PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-2403

THE TRUSTEES OF THE PLUMBERS AND PIPEFITTERS NATIONAL 

PENSION FUND,

Plaintiff – Appellee,

v.

PLUMBING SERVICES, INC.; PSI MECHANICAL, INC.,

Defendants – Appellants.

Appeal from the United States District Court for the Eastern 

District of Virginia, at Alexandria. T. S. Ellis, III, Senior 

District Judge. (1:13-cv-00118-TSE-JFA)

Argued: January 27, 2015 Decided: June 29, 2015

Before MOTZ and DIAZ, Circuit Judges, and DAVIS, Senior Circuit 

Judge.

Affirmed by published opinion. Judge Diaz wrote the opinion, in 

which Judge Motz and Senior Judge Davis joined. 

ARGUED: Gregory F. Yaghmai, RUTLEDGE & YAGHMAI, Birmingham, 

Alabama, for Appellants. Dinah S. Leventhal, O'DONOGHUE & 

O’DONOGHUE LLP, Washington, D.C., for Appellee. ON BRIEF: John 

R. Harney, O’DONOGHUE & O’DONOGHUE LLP, Washington, D.C., for 

Appellee.
2

DIAZ, Circuit Judge:

For nearly thirteen years, Plumbing Services, Inc. (“PSI”) 

made contributions to the Plumbers and Pipefitters National 

Pension Fund (the “Fund”), a multiemployer pension benefit plan 

governed by the Employment Retirement Income Security Act of 

1974 (“ERISA”), 29 U.S.C. § 1001 et seq. (2012). On March 10, 

2011, however, PSI stopped contributing to the Fund. The Fund,

in turn, informed PSI that it (and its successor entity, PSI 

Mechanical, Inc., collectively “Defendants”) owed “withdrawal 

liability” pursuant to 29 U.S.C. § 1381. When Defendants failed 

to pay the sum owed, the Fund filed suit. 

Defendants moved to dismiss the action on the ground that 

the district court did not have personal jurisdiction over them. 

In the alternative, they sought a change in venue. The district 

court denied both motions. On the merits, Defendants claimed 

that PSI never agreed to be bound by an existing collective 

bargaining agreement requiring participating employers to make 

contributions to the Fund. The district court disagreed, and 

granted the Fund’s motion for summary judgment. Because we find 

that (1) the district court had personal and subject matter

jurisdiction, (2) venue was proper in Virginia, and (3) PSI 

bound itself to make contributions to the Fund, we affirm.
3

I.

A.

We begin by briefly setting out the relevant statutory 

framework. Congress enacted ERISA to promote the “soundness and 

stability of [employee benefit] plans” in private industry. 29 

U.S.C. § 1001(a). Specifically, ERISA protects “the interests 

of employees and their beneficiaries” by establishing “minimum 

standards . . . assuring the equitable character of such plans 

and their financial soundness.” Id. To further that end, 

Congress in 1980 passed the Multiemployer Pension Plan 

Amendments Act (the “MPPAA”). In part, the MPPAA

requires that an employer withdrawing from a 

multiemployer pension plan pay a fixed and certain 

debt to the pension plan. This withdrawal liability 

is the employer’s proportionate share of the plan’s 

“unfunded vested benefits,” calculated as the 

difference between the present value of vested 

benefits and the current value of the plan’s assets. 

Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 

725 (1984) (citing 29 U.S.C. §§ 1381, 1391). The purpose of 

assessing withdrawal liability is “to assign to the withdrawing 

employer a portion of the plan’s unfunded obligations in rough 

proportion to that employer’s relative participation in the plan 

over the last 5 to 10 years.” Borden, Inc. v. Bakery & 

Confectionary Union & Indus. Int’l Pension, 974 F.2d 528, 530 

(4th Cir. 1992).
4

An employer owes withdrawal liability when it makes a 

complete or partial withdrawal from a pension plan. 29 U.S.C. 

§ 1381(a). In the building and construction industry, a 

complete withdrawal occurs when: (1) “an employer ceases to have 

an obligation to contribute under the plan, and” (2) the 

employer “continues to perform work in the jurisdiction of the 

collective bargaining agreement of the type for which 

contributions were previously required.” 29 U.S.C. 

