1 This opinion has been circulated among all judges of this circuit

in regular active service pursuant to Circuit Rule 40(e). No judge

favored a rehearing en banc on the question of whether decertification provides a defense per se to liability in an action

brought under 29 U.S.C. § 1145.

In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-4217

CENTRAL STATES, SOUTHEAST AND SOUTHWEST

AREAS PENSION FUND and HOWARD MCDOUGAL,

Plaintiffs-Appellants,

v.

SCHILLI CORPORATION,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 03 C 8880—John W. Darrah, Judge.

____________

ARGUED JUNE 2, 2005—DECIDED AUGUST 23, 20051

____________

Before FLAUM,Chief Judge, andBAUER andEVANS, Circuit

Judges.

FLAUM, Chief Judge. The Multiemployer Pension Plan

Amendments Act (“MPPAA”), Pub. L. 96-364, 94 Stat. 1208

(Sept. 26, 1980), imposes liability on employers who
2 No. 04-4217

withdraw from multiemployer plans governed by the

Employee Retirement Income Security Act (“ERISA”), 29

U.S.C. §§ 1001-1461. Central States, Southeast and Southwest Areas Pension Fund (“Central States”) is a

multiemployer plan governed by ERISA. Schilli Corporation

is an employer who participated in the plan until the late

1990s. Central States assessed Schilli liability for allegedly

withdrawing from the plan in part in 1997. Schilli paid

Central States the assessment under protest, and the

parties later submitted their dispute to arbitration. The

arbitrator concluded that Schilli had not withdrawn from

the plan in 1997 and ordered Central States to refund the

assessment. Central States then filed this action under 29

U.S.C. § 1401(b)(2) to vacate the arbitrator’s award. On

cross-motions for summary judgment, the district court

affirmed the arbitrator’s award. Central States appeals and,

for the reasons stated herein, we affirm.

I. Background

Schilli is the parent corporation of three wholly-owned

subsidiaries. One of those subsidiaries, Truck Transport, is

a motor carrier providing regulated, for-hire transportation

services. In 1997, it operated out of a terminal in Batesville,

Arkansas, where its employees were represented by the

International Brotherhood of Teamsters Local Union No.

878 (“Local 878”). Truck Transport and Local 878 had

negotiated a series of consecutive collective bargaining

agreements (“CBAs”) that obligated Truck Transport to

contribute specified amounts to Central States’ pension

fund on behalf of all employees in the Batesville bargaining

unit. The most recent of those CBAs extended from July 10,

1994 through January 10, 1998.

In addition to the CBAs, on May 31, 1987, Truck Transport and Local 878 signed a separate document entitled

“Participation Agreement.” The Participation Agreement
No. 04-4217 3

obligates Truck Transport to contribute to Central States a

set amount per week “for its bargaining unit Employees

pursuant to the terms of the collective bargaining agreement.” The parties to the document “agree to be bound

by . . . all of the terms of the Trust Agreement(s) creating”

Central States. It provides, moreover:

This Agreement shall continue in full force and effect

until such time as the Employer notifies the Fund(s) by

certified mail (with a copy to the Local Union) that the

Employer is no longer under a legal duty to

make contributions to the Fund(s). The Employer shall

set forth in the required written notice to the Fund(s)

the specific basis upon which the Employer is relying in

terminating his obligation to make contributions to the

Fund(s). The Employer expressly agrees and hereby

acknowledges by the signing of this Agreement that its

obligation to make contributions to the Fund(s) shall

continue until the above-mentioned written notice is

received by the Fund(s) and the Trustees acknowledge

the Employer’s termination in writing.

Central States bills participating employers on a monthly

basis for their contributions to the pension fund. It requires

that employers sign a form with the following language

when they submit their monthly contributions:

The employer hereby reaffirms his obligation to make

contributions required by the Collective Bargaining

Agreement and further represents that all employees

eligible to participate in the Fund, in accordance

with the rules of the Fund and the “Employee Retirement Income Security Act of 1974”, are being reported

and only those eligible employees are being reported.

