The opinion of the court was delivered by: OBERDORFER
Plaintiffs are the Trustees of the United Mine Workers of America 1950 and 1974 Pension Plans. They bring this action under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1381, as amended by the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), 29 U.S.C. §§ 1381-1461 (1982), against B.M.C. Coal Company, and its president, Mitchie Coleman, to collect withdrawal liability payments. According to the plaintiffs, defendants incurred withdrawal liability under ERISA in 1981 when B.M.C. failed to sign the 1981 Bituminous Coal Wage Agreement. The Plan notified B.M.C. of its withdrawal liability in March of 1982. In June of 1982, defendants requested informal review of the withdrawal liability determination pursuant to Section 4219(b)(2)(A) of ERISA, 29 U.S.C. § 1399(b)(2)(A). The Trustees of the Plan responded that they would not change the withdrawal liability, but would alter the schedule of payments.
The Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), Pub. L. 96-364, 94 Stat. 1208 (1980), added subtitle E to Title IV of ERISA. The MPPAA establishes withdrawal liability for employers that cease participation in a multiemployer pension plan, as well as means for computing that liability. Complete withdrawal from a multiemployer pension plan occurs when an employer either permanently ceases to have an obligation to contribute under the plan or permanently ceases all operations covered under the plan. 29 U.S.C. § 1383. At the time that an employer withdraws from a plan, the plan is required by the MPPAA to determine the amount of the employer's withdrawal liability, and notify the employer of the amount. 29 U.S.C. § 1382.
ERISA provides for informal review of the withdrawal liability amount within 90 days of notice of, and demand for, the amount. 29 U.S.C. § 1399(b)(2). If the informal dispute resolution is unsuccessful, ERISA provides that "any dispute between an employer and the plan sponsor of a multiemployer plan concerning a determination made under sections 4201 through 4219 [ 29 U.S.C. §§ 1381-1399] shall be resolved through arbitration." 29 U.S.C. § 1401(a)(1). After completion of the arbitration proceedings and entry of the award, either party may bring an action in federal district court to enforce, vacate or modify the arbitrator's award. 29 U.S.C. § 1401(b)(2). It is undisputed that defendants did not initiate arbitration within the time specified under ERISA. Defendants' Mem. at 8 n.5.
Plaintiffs argue that failure to initiate arbitration precludes an employer from contesting either the fact or the amount of its withdrawal liability, citing Combs v. Western Coal Corp., 611 F. Supp. 917, 920-22 (D.D.C. 1985). Defendants argue that this Court may consider their challenge to plaintiffs' determination of withdrawal liability despite their failure to seek arbitration. Plaintiffs cite I.A.M. National Pension Fund Benefit Plan C v. Stockton Tri Industries, 234 U.S. App. D.C. 105, 727 F.2d 1204 (D.C. Cir. 1984). But, this Court has specifically recognized that Stockton creates only a narrow exception to the general requirement that parties seek arbitration under ERISA. The Grand Union Company v. The Food Employers Labor Relations Association and United Food & Commercial Workers Pension Fund, No. 85-1551, slip op. at 2-8 (D.D.C. Oct. 25, 1985). Here, the issues of whether the employer has completely withdrawn and if so, the amount of the liability, are quintessentially within the expertise of an arbitrator skilled in pension matters. Consequently, the narrow exception established by Stockton does not apply. Defendants' failure to seek arbitration now precludes them from seeking a determination by this Court that they have not completely withdrawn from the Plan under 29 U.S.C. § 1383(a).
Defendants primarily contest plaintiffs' attempt to hold defendant Mitchie Coleman personally liable for the withdrawal liability of B.M.C. Plaintiffs argue that Coleman fits the definition of "employer" set out in Title I of ERISA and thus should be personally liable in this action under Title IV. Title I provides that:
the term "employer" means 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). But, the term "person" as defined in ERISA, does not include a corporate officer. The definition includes "an individual, partnership, joint venture, corporation, mutual company, joint-stock company, trust, estate, unincorporated organization, association, or employee organization." 29 U.S.C. § 1002(9). Plaintiffs recognize this, and recognize that the definition of "employer" in Title I contains the preface "For purposes of this title." They nevertheless argue that the definition of "employer" in Title I should apply under Title IV. They argue that because the definition of "employer" in Title I is the same as that found in section 3(d) of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 203(d), it should by analogy apply under ERISA. They rely on Donovan v. Agnew, 712 F.2d 1509 (1st Cir. 1983) where the court used an "economic reality" test to impose personal liability for unpaid wages under the FLSA. Plaintiffs argue that defendant Coleman, as 50% stockholder and company director, exercised "final operational control" over B.M.C. and thus acted "directly [or] indirectly in the interest of an employer" and should be personally liable for withdrawal payments under ERISA.
This Court has specifically recognized that language by Congress limiting certain other language to a particular title or subtitle of ERISA is significant. The Grand Union Company, supra, slip op. at 10. The same is true in this case, and the Court finds the analysis of Judge Greene in Combs v. Sun-Up Coal Co., 634 F. Supp. 13 (D.D.C. 1985) persuasive. The court in Sun-Up Coal Co. examined the legislative history of ERISA and determined that the definition of "employer" in Title I of ERISA did not apply to Title IV. The court noted that different policy concerns and different statutory language apply to the two different titles of ERISA. It also quoted a 1982 opinion letter drafted by the Pension Benefit Guarantee Corporation (PBGC), the corporation created under ERISA to administer Title IV. In that letter the PBGC stated that:
ERISA has no special rules regarding shareholders or officer liability . . . [Rather], this issue is usually determined by state law which generally provides that shareholders are not liable for the debts of a corporation. You should, however, be aware that the ...