§ 1383(b)(2). ERISA treats all trades or businesses that are 

under common control as a single employer. 29 U.S.C. §

1301(b)(1).1

An employer who disputes an assessment of withdrawal 

liability may file an objection with the plan sponsor. 29 

U.S.C. § 1399(b)(2)(A). “After a reasonable review of any 

matter raised,” the plan sponsor must notify the employer of (1) 

its decision, (2) the basis for its decision, and (3) “the 

reason for any change in the determination of the employer’s 

 1 The ERISA regulations define common control by reference 

to the Treasury regulations prescribed under 26 U.S.C. § 414(c). 

29 C.F.R. § 4001.3. According to those regulations, one 

instance where two or more businesses are under common control 

is where the same five or fewer persons own a controlling 

interest in each corporation and, “taking into account the 

ownership of each such person only to the extent such ownership 

is identical with respect to each such [corporation], such 

persons” own more than 50 percent of the total shares of each 

corporation. 26 C.F.R. § 1.414(c)-2(c). 
5

liability or schedule of liability payments.” Id.

§ 1399(b)(2)(B).

An employer dissatisfied with the plan sponsor’s response

must demand arbitration within a 60-day period after the earlier 

of the date of the plan sponsor’s notification that it has 

rejected the employer’s request for review, or 120 days after 

the employer’s request for review. 29 U.S.C. § 1401(a). 

“[U]nlike the Federal Arbitration Act, the MPPAA treats an award 

issuing from such a § 1401 arbitration like an agency 

determination--the arbitrator decides the issues in the first 

instance but then the decision is subject to judicial 

review.” Bd. of Trs., Sheet Metal Workers’ Nat’l Pension Fund 

v. BES Servs., Inc., 469 F.3d 369, 375 (4th Cir. 2006).

If, however, the employer does not pursue arbitration, the 

amount assessed by the plan sponsor as withdrawal liability 

“shall be due and owing on the schedule set forth by the plan

sponsor,” which may then “bring an action in a State or Federal 

court of competent jurisdiction for collection.” 29 U.S.C.

§ 1401(b)(1). In such a circumstance, an employer is deemed to 

have waived review of all issues concerning the determination of 

withdrawal liability. BES Servs., 469 F.3d at 375. 

B.

The Fund is a multiemployer pension benefit plan maintained 

pursuant to a collective bargaining agreement between the 
6

Associated Plumbing, Heating and Cooling Contractors of 

Jefferson County, Alabama (the “Multiemployer Association”) and 

affiliated local unions of the United Association of Journeymen 

and Apprentices of the Plumbing and Pipefitting Industry of the 

United States and Canada (the “Union”). Defendants are Alabama 

corporations engaged as plumbing and pipefitting contractors. 

On April 8, 1998, Kenneth Julian--PSI’s sole shareholder--

agreed in writing (on behalf of PSI) “to be bound by provisions 

of the current labor Agreement executed and presently existing 

between” the Multiemployer Association and the Union. J.A. 448.2 

PSI further agreed to “make contributions to the . . . Plumbers 

and Pipefitters National Pension Fund . . . . as provided for by 

the [labor] Agreements now existing and as hereafter.” Id. 

The collective bargaining agreement then in effect, as well 

as all successor agreements, required participating employers to 

make contributions to the Fund for each hour worked by their

employees. PSI began making contributions to the Fund in 1998,

and continued to do so until March 10, 2011. On that date, PSI

(through Julian) wrote to the Union stating that it wished “to 

abolish its working relationship with” the Union. J.A. 139. 

Under the terms of the collective bargaining agreement, PSI’s 

obligation to contribute to the Fund ended sixty days after 

 2 We refer to this writing as the “Letter of Assent.”
7

tendering the March 10 letter. PSI went out of business 

sometime in the summer of 2011. Shortly before then, PSI 

Mechanical filed articles of incorporation. 

Well over a year after PSI sent the March 10 letter, the 

Fund notified Julian that because PSI was “continuing to perform 

work of the type for which it was previously obligated to make 

contributions to the Fund” in the jurisdiction of the collective 

bargaining agreement, PSI had incurred withdrawal liability of 

$188,685. J.A. 345. Specifically, the Fund suspected that PSI 

and PSI Mechanical were trades or businesses under common 

control. In fact, Julian was the sole shareholder of both 

corporations.