Truck Transport signed and submitted these monthly

certification clauses along with each payment it made to

Central States.
4 No. 04-4217

In November 1997, employees at the Batesville terminal

filed a petition with the National Labor Relations Board

(“NLRB”) under 29 U.S.C. § 159(c)(1)(A)(ii), asserting

that Local 878 no longer represented a majority of the

workers in the Batesville bargaining unit. The NLRB then

held an election, and a majority of the employees voted

to decertify the union as their representative. On November

21, 1997, the NLRB confirmed the election results

and announced that Local 878 no longer served as the

exclusive bargaining representative of the Batesville

employees.

Following the election, Truck Transport conducted

business as usual. Many of its employees kept their same

jobs fulfilling their same duties. In December 1997 and

January 1998, Truck Transport submitted its monthly

contributions accompanied by signed certification clauses on

behalf of its employees. At no time during 1997 did Truck

Transport notify Central States of the decertification or

contend that it had been relieved of its duty to contribute to

the fund.

In January 1998, Truck Transport lost its largest customer to a competitor. The substantial drop in business forced Truck Transport to close the Batesville terminal

on January 10, 1998. It ceased contributing to Central

States on that date. Although Central States was aware

of the terminal’s closing soon thereafter, it did not learn

of Local 878’s decertification until March 1998.

The MPPAA requires that, upon an employer’s withdrawal from a multiemployer plan, the plan determine

the amount of withdrawal liability due under a statutory formula, notify the employer of the amount of liability,

and collect that amount from the employer. 29 U.S.C.

§ 1382. After some initial confusion about the timing of

the events in question, Central States judged that Truck

Transport had withdrawn from the fund in 1997. It deter-
No. 04-4217 5

mined that Schilli’s other two subsidiaries, which also had

been contributing to the fund, withdrew in 1998. Because

all businesses under common control are treated as a single

entity when assessing withdrawal liability, see § 1301(b)(1),

Central States concluded that Schilli had partially withdrawn in 1997 and completely withdrawn in 1998. It

demanded payment accordingly. § 1399(b)(1)(B).

Although Schilli contested Central States’ assessment, it

paid the demanded sum. See § 1399(c)(2) (requiring prompt

payment to the plan “notwithstanding any request for

review or appeal”). After the parties failed to resolve their

disagreement informally, they submitted the dispute to

arbitration as required by the Act. See § 1401(a). In determining the timing of Truck Transport’s withdrawal, the

arbitrator noted that, for present purposes, an employer

withdraws from a plan only when it ceases to have an

obligation to contribute. The arbitrator found that the

Participation Agreement bound Truck Transport to contribute to the fund until it complied with the agreement’s notice

provision, and that Truck Transport had not given the

prescribed notice in 1997. Thus, it held that Truck Transport had not withdrawn in 1997 and that Schilli could not

be assessed partial withdrawal liability for that year.

Accordingly, the arbitrator ordered Central States to refund

Schilli the amount it had paid for allegedly withdrawing in

1997.

Central States then filed this action in the Northern

District of Illinois to vacate the arbitrator’s award. See

§ 1401(b)(2). On cross-motions for summary judgment,

the district court held that Schilli had not partially withdrawn in 1997 and affirmed the arbitrator’s award. Central

States appeals.
6 No. 04-4217

II. Discussion

Because this case turns on a question of law, the district court properly reviewed the arbitrator’s conclusions de

novo. See Central States, S.E. & S.W. Areas Pension Fund

v. Midwest Motor Express, Inc., 181 F.3d 799, 805 (7th Cir.

1999). We, in turn, review de novo the district court’s grant

of summary judgment. Id. at 804. Summary judgment is

appropriate only if our resolution of the legal issue shows

that the movant is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(c); O’Kane v. Apfel, 224 F.3d 686, 688 (7th

Cir. 2000).

