American Federation of Musicians v. Neshoma 1 In the

19-1093-cv
American Federation of Musicians v. Neshoma
1
In the 2
United States Court of Appeals 3
For the Second Circuit 4
________ 5
6
A UGUST TERM , 2019 7
8
A RGUED: FEBRUARY 13, 2020 9
D ECIDED: S EPTEMBER 3, 2020 10
11
No. 19-1093-cv 12
13
AMERICAN FEDERATION OF MUSICIANS AND EMPLOYERS’ 14
PENSION FUND, BOARD OF TRUSTEES OF THE AMERICAN 15
FEDERATION OF MUSICIANS AND EMPLOYERS’ PENSION 16
FUND, 17
Plaintiffs-Appellees, 18
V. 19
NESHOMA ORCHESTRA AND SINGERS, INC.. 20
Defendant-Third-Party Plaintiff-Appellant, 21
V. 22
ASSOCIATED MUSICIANS OF GREATER NEW YORK LOCAL 802, 23
AFM, AFL-CIO, 24
Third-Party Defendant-Appellee.1 25
26
________ 27
28
Appeal from the United States District Court 29
for the Southern District of New York. 30
31
________ 32
33
1 The Clerk of Court is directed to amend the caption as shown above.

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2 No. 19-1093-cv
1
2
Before: W INTER , WALKER , and C ARNEY , Circuit Judges. 3
________ 4
5
This appeal presents the questions of (1) whether arbitration 6
was properly initiated by defendant-appellant Neshoma Orchestra 7
and Singers, Inc. (Neshoma) in response to a claim against it for $1.1 8
million in withdrawal liability by the American Federation of 9
Musicians and Employers’ Pension Fund (Fund) and (2) whether 10
Neshoma’s third-party claim against its union was preempted by the 11
National Labor Relations Act (NLRA). 12
Neshoma contends that the district court erred in granting 13
summary judgment against it. Neshoma maintains (1) that it had 14
timely demanded arbitration pursuant to 29 U.S.C. § 1401(a)(1) and 15
(2) that any failure to timely demand was excused because the 16
arbitration rules of the American Arbitration Association (AAA) 17
imposed preconditions to arbitration that were not fair or equitable. 18
We conclude that the parties were bound by the Fund rules, which 19
required Neshoma to initiate arbitration with the AAA by filing a 20
formal request before the statutory deadline, and Neshoma failed to 21
do so. 22
We also conclude that the district court did not err in 23
dismissing Neshoma’s third-party complaint against the Union on 24

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3 No. 19-1093-cv
the pleadings as preempted by the NLRA. Accordingly, we affirm 1
the district court’s judgment. 2
________ 3
4
Patricia McConnell (L EVY RATNER , P.C.), New 5
York, NY, for Plaintiffs-Appellees. 6
R AAB , S TURM & G ANCHROW , LLP (Ira A. Sturm, on 7
the brief), Fort Lee, NJ, for Defendant-Third-Party 8
Plaintiff-Appellant. 9
L AW O FFICE OF H ARVEY S. MARS , LLC (Harvey 10
Steven Mars, on the brief), New York, NY, for Third- 11
Party Defendant-Appellee. 12
________ 13
14
PER C URIAM : 15
This appeal presents the questions of (1) whether arbitration 16
was properly initiated by defendant-appellant Neshoma Orchestra 17
and Singers, Inc. (Neshoma) in response to this suit to recover $1.1 18
million in withdrawal liability by the American Federation of 19
Musicians and Employers’ Pension Fund (Fund) and (2) whether 20
Neshoma’s third-party claim against its union was preempted by the 21
National Labor Relations Act (NLRA). 22
Neshoma contends that the district court erred in granting 23
summary judgment against it. Neshoma maintains (1) that it had 24
timely demanded arbitration pursuant to 29 U.S.C. § 1401(a)(1) and 25
(2) that any failure to timely demand was excused because the 26