The Fund gave PSI the option to pay the amount owed in one 

lump sum or in monthly installments. PSI objected and sought 

review of the imposition of withdrawal liability. The Fund in 

turn asked PSI to respond to a questionnaire so as to better 

enable the Fund to assess PSI’s objection. PSI, however, 

refused to answer any questions related to PSI Mechanical, 

stating that it was “not privy to information necessary to 

answer” them. J.A. 368.

In the meantime, PSI was still required to make monthly 

payments on its withdrawal liability. See 29 U.S.C. 

§ 1399(c)(2). Yet, PSI did not comply with its obligation. The 

Fund sent two late-payment notices to PSI and received no 
8

response to either. The Fund subsequently rejected PSI’s 

objection to the imposition of withdrawal liability, declared 

PSI in default, and demanded payment of the entire sum of its

withdrawal liability plus accrued interest. Defendants made no 

payments, nor did they demand arbitration. 

C. 

The Fund filed suit in the United States District Court for 

the Eastern District of Virginia against both PSI and PSI 

Mechanical, seeking to collect PSI’s unpaid monthly withdrawal 

liability payments, along with interest, liquidated damages, and 

attorney’s fees and costs.3 It also sought to compel Defendants 

to make future monthly payments when due. The Fund later 

amended its complaint to ask for the entire outstanding 

withdrawal liability.4

Defendants moved to dismiss the lawsuit for lack of 

personal jurisdiction, or alternatively, on forum non conveniens

grounds. They argued that because PSI and PSI Mechanical are 

 3 ERISA provides that a plan suing to recover withdrawal 

liability may also recover interest, liquidated damages, and

attorney’s fees and costs. 29 U.S.C. § 1132(g)(2). Pursuant to 

the terms of the Fund’s Plan document, liquidated damages are 

equal to “the greater of: (i) the amount of interest charged on 

the unpaid balance, or (ii) 20 percent of the unpaid amount 

awarded.” J.A. 343. 

4 The amended complaint also alleges that the Fund had 

reviewed and rejected in writing PSI’s arguments raised in its

request for review and that PSI never demanded arbitration. 
9

Alabama corporations engaged in business exclusively in Alabama, 

they do not have sufficient minimum contacts with Virginia for 

the exercise of personal jurisdiction. In the alternative, 

Defendants urged that the lawsuit be dismissed because there is

an adequate alternative forum in the Northern District of 

Alabama.

The district court denied the motions. The court found it 

“pelucidly [sic] clear that there is personal jurisdiction.” 

J.A. 316. It noted that ERISA provides for nationwide service 

of process and permits lawsuits to be brought in the district 

where the plan is administered. As a result, the court’s 

exercise of personal jurisdiction over Defendants comported with 

Fifth Amendment due process principles.

The district court construed Defendants’ forum non 

conveniens claim as one seeking a change of venue under 28 

U.S.C. § 1404(a). It declined to grant relief, however, because 

the Eastern District of Virginia was the Plaintiff’s forum of 

choice and only moderately inconvenient for Defendants. The 

court further observed that witnesses were unlikely to be 

needed, and that the interest of justice weighed in favor of 

keeping the case in Virginia. 

The Fund then moved for summary judgment on the sole count 

of its amended complaint, which the district court granted.

Thereafter, the Fund sought liquidated damages, interest, and
10

attorney’s fees and costs. Defendants opposed the request, 

claiming that the contract that the Fund was seeking to enforce 

was not sufficiently definite. To assess this claim, the 

district court reviewed the collective bargaining agreement in 

effect when Julian signed the Letter of Assent, as well as a 

successor agreement.

The district court held that the collective bargaining 

agreement was “neither fatally vague nor unclear; the Agreement 

makes clear that a breaching party will be liable for unpaid 

contributions upon complete withdrawal, interest on those unpaid 

contributions, liquidated damages, and attorney’s fees and

costs.” J.A. 600. The court found immaterial and unpersuasive 

Defendants’ allegation that “Julian never read nor understood 

the Agreement” because he nevertheless “agreed to be bound” by 

it. Id. The court entered judgment in favor of the Fund in the 

amount of $247,013.21. 

From the district court’s judgment, Defendants appeal.

II.