Multiemployer plans are defined-benefit plans, meaning

that they must pay beneficiaries a set level of benefits “even

if the contributions they expected to receive do not materialize.” Central States, S.E. & S.W. Areas Pension Fund v.

Gerber Truck Serv., Inc., 870 F.2d 1148, 1151 (7th Cir.

1989) (en banc). Accordingly, when an employer withdraws

from a multiemployer plan and stops contributing, there is

a risk that the burden of funding its employees’ benefits will

be shifted to the other employers in the plan or to the

Pension Benefit Guaranty Corporation, which ensures these

benefits. Central States, S.E. & S.W. Areas Pension Fund v.

Slotky, 956 F.2d 1369, 1371 (7th Cir. 1992). The MPPAA

guards against this risk by imposing withdrawal liability on

employers who pull out of multiemployer plans. 29 U.S.C.

§ 1381(a). The statute sets this liability at an amount equal

to a proportionate share of the withdrawing employer’s

unfunded vested benefits. Connolly v. Pension Benefit Guar.

Corp., 475 U.S. 211, 217 (1986). Liability is imposed both

for partial and complete withdrawals from a plan. 29 U.S.C.

§ 1381(a).

The parties agree that in 1998, two of Schilli’s subsidiaries that previously had been contributing to Central States

withdrew from the plan. The principal issue in this appeal

is whether its third subsidiary, Truck Transport, withdrew
No. 04-4217 7

in 1997 or 1998. If Truck Transport withdrew in 1998, then

Schilli may be assessed withdrawal liability for that year

only, when all of its subsidiaries withdrew. If, however,

Truck Transport withdrew in 1997, Schilli may be assessed

liability for a partial withdrawal in 1997 in addition to its

complete withdrawal in 1998. See § 1301(b)(1) (treating all

businesses under common control as a single entity).

Subject to exceptions not relevant here, an employer

partially withdraws in a given year “if for such plan

year . . . there is a partial cessation of the employer’s

contribution obligation.” 29 U.S.C. § 1385(a)(2).

There is a partial cessation of the employer’s contribution obligation for the plan year if, during such year . . .

the employer permanently ceases to have an obligation

to contribute under one or more but fewer than all

collective bargaining agreements under which the

employer has been obligated to contribute under the

plan but continues to perform work in the jurisdiction

of the collective bargaining agreement of the type for

which contributions were previously required . . . .

§ 1385(b)(2)(A)(i). Thus, to assess Schilli for a partial

withdrawal in 1997, Central States must show that Truck

Transport: (i) ceased having an obligation to contribute

to the fund in 1997; and (ii) continued to perform work

at the Batesville terminal after its contribution obligation ended. Schilli admits that Truck Transport “continue[d]

to perform work in the jurisdiction of the collective bargaining agreement” through 1998. The only dispute, therefore,

is whether Truck Transport’s obligation to contribute ceased

in 1997.

Central States contends that the decertification of the

union in 1997 automatically extinguished Truck Transport’s

obligation to contribute. Schilli agrees that decertification

terminated Truck Transport’s obligations under the 1994

CBA. It argues, however, that Truck Transport remained
8 No. 04-4217

2 Schilli also contends that Truck Transport remained obligated

to contribute until 1998 by virtue of the monthly certification

clauses it signed in December 1997 and January 1998. Because we

conclude that Truck Transport remained bound by the Participation Agreement, we do not reach the effect of the certification

clauses.

bound to contribute to the fund under the Participation

Agreement until it complied with that document’s notice

provision. Because it did not give the prescribed notice in

1997, Schilli asserts that Truck Transport remained

obligated to contribute until 1998.2

Central States rejoins that even if the decertification

did not void the Participation Agreement by operation of

law, the terms of that document condition Truck Transport’s obligation to contribute upon Local 878’s status as the

exclusive bargaining representative of the Batesville employees. Central States also argues that it waived

its contractual right to receive the prescribed notice,

thereby releasing Truck Transport from its obligations

and triggering a partial withdrawal in 1997. Finally, it

asserts that the implied duty of good faith and fair dealing precludes Truck Transport from relying on its failure to

give notice to avoid withdrawal liability. We address these

arguments in turn.