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4 No. 19-1093-cv
arbitration rules of the American Arbitration Association (AAA) 1
imposed preconditions to arbitration that were not fair or equitable. 2
We conclude that the parties were bound by the Fund rules, which 3
required Neshoma to initiate arbitration with the AAA by filing a 4
formal request before the statutory deadline, and Neshoma failed to 5
do so. 6
We also conclude that the district court did not err in 7
dismissing Neshoma’s third-party complaint against the Union on 8
the pleadings as preempted by the NLRA. Accordingly, we affirm 9
the district court’s judgment. 10
BACKGROUND 11
The Fund is a multiemployer pension benefit plan under the 12
Employee Retirement Income Security Act (ERISA). Neshoma, a 13
band represented by Associated Musicians of Greater New York 14
Local 802, AFM, AFL-CIO (Union), made pension contributions to the 15
Fund on behalf of Neshoma’s employees who were Union members. 16
The parties negotiated a collective bargaining agreement (CBA) 17
providing that “Neshoma agree[d] to be bound by the Agreement and 18
Declaration of Trust . . . which is incorporated by reference into this 19
Agreement.”2 The Agreement and Declaration of Trust, which 20
2 Neshoma Orchestra and Singers, Inc. v. Am. Fed’n of Musicians and
Employers’ Pension Fund, No. 17-cv-02640-JGK (S.D.N.Y. Dec. 8, 2017), ECF No. 38-
5, at 6 art. V § 4.

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5 No. 19-1093-cv
governed the Fund, in turn, granted “[t]he Trustees . . . full authority 1
to adopt rules and regulations governing the determination and 2
payment of withdrawal liability, consistent with the statute and any 3
governmental regulations promulgated under it”; it further 4
provide[d] that “such rules and regulations adopted by the Trustees 5
shall be binding on all Employers.”3 The rules and regulations 6
concerning withdrawal liability (the Fund rules) provide that “the 7
employer may initiate a binding arbitration regarding the assessment 8
by making a formal filing with the American Arbitration Association.”4 9
As part of their CBA, the parties agreed that any arbitration 10
would be filed with and therefore governed by the AAA rules, which, 11
as relevant here, required Neshoma to send the AAA a $8,200 filing 12
fee in order to initiate arbitration. On July 31, 2009, the CBA between 13
Neshoma and the Union expired, however the terms of the agreement 14
remained in force until a new agreement would be reached. After 15
years of failed renewal negotiations, Neshoma stopped making 16
pension contributions in July 2012. 17
By letter dated August 27, 2015, the Fund notified Neshoma 18
that, as of June 8, 2013, Neshoma had effected a complete withdrawal 19
from the Fund and therefore was liable for withdrawal liability in the 20
amount of $1,111,124. The Fund demanded payment and informed 21
3 Id., ECF No. 38-3, at 62 § 13.1.
4 App’x 51 (emphasis added).

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6 No. 19-1093-cv
Neshoma of its right, under 29 U.S.C. § 1399(b)(2)(A), to request 1
review of the assessment within 90 days. 2
By a letter dated August 31, 2015, Neshoma disputed its 3
withdrawal from the Fund and contended that the payment demand 4
was excessive. Neshoma also argued that the Fund’s assessment of 5
withdrawal liability should be rescinded under the “labor dispute” 6
exception in 29 U.S.C. § 1398. Neshoma also “demand[ed]” 7
commencement of arbitration proceedings.5 8
On September 21, 2015, the Fund responded to Neshoma, 9
stating that it considered Neshoma’s August 31, 2015 letter to be a 10
request for review under 29 U.S.C. § 1399(b)(2)(A). The Fund 11
confirmed its determination that Neshoma had withdrawn from the 12
Fund and that the sought-after payment amount was correct. This 13
letter began a 60-day clock for Neshoma to initiate arbitration under 14
29 U.S.C. § 1401(a)(1)(A), which expired on November 20, 2015. 15
On January 11, 2016, Neshoma sent the AAA a request to 16
arbitrate the Fund’s assessment and a check for $275.00. By letter 17
dated March 2, 2016, the Fund informed Neshoma that it had not paid 18
the first two installment payments on the assessment (which came 19
due on October 26, 2015) and that if payment was not received within 20
60 days after receipt of the letter, Neshoma would be in default under 21
29 U.S.C. § 1399(c)(5) which triggered the Fund’s right to immediate 22
5 App’x 62.

