Board of Trustees of the Western States Office and Professional Employees Pension Fund v. Welfare & Pension Administration Service, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

BOARD OF TRUSTEES OF THE WESTERN Case No. 3:19-cv-00811-SB

STATES OFFICE AND PROFESSIONAL

EMPLOYEES PENSION FUND, OPINION AND ORDER

Plaintiff,

v.

WELFARE & PENSION

ADMINISTRATION SERVICE, INC.,

Defendant.

BECKERMAN, U.S. Magistrate Judge.

This matter comes before the Court on plaintiff Board of Trustees of the Western States

Office and Professional Employees Pension Fund (the “Board”) and defendant Welfare and

Pension Administration Service, Inc.’s (“WPAS”) cross-motions for summary judgment. The

Court has jurisdiction over this matter pursuant to 29 U.S.C. §§ 1401 and 1451, and both parties

have consented to the jurisdiction of a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636. For

the reasons explained below, the Court denies the Board’s motion for summary judgment and

grants WPAS’s cross-motion for summary judgment.

///

BACKGROUND

I. ERISA STATUTORY FRAMEWORK

“Congress designed [the Employee Retirement Income Security Act (“ERISA”)] to

regulate both single employer and multiemployer private pension plans.” Bd. of Trs. of IBT Local

863 Pension Fund v. C&S Wholesale Grocers, Inc., 802 F.3d 534, 536 (3d Cir. 2015) (citation

omitted). The parties’ dispute concerns a multiemployer pension plan. (Decl. Jeremy Roller

Supp. Def.’s Resp. & Cross-Mot. Summ. J. (“Roller Decl.”) Ex. A-1, at 2, ECF No. 17-1.)

“A significant drawback of multiemployer pension plans is that ‘the possibility of

liability upon termination of a plan create[s] an incentive for employers to withdraw from weak

multiemployer plans.’” C&S Wholesale, 802 F.3d at 536 (quoting Concrete Pipe & Prods. of

Cal., Inc. v. Constr. Laborers Pension Tr. for S. Cal., 508 U.S. 602, 608 (1993)). If “an employer

withdraws from a pension plan before fully funding the amounts attributable to its employees,

the plan’s contribution base is reduced and the remaining contributing employers have no choice

but to absorb the higher costs through increased contribution rates.” Id. (citing Connolly v.

Pension Benefit Guar. Corp., 475 U.S. 211, 216 (1986)). That in turn could “jeopardize the

plan’s survival because the remaining employers have an increased incentive to also withdraw.”

Id.

To address this risk, Congress amended ERISA by enacting the Multiemployer Pension

Plan Amendments Act of 1980 (the “MPPAA”). C&S Wholesale, 802 F.3d at 536-37 (citation

omitted). The MPPAA provides that “when an employer completely withdraws from a

multiemployer pension plan, it incurs withdrawal liability that corresponds to the value of the

benefits in the plan that have vested and are attributable to its employees.” Id. at 537. Section

1391(c)(3) “provides the formula with which a plan’s actuaries are to calculate the amount of

this liability.” Id.

Under the MPPAA, an employer can satisfy its entire withdrawal liability by, among

other things, “amortiz[ing] the debt in equal annual payments[.]” Id. Section 1399(c)(1)(C)(i)

provides the following two-part formula for calculating the amount of these annual payments:

[T]he amount of each annual payment shall be the product of—

(I) the average annual number of contribution base units for the

period of 3 consecutive plan years, during the period of 10

consecutive plan years ending before the plan year in which the

withdrawal occurs, in which the number of contribution base units

for which the employer had an obligation to contribute under the

plan is the highest, and

(II) the highest contribution rate at which the employer had an

obligation to contribute under the plan during the 10 plan years

ending with the plan year in which the withdrawal occurs.

29 U.S.C. § 1399(c)(1) (emphasis added).1 The term “contribution base units” is generally

understood to mean “the compensable or paid hours for which an employer contributes to the

plan on behalf of its employees.” C&S Wholesale, 802 F.3d at 537. The term “obligation to

contribute” means an obligation “arising (1) under one or more collective bargaining (or related)

agreements, or (2) as a result of a duty under applicable labor-management relations law.” 29

U.S.C. § 1392(a).

In 2006, Congress further amended ERISA by enacting the Pension Protection Act (the

“PPA”). The purpose of this amendment was “‘to protect and restore multiemployer pension

plans in danger of being unable to meet their pension distribution obligations in the near future.’”

C&S Wholesale, 802 F.3d at 538 (quoting Trs. of the Local 138 Pension Tr. Fund v. F.W.