A. Decertification

Central States argues that the decertification of Local 878

terminated Truck Transport’s obligation to contribute under

both the 1994 CBA and the Participation Agreement by

operation of law. Because the NLRB confirmed the results

of the election on November 21, 1997, Central States

contends that Truck Transport withdrew from the plan that

year. Schilli suggests, without stating explicitly, that

Central States is judicially estopped from making this
No. 04-4217 9

argument because it took the opposite position in a prior

case. Schilli’s brief neither uses the term “judicial estoppel”

nor cites any authority on that doctrine. “[A] litigant who

fails to press a point by supporting it with pertinent

authority, or by showing why it is sound despite a lack of

supporting authority, forfeits the point.” Smith v. Northeastern Ill. Univ., 388 F.3d 559, 569 (7th Cir. 2004) (quoting

Tyler v. Runyon, 70 F.3d 458, 464 (7th Cir. 1995)). Accordingly, Schilli has forfeited any claim of judicial estoppel.

Turning to the merits, Schilli contends that although the

decertification voided the 1994 CBA, the terms of the

Participation Agreement make clear that Truck Transport’s

obligations survive that event. Schilli highlights the

language of the notice clause, which provides that the

agreement “shall continue in full force and effect until such

time as” Truck Transport notifies Central States that it “is

no longer under a legal duty to make contributions to the

Fund(s).” That clause emphasizes that Truck Transport’s

“obligation to make contributions to the Fund(s) shall

continue until the above-mentioned written notice is received” and acknowledged by Central States. Because Truck

Transport did not give this notice in 1997, Schilli argues

that its subsidiary remained obligated to contribute until

1998 despite the decertification of the union.

We analyze Truck Transport’s obligation to contribute

by considering who might enforce the Participation Agreement. At the outset, we conclude that decertification terminated the union’s right to enforce the agreement. Local 878 negotiated the Participation Agreement

on behalf of all of the members of the Batesville collective bargaining unit—whether members of the union or

not. The union enjoyed the authority to act as the exclusive representative of the bargaining unit, speaking for

its supporters and detractors alike, only because federal law

vested it with that power. See 29 U.S.C. § 159(a); Brooks v.

NLRB, 348 U.S. 96, 103 (1954). But federal law’s grant of
10 No. 04-4217

that authority is conditioned upon Local 878 being “designated or selected . . . by the majority of the employees in

[the bargaining] unit.” 29 U.S.C. § 159(a). The employees’

vote to decertify the union and the NLRB’s confirmation of

that election established conclusively that Local 878 no

longer enjoyed the support of a majority of the employees in

the unit. See 29 U.S.C. § 159(a), (c). Accordingly, Local 878’s

authority to represent all bargaining unit employees and to

enforce any contractual rights it had negotiated on behalf

of those employees as a class dissolved at that point. See

Pioneer Natural Res. USA, Inc. v. Paper, Allied Indus.,

Chem. & Energy Workers Int’l Union Local 4-487, 338 F.3d

440, 441-42 (5th Cir. 2003); Local Union No. 666, Int’l. Bhd.

of Elec. Workers v. Stokes Elec. Serv., Inc., 225 F.3d 415, 424

(4th Cir. 2000); Sheet Metal Workers’ Int’l Ass’n, Local 206

v. W. Coast Sheet Metal Co., 954 F.2d 1506, 1509 (9th Cir.

1992); N. Peter Lareau, Labor & Employment Law §

12.04[3][b][ii] (2003). Cf. Retail Clerks Int’l Ass’n AFL-CIO

v. Montgomery Ward & Co., 316 F.2d 754, 757 (7th Cir.

1963). Because Local 878 negotiated the Participation

Agreement in its capacity as the exclusive bargaining

representative of all employees in the Batesville unit, its

right to enforce that agreement ended at decertification.

This is true despite Truck Transport’s failure to comply

with the notice clause of the Participation Agreement.