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7 No. 19-1093-cv
payment. Neshoma has never made any payments. On April 12, 2017, 1
the Fund brought this action to collect the withdrawal liability 2
amount. 3
Meanwhile, Neshoma and the Union were in the process of 4
negotiating a successor CBA to the one that expired on July 31, 2009. 5
Neshoma filed a third-party complaint against the Union, alleging 6
that during a negotiation held on October 7, 2015, the Union’s 7
counsel, Harvey Mars, promised that if Neshoma entered into a new 8
CBA, the Union would ensure that the Fund would expunge the 9
claimed withdrawal liability assessment. Neshoma argued that, in 10
reliance on this promise, it executed the proposed successor CBA, but 11
that the Union did not honor this promise. 12
On May 23, 2018, the district court granted the Fund partial 13
summary judgment in the full amount, holding that Neshoma had 14
failed to timely initiate arbitration, fixing the amount of withdrawal 15
liability and precluding Neshoma’s ability to challenge it. The district 16
court also dismissed the amended third-party complaint against the 17
Union, finding that Neshoma’s claim was preempted by the NLRA. 18
DISCUSSION 19
On appeal, Neshoma argues that it did, in fact, comply with 20
“the statutory and regulatory requirements for commencing an 21
ERISA arbitration to contest the assessment,” and, in the alternative, 22
because the AAA’s arbitration procedures were not “fair and 23

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8 No. 19-1093-cv
equitable,” Neshoma was not required to timely invoke arbitration.6 1
Neshoma also argues that the NLRA does not apply to its third-party 2
action against the Union, which therefore should not have been 3
dismissed as preempted. 4
Our standard of review for both motions to dismiss and 5
motions for summary judgment is de novo.7 6
I. Whether Neshoma Properly Initiated Arbitration 7
ERISA provides that “[a]ny dispute between an employer and 8
the plan sponsor of a multiemployer plan concerning a determination 9
[of withdrawal liability] made under sections 1381 through 1399 of 10
this title shall be resolved through arbitration.”8 This Circuit has held 11
that “[d]isputes over withdrawal liability determinations are to be 12
resolved by arbitration, as provided in 29 U.S.C. § 1401(a)(1).”9 ERISA 13
provides that, after receiving a pension fund’s notice of withdrawal- 14
liability assessment and demand for payment, an employer has 90 15
6 Appellant’s Br. at 17, 19.
7 Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003)
(citing Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (motion
to dismiss); Mario v. P & C Food Markets, Inc., 313 F.3d 758, 763 (2d Cir. 2002)
(summary judgment)).
8 29 U.S.C. § 1401(a)(1).
9 ILGWU Nat. Ret. Fund v. Levy Bros. Frocks, 846 F.2d 879, 881 (2d Cir. 1988).

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9 No. 19-1093-cv
days to ask the fund to review the assessment and schedule of 1
payments.10 2
Following this request for review, ERISA sets forth a schedule 3
for an employer to initiate11 arbitration to challenge the withdrawal 4
liability assessment as follows: 5
Any dispute between an employer and the plan 6
sponsor of a multiemployer plan concerning the 7
determination made under sections 1381 through 8
1399 of this title shall be resolved through arbitration. 9
Either party may initiate the arbitration proceedings 10
within a 60-day period after the earlier of: 11
(A) the date of notification to the employer 12
under section 1399(b)(2)(B) of this title, or 13
(B) 120 days after the date of the employer’s 14
request under section 1399(b)(2)(A) of this title. 15
10 29 U.S.C. § 1399(b)(2)(A).
11 In support of its position, Neshoma also points to 29 C.F.R. § 4221.3, a
Labor Department regulation interpreting ERISA. We do not view this
regulation as relevant here. Although it generally discusses the initiation
of arbitration, it does not define “initiation,” and it therefore does not
advance the analysis.