We first consider the district court’s order denying

Defendants’ motions to dismiss for lack of personal jurisdiction 

and to transfer venue. We review the district court’s decision 

as to personal jurisdiction de novo, although the underlying 

factual findings are reviewed for clear error. Carefirst of 
11

Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 

(4th Cir. 2003). We review decisions on whether to transfer 

venue under 28 U.S.C. § 1404 for abuse of discretion. Brock v. 

Entre Computer Ctrs., Inc., 933 F.2d 1253, 1257 (4th Cir. 1991). 

Defendants say that the district court lacked personal 

jurisdiction over them because they are Alabama corporations 

that do business exclusively in Alabama and have no contacts 

with Virginia. The district court correctly rejected this 

contention.

As the district court noted, any action brought under ERISA 

“may be brought in the district where the plan is administered.” 

29 U.S.C. § 1132(e)(2). Furthermore, ERISA provides for 

nationwide service of process. Id. The Fund is administered in 

Alexandria, Virginia, which is within the Eastern District of 

Virginia, and Defendants were properly served. Where a 

defendant has been validly served pursuant to a federal 

statute’s nationwide service of process provision, a district 

court has personal jurisdiction over the defendant so long as 

jurisdiction comports with the Fifth Amendment. ESAB Grp., Inc. 

v. Centricut, Inc., 126 F.3d 617, 626-27 (4th Cir. 1997). 

To make out a Fifth Amendment challenge to personal 

jurisdiction, Defendants had to show that “the district court’s 

assertion of personal jurisdiction over [them] would result in 

‘such extreme inconvenience or unfairness as would outweigh the 
12

congressionally articulated policy’ evidenced by a nationwide 

service of process provision.” Denny’s, Inc. v. Cake, 364 F.3d 

521, 524 n.2 (4th Cir. 2004) (quoting ESAB, 126 F.3d at 627). 

Normally, when a defendant is a United States resident, it is 

“highly unusual . . . that inconvenience will rise to a level of 

constitutional concern.” ESAB, 126 F.3d at 627 (internal 

quotation marks omitted). 

Defendants have not satisfied this heavy burden. Indeed, 

in their brief, Defendants fail to apply the correct rule of 

law, citing the “minimum contacts” standard we consider when 

assessing whether personal jurisdiction is consistent with the 

Due Process Clause of the Fourteenth Amendment. See Int’l Shoe 

Co. v. Washington, 326 U.S. 310, 316 (1945); ALS Scan, Inc. v. 

Digital Serv. Consultants, Inc., 293 F.3d 707, 711 (4th Cir. 

2002). That standard, however, is not relevant when the basis 

for jurisdiction is found in a federal statute containing a 

nationwide service of process provision. Given Defendants’ 

failure to show that the district court’s exercise of personal 

jurisdiction raises a Fifth Amendment concern, they “must look 

primarily to federal venue requirements for protection from 

onerous litigation.” ESAB, 126 F.3d at 627 (quoting Hogue v. 

Milodon Eng’g, Inc., 736 F.2d 989, 991 (4th Cir. 1984)). 

On that score, Defendants contend that because they are 

Alabama corporations with no business ties to Virginia, the 
13

district court was obligated to transfer this case to the 

Northern District of Alabama.5 We do not agree.

Under 28 U.S.C. § 1404(a), “[f]or the convenience of 

parties and witnesses, in the interest of justice, a district 

court may transfer any civil action to any other district or 

division where it might have been brought or to any district or 

division to which all parties have consented.” District courts 

within this circuit consider four factors when deciding whether 

to transfer venue: (1) the weight accorded to plaintiff’s choice 

of venue; (2) witness convenience and access; (3) convenience of 

the parties; and (4) the interest of justice. E.g., Lynch v. 

Vanderhoef Builders, 237 F. Supp. 2d 615, 617 (D. Md. 2002); Bd. 

of Trs., Sheet Metal Workers Nat’l Fund v. Baylor Heating & Air 

Conditioning, Inc., 702 F. Supp. 1253, 1255-56 (E.D. Va. 1988) 

(citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947)). 

As a general rule, a plaintiff’s “choice of venue is 

entitled to substantial weight in determining whether transfer 

is appropriate.” Bd. of Trs. v. Sullivant Ave. Props., LLC, 508 

F. Supp. 2d 473, 477 (E.D. Va. 2007). Moreover, Congress 

intended in ERISA cases to give a “plaintiff’s choice of forum 

somewhat greater weight than would typically be the case,” as 

 5 Like the district court, we will treat Defendants’ motion 

to dismiss for forum non conveniens as a request for transfer of 

venue under 28 U.S.C. § 1404. 
14

evidenced by ERISA’s “liberal venue provision.” Cross v. Fleet 

Reserve Ass’n Pension Plan, 383 F. Supp. 2d 852, 856-57 (D. Md. 