Decertification terminates a union’s rights by operation

of law without regard to the language of the contract. Just

as decertification nullified the 1994 CBA before it would

have expired by its terms, the Participation Agreement

dissolved despite language purporting to continue it “in full

force and effect” until the described notice was given.

The union is not the only party with standing to enforce that agreement, however. The MPPAA authorizes

multiemployer plans to sue for delinquent contributions

owed “under the terms of the plan or under the terms of

a collectively bargained agreement.” 29 U.S.C. § 1145;
No. 04-4217 11

3 Section 1392(a) of Title 29 provides that, for purposes of

withdrawal liability, an employer’s “ ‘obligation to contribute’ . . .

does not include an obligation . . . to pay delinquent contributions.” Neither party addresses whether this language might

mean that an employer does not have an “obligation to contribute”

for withdrawal liability purposes merely because it faces exposure

in a § 1145 action. We leave for another day the effect of this

provision.

see also § 1132(d)(1). Moreover, § 1145 gives a multiemployer plan greater rights under these documents than

the union itself, entitling a plan “to enforce the writing

without regard to understandings or defenses applicable

to the original parties.” Central States, S.E. & S.W.

Areas Pension Fund v. Gerber Truck Serv., Inc., 870 F.2d

1148, 1149 (7th Cir. 1989) (en banc). Thus, many of the

defenses that Truck Transport might raise in an action

brought by Local 878 would not be viable in an action

brought by Central States.

Schilli argues that if Truck Transport would have

been liable in a § 1145 action for contributions through

1998, it remained “obligated to contribute” for withdrawal

liability purposes until then. We assume without deciding

that this is true.3

 On this assumption, the question becomes

whether decertification is a defense in a § 1145 action. If so,

Central States could not have prevailed against Truck

Transport for contributions after the union’s decertification,

and Truck Transport ceased having an “obligation to

contribute” for withdrawal liability purposes at that point.

Central States urges us to recognize decertification as

a defense to § 1145 liability. We conclude, however, that our

precedents foreclose this course. In Gerber Truck, we ruled

that “the lack of majority support for the union and the

consequent ineffectiveness of [a contract] under labor law”

is not a valid defense in a § 1145 action. 870 F.2d at 1153

(en banc). We took a similarly narrow view of the available
12 No. 04-4217

defenses in Moriarty v. Svec, 164 F.3d 323 (7th Cir. 1998).

In that case, a pension fund sued an employer under § 1145

for delinquent contributions due under a CBA between the

employer and a local union. While the case was pending in

the district court, the NLRB ruled that some of the defendant’s employees were not members of the collective

bargaining unit represented by the union that had negotiated the CBA. The defendant argued that because the union

did not represent the employees in question, “it could not

collectively bargain on their behalf, and consequently, the

CBAs [were] invalid with respect to” those employees. Id. at

335. Citing Gerber Truck, we rejected this argument.

Moriarty, 164 F.3d at 335 (“nothing in ERISA makes the

obligation to contribute depend on the existence of a valid

collective bargaining agreement”) (internal quotation and

citation omitted).

Moreover, in Martin v. Garman Construction Co., 945

F.2d 1000 (7th Cir. 1991), the employer had signed a

“prehire agreement” under § 8(f) of the National Labor

Relations Act, 29 U.S.C. § 158(f), which obligated it to

contribute to pension and trust funds on behalf of its

employees. Throughout the term of the agreement, the

employer, Garman, employed only one person in the

relevant bargaining unit. Garman sought to repudiate the

agreement and end its contributions long before the agreement would have expired by its terms. The union filed an

unfair labor practice charge with the NLRB and the funds

sued for delinquent contributions under § 1145.

Relying on the “one-person unit rule,” the NLRB found

that Garman had not committed an unfair labor practice.

