapter I² and does not automatically apply to other subchapters unless specifically incorporated by reference. Nachman Corp. v. Pension Benefit Guaranty Corp., 446 U.S. 359, 370 & n. 14, 100 S.Ct. 1723, 1730 & n. 14, 64 L.Ed.2d 354 (1980); Gambino v. Index Sales Corp., 673 F.Supp. 1450, 1453 n. 5 (N.D.Ill.1987). The absence of an explicit cross-reference within subchapter III indicates that Congress did not intend the subchapter I definition of employer to be applicable to subchapter III. Refined Sugars, Inc. v. Local 807 Labor-Management Pension Fund, 632 F.Supp. 630, 632 (S.D.N.Y. 1986). Cf. 29 U.S.C. § 1301(a)(1) (1982) (explicitly incorporating subchapter I definition of administrator in subchapter III); 29 U.S.C.A. § 1301(a)(15) (West Supp.1987) (explicitly incorporating subchapter I definition of defined benefit plan in subchapter III); 29 U.S.C.A. § 1301(a)(20) (West Supp. 1987) (explicitly incorporating subchapter I definition of person in subchapter III).

Plaintiffs argue that the subchapter I definition of employer is incorporated by the subchapter III enforcement provision which states that an employer's failure to make timely withdrawal payments should be treated in the same manner as delinquent pension contributions, an obligation imposed by subchapter I, 29 U.S.C. § 1451(b) (1982).³ The legislative history of the MPPAA indicates that § 1451(b) equates only the remedy for failure to pay withdrawal liability, e.g. unpaid withdrawal liability plus interest plus liquidated damages, with a failure to make pension contributions, see H.R.Rep. No. 869(II), 96th Cong., 2d Sess. 42, reprinted in 1980 U.S. Code Cong. & Admin.News 2993, 3032, and should not be interpreted as a broad congressional mandate to incorporate subchapter I definitions in subchapter III.⁴

There is no strong policy reason to apply the subchapter I definition of employer to withdrawal liability. Unlike suits brought to collect delinquent pension contributions or unpaid wages, where those failing to contribute are fully accountable for not doing so, in the withdrawal liability context individuals may be entirely free of fault, yet upon the employer's withdrawal from the pension plan, the plan may still have unfunded vested benefits which result in a liability assessment. Thus, the reason for holding individuals personally liable as employers for unpaid wages or pension contributions is absent when assessing withdrawal liabilities. See Combs, 634 F.Supp. at 16.

B. Stockholders and Officers' Liability

Plaintiffs argue that this court should define employer for withdrawal liability purposes to include corporate officers and controlling shareholders. To hold stockholders and officers personally liable for a withdrawal assessment, we apply principles of corporate law and determine whether sufficient facts have been alleged to pierce S.D.R.'s corporate veil. See DeBreceni, 828 F.2d at 878 (stringent "pierce the corporate veil" test applies in withdrawal liability cases); P & M Coal, 801 F.2d at 1374 (same). Accord Scarbrough v. Perez, 683 F.Supp. 659, 660-61 (W.D.Tenn. 1987); Canario v. Byrnes Express & Trucking Co., 644 F.Supp. 744, 750-51 (E.D.N.Y.1986), withdrawn due to settlement, 652 F.Supp. 385 (E.D.N.Y.1987); Combs, 634 F.Supp. at 19; Connors v. Darryll Waggle Construction, Inc., 631 F.Supp. 1188, 1191 (D.D.C.1986); Connors v. B.M.C. Coal Co., 634 F.Supp. 74, 77 (D.D.C.1986).

The MPPAA evinces no Congressional intent to treat corporate debts for withdrawal liability differently from any other corporate debts or to hold officers and shareholders personally liable for withdrawal liability assessments. See DeBreceni, 828 F.2d at 880. Further, unlike minimum wage or other payments that a corporation can choose not to pay, thus preferring some creditors to its employees, corporations do not have the same control over withdrawal liability payments. As the DeBreceni court noted, bankruptcy is the context in which stockholder and officer liability for withdrawal assessments is most likely to be relevant. Id.

If the liabilities of the employer corporation exceed its assets, which is the likely condition when a pension fund seeks to recover against officers or shareholders personally, the corporation will enter into bankruptcy proceedings, thereby losing control over which creditors receive payments.

Id. at 880-81. Thus, once a corporation ceases doing business, withdraws from the relevant pension plan and incurs withdrawal liability, the officers and shareholders are not responsible for deciding which creditors get paid and which do not. Holding such individuals liable will not increase the likelihood that withdrawal payments will be made to pension fund⁵ and thus does not further the purposes of the MPPAA. As a matter of policy, routinely holding officers and stockholders liable for withdrawal payments will discourage these individuals from directing corporations to contribute to multiemployer pension plans and thus hurt the very persons whom the MPPAA sought to benefit — the employees. Id. at 881. This would be contrary to the intent to the MPPAA. See 29 U.S.C. § 1001a(c)(2) (1982).

Additionally, the Pension Benefit Guaranty Corporation (PBGC), the entity administering withdrawal liability under ERISA, supported this position in an opinion letter concerning the liability of corporate shareholders and officers for a corporation's withdrawal assessments. The opinion letter stated:

ERISA has no special rules regarding shareholder or officer liability.... This issue is usually determined by state law which generally provides that shareholders are not liable for the debts of a corporation. You should, however, be aware that the laws of every state contain exemptions to this general principle.

Massachusetts State Carpenters Pension Fund v. Atlantic Diving Co., 635 F.Supp. 9, 14 n. 3 (D.Mass.1984) (quoting PBGC Opinion Letter 83-038 (Dec. 14, 1982)). Interpretation of ERISA by the PBGC should not...