2005) (internal quotation marks omitted). Given the substantial 

weight accorded to this first factor, Defendants need to make a 

compelling showing on the remaining factors to persuade us that 

the district court abused its discretion by refusing to transfer 

venue. This they fail to do. 

The salience of the witness convenience and access factor 

is obviated by PSI’s failure to demand arbitration. By failing 

to arbitrate, PSI waived its right to raise any defenses to the 

assessment of withdrawal liability. Thus, the district court 

properly concluded that there would be little, if any, need for 

witnesses.

As to the third factor, Defendants have not persuaded us 

that defending this case in Virginia was so inconvenient to them

as to warrant transfer. On this point, Defendants emphasize 

that Alabama is “where all events relative to the litigation 

took place.” Appellant’s Br. at 35. However, it is not unusual 

for some or all of the relevant acts in an ERISA lawsuit to have 

taken place outside the district where the plan is administered. 

Congress nonetheless saw fit to lay venue there, and we see no 

reason why that legislative intent should yield in this case. 

Defendants also make no argument as to why the interest of 

justice favors hearing this case in Alabama. Consequently, we 
15

hold that the district court did not abuse its discretion in 

refusing to transfer venue.

III.

Defendants also urge that the district court lacked subject 

matter jurisdiction over the Fund’s claim. Their first 

contention--that there was no enforceable contract requiring PSI 

to make contributions to the Fund--is a merits argument that we 

address later. Here, we consider only Defendants’ claim that 

the Fund’s action for withdrawal liability is actually a claim 

for postcontract contributions and therefore arises under § 8 of 

the National Labor Relations Act, 29 U.S.C. § 158(a), rather 

than ERISA. In essence, Defendants argue that the district 

court did not have subject matter jurisdiction because the 

Fund’s claim involves an unfair labor practice that should have 

been brought before the National Labor Relations Board. That is 

not correct. 

Under ERISA, an employer that is contractually obligated to 

make contributions to a retirement fund must do so in accordance 

with the operative collective bargaining agreement. 29 U.S.C. 

§ 1145. Section 1145 thereby creates a federal right of action 

allowing a multiemployer pension plan to collect delinquent 

contributions. Bakery & Confectionary Union and Indus. Int’l 
16

Pension Fund v. Ralph’s Grocery Co., 118 F.3d 1018, 1020-21 (4th 

Cir. 1997).

An action to compel an employer to pay overdue withdrawal 

liability is treated the same as an action to collect delinquent 

contributions. 29 U.S.C. § 1451(b). And federal district 

courts have jurisdiction to hear actions compelling an employer 

to pay withdrawal liability. Id. § 1451(c). This being an 

action to collect overdue withdrawal liability payments, the 

district court plainly had subject matter jurisdiction.

In support of its contention otherwise, Defendants draw our 

attention to Laborers Health & Welfare Trust Fund for Northern

California v. Advanced Lightweight Concrete Co., 484 U.S. 539 

(1988). There, the Supreme Court held that the right of action 

created by § 1145 “is limited to the collection of ‘promised 

contributions’ and does not confer jurisdiction on district 

courts to determine whether an employer’s unilateral decision to 

refuse to make postcontract contributions constitutes a 

violation of the [National Labor Relations Act].” Id. at 549. 

However, an action to collect withdrawal liability is far 

different from one seeking to require an employer “to make 

postcontract contributions while negotiations for a new contract 

are being conducted.” Id. at 548. As we have explained, 

§ 1451(b)--in conjunction with § 1145--expressly creates a right 

of action to collect overdue withdrawal liability. We therefore 
17

reject Defendants’ contention that the district court lacked 

subject matter jurisdiction.

IV.

A.

We turn now to the district court’s grant of summary 

judgment to the Fund. As a threshold matter, we address 

Defendants’ claim that the district court “flouted the wellknown and time-tested summary judgment standard.” Appellant’s 

Br. at 46 (quoting Greater Balt. Ctr. for Pregnancy Concerns, 

Inc. v. Mayor & City Council of Balt., 721 F.3d 264, 283 (4th 

Cir. 2013)). Essentially, Defendants say that the Fund failed 

to produce evidence supporting its motion for summary judgment. 