This rule provides that where an employer employs one

or fewer employees on a permanent basis in the relevant

bargaining unit, the employer may, without violating

§ 8(a)(5) of the NLRA, “withdraw recognition from a

union, repudiate its contract with the union, or unilaterally

change employees’ terms and conditions of employment
No. 04-4217 13

4 Our opinion in Midwest Motor Express does not compel the

opposite conclusion. 181 F.3d 799. There, we mentioned in passing

that the decertification of a union had ended the employer’s

obligation to contribute to a pension fund. Id. at 803. The effect of

(continued...)

without affording a union an opportunity to bargain.” J.W.

Peters, Inc. v. Bridge, Structural & Reinforcing Iron Workers, Local Union 1, 398 F.3d 967, 973 (7th Cir. 2005)

(quoting Stack Electric, Inc., 290 N.L.R.B. 575, 577 (1988)).

The rule is based on the principle that “collective bargaining presupposes that there is more than one eligible person

who desires to bargain.” Id. at 973-74 (quoting Foreign Car

Ctr., Inc., 129 N.L.R.B. 319, 320 (1960)). Without others to

represent, collective bargaining is meaningless.

Garman then moved for summary judgment in the ERISA

proceeding, contending among other things that the NLRB’s

order was res judicata and collaterally estopped it from

being held liable under § 1145. We held that the NLRB’s

order did not have preclusive effect. Martin, 945 F.2d at

1003-06. Relying on Gerber Truck, moreover, we went on to

reject the one-person unit rule as a defense to § 1145

liability. Id. at 1004 (“The district court properly refused to

permit the one-man rule to impair the contract’s validity

under 29 U.S.C. § 1145.”).

Neither Gerber Truck, Moriarty, nor Martin squarely

addressed the decertification of a union. Nevertheless, these

cases reveal that a union’s lack of majority support or

authority to collectively bargain, standing alone, will not

preclude liability under § 1145. As explained above, a union

loses its rights upon decertification because it no longer

enjoys majority support or the authority to represent the

bargaining unit. Because the decertification defense rests

on these rationales, we hold that it does not serve as a

categorical bar to § 1145 liability.4
14 No. 04-4217

4 (...continued)

decertification, however, was not contested in that appeal. Nor did

either party address the interplay between § 1145 and withdrawal

liability, a consideration central to our holding. Thus, Midwest

Motor Express does not bind us here.

We note that several of our sister circuits have suggested or held that decertification is a defense in § 1145

actions. See La. Bricklayers & Trowel Trades Pension Fund

& Welfare Fund v. Alfred Miller Gen. Masonry Contracting

Co., 157 F.3d 404, 408 (5th Cir. 1998) (dicta); Agathos v.

Starlite Motel, 977 F.2d 1500, 1505 (3d Cir. 1992) (dicta); W.

Coast Sheet Metal Co., 954 F.2d at 1509-10 (holding). These

cases give only a cursory explanation of the rationales

underpinning the decertification defense. As explained, we

have previously rejected those rationales as bases for

defenses against § 1145 liability. Moreover, recognizing

decertification as a defense per se would not accord with §

1145’s language, which authorizes plans to sue for contributions due “under the terms of the plan or under the terms

of a collectively bargained agreement.” We therefore decline

to adopt the position of our sister circuits.

That is not to say, however, that decertification is irrelevant in this context. Both the text of § 1145 and Gerber

Truck make clear that an employer is not bound by a

contract that is unlawful. See 29 U.S.C. § 1145 (requiring

that employers contribute according to the terms of plans

only “to the extent not inconsistent with law”); Gerber

Truck, 870 F.2d at 1153 (“If the contract provides for the

commission of unlawful acts, it will not be enforced.”). If it

would have been unlawful for Truck Transport to continue

to make contributions under the Participation Agreement

following the union’s decertification, it would have a valid

defense. Central States does not develop an argument on

this point, however. It makes the related assertion that an

employer commits an unfair labor practice by bargaining
No. 04-4217 15

with a union after it has been decertified. But it fails to

argue or cite authority for the proposition that continuing

to make contributions is equivalent to bargaining with a

minority union. Because Central States has forfeited this

argument, see Northeastern Ill. Univ., 388 F.3d at 569, we

cannot conclude that decertification affords a defense to §

1145 liability under the facts of this case. Accordingly, the

decertification of Local 878 did not terminate Truck Transport’s obligation to contribute, for withdrawal liability

purposes, by operation of law.

