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July 9, 1985

NEW YORK STATE TEAMSTERS CONFERENCE PENSION & RETIREMENT FUND, by its trustees, T. Edward Nolan, Curtis Gundersen, Richard Muller, Rocco F. DePerno, Paul E. Bush, and Jack Canzoneri, in their representative capacities, Plaintiff, v ST. LAWRENCE TRANSIT MIX CORPORATION, Defendant.

The opinion of the court was delivered by: MCCURN



 Presently before the court are (1) defendant's motion to stay this action and to compel arbitration and (2) plaintiff's cross motion for summary judgment or, in the alternative, for an order compelling defendant to pay its past due withdrawal liability payments and to begin making its current liability payments. For the reasons discussed below, the court denies defendant's motion and grants plaintiff summary judgment.


 This is an action under the Multiemployer Pension Plan Amendments Act (MPPAA) amending the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. Plaintiff the New York State Teamsters Conference Pension and Retirement Fund (Fund) is the sponsor of an employee benefit and multiemployer pension plan. Under the plan employers contribute to the pension fund on behalf of their employees pursuant to collective bargaining agreements with local Teamsters' unions.

 Defendant St. Lawrence Transit Mix Corp. made contributions to the Fund until March 1983 when the company was purchased by Torrington Industries, now Heritage Homes, Inc. On February 6, 1984, plaintiff notified defendant of its withdrawal liability pursuant to the MPPAA.According to the Fund, defendant owes $35,296.00 which was to be paid in $2,480.32 monthly installments. Defendant's attorney requested the Fund's calculations, which the fund provided. No withdrawal liability payments have been made, and defendant neither requested the Fund to review defendant's liability nor demanded arbitration. By letter dated May 2, 1984, the Fund notified defendant that it was in default; its entire liability was due; and the Fund was commencing this action to recover defendant's withdrawal liability payments. Plaintiff filed the present complaint on September 20, 1984.

 Defendant now moves to stay the present action and to compel arbitration under 29 U.S.C. § 1401(a). St. Lawrence Transit Mix Corp. contends that arbitration of its withdrawal liability is mandatory under the statute. However, it refuses to arbitrate before the new York State Joint Grievance Board, which is the arbitrator that the Fund uses. According to defendant, the New York State Joint Grievance Board is biased because its members are employers that are required to contribute to multiemployer funds and union representatives. Defendant seeks arbitration of its withdrawal liability under the Multiemployer Pension Plan Arbitration Rules issued by the International Foundation of Employee Benefit Plans and the American Arbitration Association.

 Plaintiff cross moves for summary judgment. The Fund argues that defendant never requested arbitration and the time to do so has run.Therefore, defendant's withdrawal liability has become fixed, and defendant has waived the affirmative defense it asserts under the MPPAA's "Sale of Assets" provision, 29 U.S.C. § 1384. According to plaintiff, no questions of fact are in dispute, and it is entitled to summary judgment against defendant for $35,296.00, interest, liquidated damages, costs, and attorney fees. In the alternative, plaintiff requests an order compelling defendant to pay its past due liability payments and to commence making its current monthly payments.


 ERISA requires an employer that withdraws from a multiemployer pension plan to pay a portion of the plan's unfunded, accrued liability. 29 U.S.C. § 1381. The pension plan sponsor calculates the amount of the employer's withdrawal liability in the first instance. 29 U.S.C. § 1382.

 29 U.S.C. § 1401 provides that "(a)ny dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 4201 through 4219 (including withdrawal liability and "Sale of Assets") shall be resolved through arbitration." Section 1401 further provides that either party "may initiate" arbitration within 60 days after the earlier of (A) the date that the Fund notifies the employer of the fund's final determination or (B) 120 days after the employer has requested the Fund to review the employer's withdrawal liability. 29 U.S.C. § 1401(a)(1)(A). *fn1"

 In the present case defendant never asked the Fund to review its determination of defendant's withdrawal liability or demanded arbitration. The time in which defendant could initiate arbitration has long since run. At the very least, defendant should have notified plaintiff that it intended to arbitrate its liability. If defendant did not wish to use the arbitrator that plaintiff wanted, defendant should have sought the court's assistance.

 29 U.S.C. § 1401(b)(1) provides:

 Alternative collection proceedings; civil action subsequent to arbitration award; conduct of arbitration proceedings. (1) If no arbitration proceeding has been initiated pursuant to subsection (a), the amounts demanded by the plan sponsor under section 4219(b)(1) [29 U.S.C. § 1399(b)(1)] shall be due and owing on the schedule set forth by the plan sponsor. The plan sponsor may bring an action in a State or Federal court of competent jurisdiction for collection. By failing to timely request arbitration, defendant's withdrawal liability assessed by the Fund has become fixed. See T.I.M.E.-DC Inc. v. Management-Labor Welfare & Pension Funds, 756 F.2d 939, 944-45 (2d Cir. 1985) (holding that "if an employer disputes the amount of its withdrawal liability, then it must proceed to arbitration."); Sova Outerwear Corp. v. Trustees of the Amalgamated Cotton Garment and Allied Industries Fund, 578 F. Supp. 1126, 1127 (S.D.N.Y. 1984) (stating, "Furthermore, because Sova has not objected to the amount of the assessment, or requested arbitration within the prescribed period, see 29 U.S.C. § 1399(b)(2)(A) (within 90 days of trustees' demand), the amount of liability becomes fixed."). Because factual questions under 29 U.S.C. § 1384 are also subject to arbitration, the defendant here has waived any defenses it may have had under the "Sale of Assets" provision. 29 U.S.C. § 1401(a)(1); Trustees of Western Teamsters Pension Fund v. Arizona-Pacific Tank Lines, 4 E.B.C. 2355 (N.D. Cal. 1983). Therefore, no material issues of fact exist in the present action.

 Defendant, however, seeks to negate its failure to timely seek arbitration and the concomitant fixing of its liability by challenging the constitutionality and statutory construction of 29 U.S.C. §§ 1401 and 1384. The Second Circuit has held that questions of statutory construction and constitutionality are not subject to mandatory arbitration under ...

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