                                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.
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.




                                         2
                                              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).



                                               3
      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



      1The 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).



                                                4
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

                                                    5
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.”



                                      6
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

                                                   7
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.



                                            8
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

                                                 9
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

                                         10
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

                                               11
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

                                            12
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

      5Like 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.



                                               13
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

                                    14
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



                                            15
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

                                               16
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 well-

known 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

                                                17
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

                                            18
“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



                                                19
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

                                          20
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).



                                             21
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

                                             22
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.




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