B. Terms of the Participation Agreement

Central States argues in the alternative that even if

decertification does not give rise to a defense by operation

of law, the terms of the Participation Agreement themselves

condition Truck Transport’s duty to contribute upon

Local 878’s status as the exclusive bargaining representative of the Batesville employees. It contends, therefore, that

Truck Transport’s obligations terminated once Local 878

lost that status. As support for this argument, Central

States relies on the following language: “the Union and

the Employer have entered into a collective bargaining

agreement which provides for participation in [Central

States’ pension fund] in order to obtain . . . benefits for employees . . . represented by the Union and employed by the

Employer.” Central States reads this to mean that the

agreement is effective only as long as the employees are

“represented by the Union,” i.e., Local 878.

Central States’ reading cannot be squared with the notice

clause of the Participation Agreement. That clause explicitly provides that Truck Transport’s contribution duties will

continue until it gives the prescribed notice. While decertification terminated Local 878’s right to enforce the agreement notwithstanding this language, liability in a § 1145

action turns on “the terms of the plan or the terms of the
16 No. 04-4217

collectively bargained agreement.” Because Central States’

interpretation contradicts those terms, we reject this

argument.

C. Waiver

As a fallback position, Central States contends that it

waived the notice requirements of the Participation Agreement in 1997, thereby relieving Truck Transport of its

obligation to contribute and triggering withdrawal liability

for that year. As evidence of its claim of waiver, Central

States points out that it has never demanded that Truck

Transport comply with the notice provision. In general, a

party may waive its contractual rights impliedly by taking

“actions inconsistent with the assertion of those rights.”

Bank v. Truck Ins. Exch., 51 F.3d 736, 739 (7th Cir. 1995).

We cannot agree, however, that Central States’ actions in

1997 were inconsistent with its right to receive notice as

required by the agreement. Central States did not learn of

the union’s decertification until March 1998. Accordingly, it

would have had no occasion to demand compliance with the

notice provision in late 1997. We can draw no inferences

from its silence during that span. To the extent that Central

States’ later behavior waived its rights, that waiver did not

release Truck Transport from its obligations until 1998. We

therefore reject this argument.

D. Duty of Good Faith and Fair Dealing

Finally, Central States argues that the duty of good faith

and fair dealing obligates a party to take reasonable efforts

to bring about conditions precedent within its control. It

characterizes the notice provision as a condition precedent

to withdrawal liability, and asserts that, because Truck

Transport controlled whether to give notice, it was required

to do so immediately upon decertification. Central States
No. 04-4217 17

argues that because Truck Transport breached this duty, it

cannot rely on the lack of notice to avoid withdrawal

liability.

This argument does not withstand scrutiny. Central

States’ position implies that the duty of good faith obligates

employers to take actions necessary to ensure that they are

subject to withdrawal liability. An employer incurs withdrawal liability only when it withdraws partially or completely from a multiemployer plan. 29 U.S.C. § 1381(a).

Congress imposed withdrawal liability, however, to give

employers an incentive not to withdraw from multiemployer

plans. Midwest Motor Express, Inc., 181 F.3d at 806; see also

29 U.S.C. § 1001a(c). Whatever the duty of good faith may

require in this context, it cannot obligate employers to take

the very action that Congress enacted the MPPAA to

prevent.

III. Conclusion

For the reasons stated herein, we hold that Truck Transport remained obligated to contribute to Central States’

plan until it complied with the notice provision of the

Participation Agreement. Because Truck Transport did not

give Central States the prescribed notice in 1997, its

parent—Schilli—did not partially withdraw from the plan

that year. Accordingly, we AFFIRM the judgment of the

district court.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—8-23-05