In Bakery and Confectionery Union Fund v. Just Born II, Inc., the 4th U.S. Circuit Court of Appeals on April 26, 2018, affirmed the district court’s judgment requiring Just Born to pay delinquent contributions into the Bakery and Confectionery Union and Industry International Pension Fund (the Pension Fund), as well as interest, statutory damages and attorneys’ fees.

The 4th Circuit ruled that the Pension Fund can require Just Born to continue making contributions for new bargaining-unit employees following the expiration of its collective bargaining agreement (CBA) with the Bakery, Confectionery and Tobacco Workers International Union, Local Union 6 (Local 6), and contrary to the terms of its new agreement. After bargaining to impasse, Just Born implemented its last, best offer to Local 6, under which contributions would be made to the financially troubled Pension Fund for existing employees, but not for new hires. In holding that the Pension Fund’s rehabilitation plan required Just Born to continue contributions for all bargaining-unit employees, regardless of its agreement with Local 6, the 4th Circuit reasoned that this result was required by amendments the Multiemployer Pension Reform Act of 2014 (MPRA) made to the Pension Protection Act (PPA) and ERISA.

The Just Born case is much more than a delinquent contribution collection case. It deals with the interaction of the MPRA, the National Labor Relations Act, the Taft-Hartley Act and the PPA —implications of which the court barely discussed. The case also illustrates tactics the Pension Fund and Just Born used to mitigate the looming insolvency crisis facing many badly underfunded multiemployer pension plans (MEPPs) and the employers participating in those MEPPs.

MEPP Crisis

For the Pension Fund and many other badly underfunded MEPPs — and the participating employers and employees who count on those pensions — the near future looks bleak. For these funds (less than 10 percent of approximately 1,400 MEPPs nationally), insolvency is forecasted within the next five to 20 years. The Pension Benefit Guaranty Corporation (PBGC) provides limited insurance to backstop these benefits, but the PBGC’s Multiemployer Pension Program could itself be insolvent in five years. For hundreds of thousands of employees and retirees, there could be no funds available to pay for the pension promises made by these MEPPs.

The problem MEPPs are characterized by large numbers of retirees and terminated vested participants, supported by shrinking total contributions paid for relatively few active employees and withdrawal liability payments from employers who have left the MEPPs. The trucking and furniture industries, for example, have seen contributing employers file for bankruptcy, close shop, or otherwise cease operations and withdraw from industry MEPPs. One survey found that 87 percent of beneficiaries in critical and declining plans were inactive — either retired or not working but entitled to a vested benefit in the future. MEPPs must pay benefits to “orphaned” participants left behind when their employers go out of business, using the contributions of employers who remain in the MEPPs.

The Pension Fund in the Just Born case has suffered a similar history of chronic underfunding and loss of employer contributions, including the 2012 Hostess bankruptcy, in which $1 billion in pension liability was discharged with respect to the Pension Fund, where Hostess represented 13 percent of the Pension Fund’s contributions.

Pension Protection Act and Multiemployer Pension Reform Act

The PPA amended ERISA to require more specific disclosure of the MEPP’s funded status and allow trustees of critical-status plans to reduce or eliminate certain benefits, including lump sums, post-retirement benefits, subsidized optional forms of payment, early retirement benefits, and benefit increases adopted less than 60 months before the plan entered critical status. Notably, the PPA established three categories of MEPPs: (i) “Green Zone” for healthy, (ii) “Yellow Zone” for endangered, and (iii) “Red Zone” for critical plans. These categories are based upon the funding ratio of plan assets to plan liabilities. Generally, Red Zone plans are less than 65 percent funded.

Each year, the MEPP’s actuary must certify the zone status within 90 days of the start of the plan year. If the MEPP is certified in the Red Zone, it must establish a funding rehabilitation plan (Rehab Plan), and provide the parties to each CBA one or more schedules of employer contribution increases and/or benefit reductions that, over time, will improve the funding status of the MEPP and allow it to emerge from critical status or forestall insolvency. Similar rules apply for plans certified in the Yellow Zone. The bargaining parties can wait until negotiations on a new CBA to agree on a schedule, or they can re-open their current agreement to incorporate a schedule.

The PPA has helped many MEPPs, but some MEPPs still face insolvency. In 2014, Congress passed the MPRA, which enacted certain technical corrections to the PPA rules, imposed higher PBGC premiums and, among other reforms, allowed poorly funded MEPPs to reduce accrued benefits (including benefits in pay status) with the consent of the Treasury Department and a vote of all MEPP participants and beneficiaries. In May 2016, Treasury denied the first MPRA application, filed by Central States, the largest MEPP in the country and one of the worst-funded. Treasury’s action doomed Central States and assured the insolvency of PBGC’s Multiemployer Pension Program, absent a federal bailout. Central States had supported the MPRA, which was designed in large part to save Central States.

The MPRA also amended a PPA rule addressing what would happen regarding a Rehab Plan contribution schedule in subsequent bargaining over a CBA that expired. Specifically, MPRA revised an ERISA provision added by the PPA to provide for a “Subsequent Contribution Schedule,” 29 U.S.C. § 1085(e)(3)(C)(ii)-(iii) (the MPRA Provision). Under the MPRA Provision, if “a collective bargaining agreement providing for contributions under a multiemployer plan in accordance with a schedule provided by the plan sponsor pursuant to a rehabilitation plan” expires while the plan is still in critical status, and “the bargaining parties with respect to such agreement fail to adopt a contribution schedule with terms consistent with the updated rehabilitation plan and a schedule from the plan sponsor,” then “the contribution schedule applicable under the expired collective bargaining agreement, as updated and in effect on the date the collective bargaining agreement expires, shall be implemented by the plan sponsor” effective 180 days after the CBA expired.