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10 No. 19-1093-cv
The parties may jointly initiate arbitration within the 180- 1
day period after the date of the plan sponsor’s demand 2
under section 1399(b)(1) of this title.12 3
In the event arbitration is not initiated, the withdrawal liability 4
becomes “due and owing” as set forth in the plan sponsor’s payment 5
schedule and the plan sponsor may bring a collection action in 6
court.13 Moreover, this Circuit has held that we will not 7
“disregard the clear language of the statute in order to relieve the 8
Company of the consequences of its failure to meet the time 9
limitations imposed by the Act.”14 “Congress intended that disputes 10
over withdrawal liability would be resolved quickly, and established 11
a procedural bar for employers who fail to arbitrate disputes over 12
withdrawal liability in a timely manner.”15 13
Neshoma first contends that its August 31, 2015 letter was 14
sufficient to initiate arbitration and, thus, the district court lacked 15
jurisdiction. In the alternative, Neshoma argues that the AAA 16
12 29 U.S.C. § 1401(a)(1).
13 See Div. 1181 Amalgamated Transit Union-New York Employees’ Pension
Fund v. Logan Transp. Sys., Inc., 293 F. Supp. 3d 336, 346 (E.D.N.Y. 2018)
(citation omitted).
14 New York State Teamsters Conference Pension & Ret. Fund v. McNicholas
Transp. Co., 848 F.2d 20, 23–24 (2d Cir. 1988).
15 ILGWU Nat. Ret. Fund, 846 F.2d at 887 (citing 29 U.S.C. § 1401(b)(1)).

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11 No. 19-1093-cv
procedures are not fair nor equitable and, therefore, are 1
unenforceable. These arguments are without merit. 2
In that letter, the relevant language stated: 3
Should the Pension Fund not withdraw its demand for 4
payment of withdrawal liability based upon the labor 5
dispute exception, please consider this letter as a demand 6
for arbitration as to the issue of liability and the calculation 7
of liability. Please provide me with the procedures for the 8
actual arbitration as I have been unable to locate same.16 9
We easily conclude that Neshoma failed to timely initiate 10
arbitration. 11
First, the agreed-upon rules in the pension agreement between 12
the parties require that any arbitration demand must be filed with the 13
AAA, which Neshoma did not do until January 2016, nearly two 14
months after the November statutory deadline. Furthermore, it is 15
undisputed that Neshoma was aware of this requirement the 16
previous September. The Fund had attached a copy of the rules to its 17
September 21, 2015 letter which expressly stated that the “Fund’s 18
rules require use of the American Arbitration Association and specify 19
that arbitration may be initiated only by a formal filing with the 20
AAA.”17 21
16 App’x 62.
17 App’x 66.

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12 No. 19-1093-cv
Neshoma cites numerous cases to press its argument that its 1
August 31, 2015 letter met the “minimal requirements” of an 2
arbitration demand.18 All of the cases are inapposite, however, and 3
further undermine Neshoma’s contention. Unlike Neshoma, the 4
party seeking arbitration in those cases did not initially agree to be 5
bound by the Fund rules, which specify that the demand for 6
arbitration be sent to the AAA. In fact, the cases make clear that, while 7
29 U.S.C. § 1401(a)(1) does not require parties to initiate arbitration 8
pursuant to the AAA rules, courts will find that the parties failed to 9
initiate arbitration “where the trust funds’ rules specifically required 10
the employer to initiate arbitration pursuant to AAA rules.”19 11
Neshoma does not address the critical distinction between parties 12
who have initially agreed to initiate arbitration by “making a formal 13
filing” with the AAA and those who have not. 20 If an employer has 14
18 See Div. 1181 Amalgamated Transit Union-New York Employees Pension Fund,
293 F. Supp. 3d 336; Operating Eng'rs' Pension Tr. Fund v. Fife Rock Prods. Co., No.
C 10-697 SI, 2011 U.S. Dist. LEXIS 9045, 2011 WL 227665 (N.D. Cal. Jan. 24, 2011);
Teamsters-Employers Local 945 Pension Fund v. Waste Mgmt. of N.J., Inc., Civil No. 11-
902 (FSH), 2011 U.S. Dist. LEXIS 59090, 2011 WL 2173854 (D.N.J. June 2, 2011).
19 Operating Eng’rs' Pension Tr. Fund, 2011 WL 227665, at *5; see also Div. 1181
Amalgamated Transit Union-New York Employees Pension Fund, 293 F. Supp. 3d at
351 (finding that employers had, in fact, timely filed a demand for arbitration with
the AAA).
20 App’x 51. Neshoma also devotes a large portion of its brief to argue
that “Once Neshoma Demanded Arbitration the Court Was Stripped of
Jurisdiction.” Appellant’s Br. at 27. Neshoma’s argument is based on its
false claim that the “Lower Court accepted that Neshoma, by letter dated
August 31, 2015, demanded arbitration.” Id. at 29. Judge Koeltl did no such

