00-2472Central States, Southeast and Southwest Areas Pension Fund v. Bomar National, Inc.

“Hi-Way argues that congressional intent and the statutory language establish an intent that no funds be collected from the employer until withdrawal has taken place. Hi-Way points to 29 U.S.C. sec. 1381(a), which provides that ‘[i]f 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 withdrawal liability.’ Hi-Way attempts to draw further support from sec. 1382, which provides that the plan sponsor shall determine the amount of, issue notice of, and collect withdrawal liability ‘[w]hen an employer withdraws from a multiemployer plan.’ It is, of course, true that withdrawal liability does not arise until a withdrawal has occurred, but whether and when there has been a withdrawal is part of the merits, which, under the MPPAA, must be resolved in arbitration. Hi-Way contends that the language of the act makes it clear that there must be actual and uncontested withdrawal from a plan before an employer can issue any notice of withdrawal liability-including interim liability. This is incorrect. Such a policy would be directly at odds with the mandate of the MPPAA that, until the merits of a dispute about withdrawal are decided, an employer is liable for interim payments (subject, of course, to refund if he prevails).”

Affirmed.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, Grady, J., Cudahy, J.