The issue in Just Born was whether the MPRA Provision allowed the Pension Fund to require Just Born to continue making contributions for new bargaining-unit employees following expiration of its CBA with Local 6, despite its new agreement with Local 6 providing otherwise.

The Bakery and Confectionery Union and Industry International Pension Fund

The Pension Fund is a “critical and declining” MEPP that has promised retirement benefits to employees working in the baking and candy industries under CBAs between numerous employers and local unions. The Pension Fund is projected to be insolvent in the 2029 plan year.

Under the PPA, the Pension Fund’s critical status required the trustees to “adopt and implement a rehabilitation plan” under 29 U.S.C. §1085(a)(2)(A) with revised schedules of reduced benefits and increased contributions. The Pension Fund’s Rehab Plan included a revised contribution schedule requiring 5 percent annual increases in the amount employers “contribute for every hour or portion of an hour, beginning on the first day of employment, that a person ... works in a job classification that is covered by the” CBA.

Just Born’s Bargaining Tactic: No Contributions for New Employees

Just Born was a participating employer in the Pension Fund pursuant to a series of CBAs between itself and Local 6, the most recent of which, as extended, ran from March 1, 2012, through April 30, 2015. The CBA provided for Just Born to make contributions to the Pension Fund “for each employee working in job classifications covered by a Collective Bargaining Agreement between the Employer and the Union.”

In negotiations for a new CBA, Just Born proposed that any new agreement require that Just Born make contributions only on behalf of current employees and provide a 401(k) defined-contribution plan for newly hired employees excluded from the Pension Fund. Local 6 rejected this proposal and filed an unfair-labor-practice charge with the National Labor Relations Board (NLRB), alleging that Just Born’s proposal constituted bad-faith bargaining. After an investigation, the NLRB dismissed the allegations, and Local 6 did not appeal.

In November 2015, after months of unsuccessful negotiations, Just Born declared a bargaining impasse and implemented its best and final offer: continuing to contribute to the Pension Fund for existing employees already participating in the Pension Fund, but making no contributions to the Pension Fund on behalf of newly hired employees, who were unlikely to receive significant benefits from the Pension Fund if the Pension Fund becomes insolvent and the PBGC safety net is lost.

MPRA Provision Requires Contributions for All Employees

The Pension Fund implemented the contribution schedule as in effect on the date of the CBA’s expiration and sued Just Born for delinquent contributions owed for new employees, relying on the MPRA Provision and the requirement in the contribution schedule that employers make contributions to the Pension Fund on behalf of “all” employees “working in job classifications covered by” the CBA.

Under its interpretation of the MPRA Provision, the 4th Circuit found that Just Born was a “bargaining party” under the expired CBA and that the remaining conditions of the provision were satisfied:

[T]he CBA expired while the Pension Fund was in critical status and operating under a rehabilitation plan schedule, and Just Born and the Union — the bargaining parties to the expired CBA — “fail[ed] to adopt a contribution schedule” with terms consistent with an updated rehabilitation plan. With these preconditions met, the Provision requires the Pension Fund to implement the contribution schedule “as updated and in effect on the date the [CBA] expire[d].” See § 1085(e)(3)(C)(ii)(II). Thus, the plain language of the Provision requires Just Born to continue to contribute according to the revised schedule that applied at the time the CBA expired, and that schedule, in turn, requires contribution for all employees: existing and new hires.

Implications of Just Born

The 4th Circuit agrees with the Pension Fund that 29 U.S.C. § 1085(e)(3)(C)(ii) gives unfunded MEPPs a new weapon in responding to employer attempts to pare down their contribution obligations to the MEPP. Before the MPRA, MEPPs could reject CBAs (and force a complete withdrawal on the employer) if the MEPP considered the CBA unacceptable, but could not impose a different contribution obligation on the employer. In the 4th Circuit’s view, the MPRA Provision obligates the employer to comply with the MEPP’s Rehab Plan if the employer wants to continue participating in the MEPP.

Under the 4th Circuit interpretation of the MPRA Provision, what terms can a Rehab Plan properly impose upon employers without the employer’s consent? Rehab Plans are adopted unilaterally by the MEPP trustees. The 4th Circuit assumed without discussion that the “contribution schedule” that Just Born had to follow included not just the amount of the contribution, but also the employees for whom the contributions must be made. That conclusion significantly diminishes the authority of the employer and union to negotiate the terms and conditions of employment. Likewise, Section 302(c)(5) of the Taft-Hartley Act, which the 4th Circuit does not mention, requires that an employer’s contributions to the MEPP be made pursuant to a “written agreement with the employer” providing the detailed basis on which such payments are to be made. Just Born implicitly erodes this Taft-Hartley provision.

What’s in the Future?

Employers participating in badly underfunded MEPPs have experienced increased contribution rates and higher PBGC premiums, but insolvency still looms, with the danger that employees will never receive the full benefits promised by these MEPPs. Congress has now convened a Joint Select Committee on Solvency of Multiemployer Pension Plans to recommend a solution for the MEPP crisis by year’s end. A package of reforms will likely be proposed, but expect to see some type of taxpayer bailout of MEPPs and/or the PBGC.