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13 No. 19-1093-cv
committed by contract to use a certain procedure to initiate 1
arbitration, then it must follow that procedure or suffer the 2
consequences. 3
In the alternative, Neshoma argues that the $8,200 fee was 4
unfair and inequitable and therefore excused its untimely demand 5
for arbitration. The district court rightly noted that any defects in the 6
procedures or the “AAA fee does not excuse Neshoma’s failure to file 7
a timely demand for arbitration together with a payment of whatever 8
portion of the fee it could afford.”21 Had Neshoma timely filed with 9
the AAA and submitted its filing with a lower payment amount, this 10
issue would be properly before us. 11
In sum, we conclude that, in the ERISA context, the parties 12
must comply with the arbitration rules specified in their agreement. 13
Here, Neshoma failed to comply with its obligations under the 14
agreed-upon Fund rules to timely initiate arbitration. We, therefore, 15
AFFIRM. 16
II. Neshoma’s Third Party Complaint Against the Union 17
Neshoma argues that the Union made material 18
misrepresentations during collective bargaining negotiations. 19
thing. We do not address this argument because the district court did not
err in finding that Neshoma had not appropriately demanded arbitration.
21 Am. Fed'n of Musicians & Employers' Pension Fund v. Neshoma Orchestra
& Singers, Inc., No. 17-CV-2640 (JGK), 2018 WL 2341551, at *6 (S.D.N.Y. May
23, 2018).

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14 No. 19-1093-cv
Specifically, Neshoma alleges that the Union’s counsel stated that the 1
withdrawal liability assessment would “go away” if Neshoma agreed 2
to the terms of the new collective bargaining agreement with the 3
Union.22 Neshoma argues that the district court erred in granting the 4
Union’s motion to dismiss on the basis that, because the claim was 5
preempted by the NLRA, the district court lacked subject matter 6
jurisdiction.23 Neshoma contends that the NLRA does not apply to its 7
complaint against the Union and, therefore, the district court erred in 8
granting the Union’s motion to dismiss. 9
Neshoma argues that because this matter does not involve 10
“wages, hours, and other conditions of employment” the NLRA does 11
not preempt the dispute. Neshoma also argues that the NLRA does 12
not apply because the agreement at issue is not covered by the NLRA. 13
Both arguments are unavailing. 14
Section 8 of the NLRA describes the “unfair labor practices” 15
over which the National Labor Relations Board (NLRB) has 16
jurisdiction. These include violations of the obligation to “bargain 17
collectively,”24 which it defines as follows: 18
22 App’x 35 ¶¶ 78-80.
23 We refer to Neshoma’s state law claims as a single claim because they
are all premised on the same allegedly bad-faith promise by the Union.
24 29 U.S.C. § 158(b)(3).

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15 No. 19-1093-cv
to bargain collectively is the performance of the mutual 1
obligation of the employer and the representative of the 2
employees to meet at reasonable times and confer in good 3
faith with respect to wages, hours, and other terms and 4
conditions of employment, or the negotiation of an 5
agreement, or any question arising thereunder, and the 6
execution of a written contract incorporating any 7
agreement reached if requested by either party . . . .25 8
First, Neshoma ignores the context in which the alleged 9
fraudulent statements were made: during the course of collective 10
bargaining and under the mandate that the parties bargain in good 11
faith. Collective bargaining agreements specify the working 12
conditions of employees and the NLRB has routinely recognized 13
unfair labor practices for bad-faith bargaining during collective 14
bargaining negotiations.26 Assuming the allegations are true, as we 15
are required to do on a motion to dismiss, the Union made deliberate 16
misrepresentations (e.g., “[e]verything will go away”27) regarding the 17
withdrawal liability provided Neshoma signed the renewal 18
agreement, this would certainly indicate bad-faith bargaining in 19
violation of 29 U.S.C. § 158(b)(3), (d). 20
25 Id. § 158(d) (emphasis added).
26 See, e.g., Avila Grp., Inc., 218 NLRB 633, 634 (1975).
27 App’x 35 ¶ 79.