Defendants are wrong. 

A party moving for summary judgment “always bears the 

initial responsibility of informing the district court of the 

basis for its motion, and identifying those portions of the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits . . . which it 

believes demonstrates the absence of a genuine issue of material 

fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)

(internal quotation marks omitted). In this case, the Fund 

supported its motion with an affidavit from the administrator of 

the pension fund, correspondence between the Fund and PSI 
18

documenting the assessment of withdrawal liability and PSI’s 

request for review, PSI’s admissions, and a number of other 

documents. We find this evidence more than sufficient to shift 

the burden to Defendants to “come forward with specific facts 

showing that there is a genuine issue for trial.” Matsushita 

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)

(internal quotation marks omitted). 

Defendants also argue that the district court erred in 

granting summary judgment on the basis of the Fund’s original 

complaint, rather than the amended version. This error, 

however, furnishes no ground for relief. In the first place, 

the factual allegations in the two complaints are substantially 

similar. Moreover, we review summary judgment orders de novo, 

based on our independent review of the entire record. See

Turner v. Dammon, 848 F.2d 440, 444 (4th Cir. 1988), abrogated 

on other grounds by Johnson v. Jones, 515 U.S. 304 (1995). The 

amended complaint is part of the record, and thus the district 

court’s error poses no obstacle to our review of its decision.

B.

It is undisputed that neither PSI nor PSI Mechanical ever 

demanded arbitration. While this normally means judicial review 

of all issues relating to the imposition of withdrawal liability 

is waived, we have recognized a limited exception to ERISA’s 

arbitration requirement where a party asserts that it is not an 
19

“employer” subject to the arbitration requirement. Teamsters 

Joint Council No. 83 v. Centra, Inc., 947 F.2d 115, 122 (4th 

Cir. 1991); see also Flying Tiger Line v. Teamsters Pension 

Trust Fund of Phila., 830 F.2d 1241, 1250 (3d Cir. 1987) 

(holding that the issue of whether an organization is an 

employer for ERISA purposes is one for the court). 

As a result, the sole issue before the district court was 

whether PSI is an employer subject to ERISA’s arbitration 

requirement. We hold that it is. 

ERISA defines an employer as “any person acting directly as 

an employer, or indirectly in the interest of an employer, in 

relation to an employee benefit plan.” 29 U.S.C. § 1002(5). 

Defendants argue that PSI is not an employer because there is no 

valid collective bargaining agreement between PSI and the Fund 

that bound PSI to make contributions. Specifically, Defendants 

say that the Letter of Assent is insufficient to bind PSI to its 

promise to contribute to the Fund in accordance with the 

referenced collective bargaining agreement and its successor 

agreements. As a result, because there is no valid agreement, 

PSI was never acting as an employer “in relation to an employee 

benefit plan.” 

The parties disagree as to what law applies to the 

resolution of this issue. Defendants contend that we should 
20

consult Alabama law for this purpose, while the Fund says we 

should look to federal common law. We agree with the Fund.

We have been clear that “ERISA preempts state law, 

including state common law.” Phx. Mut. Life Ins. Co. v. Adams, 

30 F.3d 554, 563 (4th Cir. 1994). ERISA preemption is construed 

broadly, and displaces any state law that “has a connection with 

or reference to” an employee benefit program. Shaw v. Delta Air 

Lines, Inc., 463 U.S. 85, 97 (1983). Similarly, in the labor 

law context, the Supreme Court has emphasized the importance of 

national uniformity when deciding issues involving the 

“consensual processes that federal labor law is chiefly designed 

to promote--the formation of the collective agreement and the 

private settlement of disputes under it.” DelCostello v. Int’l 

Bhd. of Teamsters, 462 U.S. 151, 162-63 (1983) (emphasis added).

Consulting state law to determine when a collective 

bargaining agreement is formed would undermine uniformity and 

“exert a disruptive influence upon . . . the negotiation . . . 

of collective agreements.” Int’l Union, United Auto., Aerospace 

& Agric. Implement Workers of Am., AFL-CIO v. Hoosier Cardinal 

Corp., 383 U.S. 696, 701-02 (1966). Thus, when determining 

whether an obligation to contribute to an employee benefit plan 

exists, state contract law must give way. 

In the Letter of Assent, PSI agreed to be bound by the 

collective bargaining agreement in effect between the Union and 
21

the Multiemployer Association. It further agreed to contribute 

to the Fund as required by the then-existing collective 

bargaining agreement and any successors. We have previously 

held that an employer can execute a letter of assent allowing “a 

multi-employer bargaining association to represent it in § 8(f) 

negotiations.[6] In such an arrangement, the individual employer 

agrees to be bound by the § 8(f) agreement reached between the 

multi-employer bargaining association and the union.” Indus. 

TurnAround Corp. v. NLRB, 115 F.3d 248, 252 (4th Cir. 1997).

We believe that this principle is equally applicable in the 

present context, and thus hold that the Letter of Assent is 

sufficient to bind PSI to make contributions to the Fund in 

accordance with the terms of the collective bargaining 

agreement. Defendants insist, nonetheless, that the Letter of 

Assent is invalid because it “leaves open the unbridled 

obligation of Defendants to accept future changes to the 

contract.” Appellant’s Br. at 39. The gist of their argument 

is that even if the Letter of Assent is valid as to the 

collective bargaining agreement in effect in 1998 when the 

 6 Under § 8(f) of the National Labor Relations Act, 

“employers or multi-employer associations in the [building and] 

construction industry [may] enter into collective-bargaining 

agreements, commonly called ‘pre-hire agreements,’ with unions 

that have not formally established majority status.” Industrial 

TurnAround, 115 F.3d at 252; see also 29 U.S.C. § 158(f). 
22

Letter was signed, it does not bind them to successor 

agreements. However, in Industrial TurnAround, we approved a 

similar letter of assent that bound the employer to successor 

contracts. 115 F.3d at 252 (“[Employer] executed . . . a letter 

of assent . . . binding [employer] to the then current . . . 

agreement and to all successor agreements.”). We see no reason 

to depart from that holding here. 

Finally, even if the Letter of Assent alone did not bind 

PSI to make future contributions to the Fund, its conduct 

certainly did. While we have not previously addressed this 

issue, today we join several of our sister circuits in holding 

that a collective bargaining agreement can be adopted by conduct 

manifesting an intention to be bound by its terms. Bricklayers 

Local 21 of Ill. Apprenticeship & Training Program v. Banner 

Restoration, Inc., 385 F.3d 761, 766 (7th Cir. 2004); Carpenters 

Amended & Restated Health Benefit Fund v. Holleman Constr. Co., 

751 F.2d 763, 770 (5th Cir. 1985); Trs. of Atl. Iron Workers, 

Local 387 Pension Fund v. S. Stress Wire Corp., 724 F.2d 1458, 

1459-60 (11th Cir. 1983).

The most obvious manifestation of PSI’s intent to be bound, 

of course, was its decision to sign the Letter of Assent. 

However, that it intended to be bound is also made unmistakably 

clear by the fact that PSI made contributions to the Fund in 

accordance with the governing collective bargaining agreements
23

for thirteen years before its complete withdrawal. The district 

court was therefore correct to reject PSI’s belated effort to 

avoid withdrawal liability. 

The record also shows that shortly after PSI went out of 

business, PSI Mechanical was incorporated and began performing 

the same work. Because Julian is the sole shareholder of both 

corporations, ERISA treats them as a single employer. 29 U.S.C. 

§ 1301(b)(1). Consequently, PSI Mechanical’s work in the 

jurisdiction of the type for which contributions were previously 

required is attributed to PSI. This also means that the Fund 

may look to PSI Mechanical to satisfy the withdrawal liability 

owed by PSI. 

In sum, given the existence of a valid contract requiring 

PSI to contribute to the Fund, PSI is an employer under ERISA. 

And because PSI failed to timely demand arbitration, all the 

Fund had to prove to win summary judgment was that it gave PSI 

proper notice of the assessed withdrawal liability. Chi. Truck 

Drivers v. El Paso Co., 525 F.3d 591, 597 (7th Cir. 2008). The 

record shows that the Fund did this. The district court 

therefore correctly granted the Fund’s motion for summary 

judgment, and its judgment is 

AFFIRMED.