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16 No. 19-1093-cv
Therefore, we agree with the district court that Neshoma’s 1
claim that “the Union made a bad faith promise – namely, a promise 2
to ensure that the assessment of withdrawal liability against Neshoma 3
would be rescinded – in order to induce Neshoma to sign a renewal 4
agreement . . . is identical to one that could have been presented to the 5
NLRB.”28 The alleged misconduct, at a minimum, fell within the 6
ambit of Section 8 of the NLRA and thus was preempted. 29 Therefore, 7
the district court lacked subject matter jurisdiction over Neshoma’s 8
claim, which grew out of an allegedly bad-faith promise made during 9
collective bargaining.30 The NLRA gives the NLRB exclusive 10
jurisdiction over such a claim. 11
28 Am. Fed'n of Musicians & Employers' Pension Fund v. Neshoma Orchestra
& Singers, Inc., No. 17-CV-2640 (JGK), 2018 WL 2338764, at *3-4 (S.D.N.Y.
May 23, 2018), appeal withdrawn sub nom. Neshoma Orchestra & Singers, Inc.
v. Associated Musicians of Greater New York Local 802, AFM, AFL-CIO, No. 18-
1884, 2018 WL 4627066 (2d Cir. Aug. 21, 2018).
29 See San Diego Bldg. Trades Council, Millmen's Union, Local 2020 v.
Garmon, 359 U.S. 236, 245 (1959) (“When an activity is arguably subject to s
7 or s 8 of the Act, the States as well as the federal courts must defer to the
exclusive competence of the National Labor Relations Board if the danger
of state interference with national policy is to be averted.”).
30 See, e.g., Talbot v. Robert Matthews Distrib. Co., 961 F.2d 654, 661 (7th Cir. 1992)
(“The plaintiffs' common law fraud and misrepresentation claim against the
defendants is identical to a claim which could have been pursued before the
NLRB.”); Parker v. Connors Steel Co., 855 F.2d 1510, 1516–17 (11th Cir. 1988) (noting
that plaintiffs “raise[d] claims that are in substance allegations that the Company
breached its duty to bargain in good faith in negotiating the concessions”); Serrano
v. Jones & Laughlin Steel Co., 790 F.2d 1279, 1286 (6th Cir. 1986) (“No matter how it
is stated, the gravamen of the three fraud charges is that J & L did not bargain in
good faith in obtaining concessions from the Union in the July agreement.”).

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17 No. 19-1093-cv
Neshoma’s second argument is that the Union did not 1
represent a majority of the employees at the time of the negotiations 2
and, thus, any negotiations could not amount to collective bargaining 3
subject to the NLRA. The district court correctly rejected this 4
argument. 5
An April 2014 agreement signed by Neshoma and the Union 6
recognized the Union as the sole and exclusive bargaining 7
representative for all musicians employed by Neshoma. This written 8
acknowledgement was sufficient evidence that the Union enjoyed 9
status as the exclusive bargaining agent.31 Further, the district court 10
rightly noted that the April 2014 agreement refers to the former 11
agreement between the parties as a “collective bargaining agreement” 12
and, accordingly, there is a “rebuttable presumption of majority 13
status ‘[a]t the end of the certification year or upon expiration of the 14
collective-bargaining agreement.’”32 On appeal, Neshoma does not 15
point to any evidence to support its contention that the Union was not 16
the exclusive bargaining agent. Thus, we easily conclude that the 17
district court did not err in holding that the NLRA applied to the 18
31 Am. Fed'n of Musicians & Employers' Pension Fund, 2018 WL 2338764, at
*4.
32 Id. (quoting Auciello Iron Works, Inc. v. N.L.R.B., 517 U.S. 781, 786
(1996)).

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18 No. 19-1093-cv
claim in the third party-complaint and that the claim was, therefore, 1
preempted. 2
In sum, we hold that the district court did not err in its well- 3
reasoned opinions. Neshoma did not timely demand arbitration and 4
the NLRA preempts its claim that the Union bargained in bad faith. 5
Accordingly, we AFFIRM. 6
C ONCLUSION 7
For the reasons stated above, we AFFIRM the judgment of the 8
district court. 9

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