Honerkamp Co., Inc., 692 F.3d 127, 130 (2d Cir. 2012)). Under the PPA, “a multiemployer

pension plan that is less than 65 percent funded is in ‘critical status.’” Id. The PPA “imposes an

1 An employer’s “annual payments are capped at 20 years even if more than 20 annual

payments would be required to completely satisfy [its] withdrawal liability.” C&S Wholesale,

802 F.3d at 542.

automatic surcharge from 30 days after the employer has been notified that the plan is in critical

status[.]” Id. (citing 29 U.S.C. § 1085(e)(7)). The surcharge is equal to five percent of the

contributions required under the collective bargaining agreement (“CBA”) in the first year and

fixed at ten percent in subsequent years. Id. (citing 29 U.S.C. § 1085(e)(7)). The PPA provides

that “[a]ny surcharges under paragraph (7) shall be disregarded in determining the allocation of

unfunded vested benefits to an employer under section 1391, except for purposes of determining

the unfunded vested benefits attributable to an employer under section 1391(c)(4) or a

comparable method approved under section 1391(c)(5).”2 Id. (quoting 29 U.S.C. § 1085(e)(9)(B)

(2008)).

In 2014, Congress passed the Multiemployer Pension Reform Act (“MPRA”). C&S

Wholesale, 802 F.3d at 538. The MPRA amended § 1085, which now states that “automatic

surcharges [shall] ‘be disregarded in determining the allocation of unfunded vested benefits to an

employer under [29 U.S.C. § 1391] and in determining the highest contribution rate under [29

U.S.C. § 1399(c)].’” Id. at 546 (quoting 29 U.S.C. § 1085(g)(2) (2014)).

II. FACTUAL AND PROCEDURAL HISTORY3

In 2016, WPAS completely withdrew from the Western States Office and Professional

Employees Pension Fund (the “Fund”), a multiemployer pension plan subject to ERISA. (Roller

Decl. Ex. A-1, at 2-3.) The CBA under which WPAS contributed to the Fund established an

hourly contribution rate of $2.95 effective April 1, 2010, and the Fund had been in “critical

2 Congress amended the PPA in 2008. C&S Wholesale, 802 F.3d at 546. Prior to 2008,

the PPA provided that “‘[a]ny surcharges . . . shall be disregarded in determining an employer’s

withdrawal liability under section 1391 of this title[.]” Id. (quoting 29 U.S.C. § 1085(e)(9)(B)

(2006)).

3 The material facts are undisputed. (See Def.’s Resp. & Cross-Mot. Summ. J. at 11, “The

Parties agree that no material facts are in dispute and that this case presents a pure question of

law.”)

status,” as defined by the PPA, since January 1, 2009. (Decl. Robert Miller Supp. of Pl.’s Mot.

Summ. J. (“Miller Decl.”) Ex. 1, at 19, ECF No. 15-1; Roller Decl. Ex. A-1, at 2; Miller Decl.

Ex. 2, at 1.) As a result, WPAS paid a surcharge fixed at 10 percent of its contributions before

withdrawing from the Fund. (See Roller Decl. Ex. A-3, at 18.)

After WPAS withdrew from the Fund, the Board calculated WPAS’s withdrawal liability

(i.e., the amount of unfunded vested benefits that WPAS owed under 29 U.S.C. § 1391(c)(3)).

(Miller Decl. Ex. 3, at 1-24.) The parties do not dispute that the amount WPAS owes is

$24,436,947. (See Miller Decl. Ex. 3, at 1, determining that WPAS’s “total withdrawal liability

is $24,436,947”; see also Def.’s Resp. & Cross-Mot. Summ. J. at 5, explaining that the Board

“assessed WPAS’s withdrawal liability in the amount of $24,436,947,” and that the Board’s

“assessment of [WPAS’s] withdrawal liability amount is not at issue in this case”).

WPAS elected to make annual payments, and the Board calculated WPAS’s annual

payments using the formula provided by 29 U.S.C. § 1399(c)(1). (See Miller Decl. Ex. 3, at 20.)

The Board used two figures to calculate WPAS’s annual withdrawal liability payments. First, the

Board used the average annual hours/contribution units in the highest three consecutive years

during the ten years preceding WPAS’s withdrawal (296,213).4 (Miller Decl. Ex. 3, at 20.)

Second, the Board assessed WPAS’s “highest contribution rate” by selecting WPAS’s single

highest hourly contribution rate under the CBA ($2.95 per hour) and adding the 10 percent

surcharge that WPAS had been paying, which produced a total contribution rate of $3.245. (See

Miller Decl. Ex. 3, at 20.) The Board’s resulting calculation under 29 U.S.C. § 1399(c)(1) was an

annual withdrawal liability payment of $961,211 (296,213 units multiplied by the $3.245

contribution rate). (Miller Decl. Ex. 3, at 20.)

4 It is undisputed that the Board “accurately calculated” this figure. (Def.’s Resp. &

Cross-Mot. Summ. J. at 11.)

WPAS disputed the Board’s methodology to calculate its highest contribution rate.

WPAS’s position is that the Board should not have included the 10 percent surcharge in

calculating its annual withdrawal liability payment. The parties submitted their dispute to an

arbitrator, framed as follows:5

1. Whether in calculating WPAS’s ‘highest contribution rate

at which the employer had an obligation to contribute under

the plan’ under ERISA . . . , [the Board] erred in including

a 10% employer surcharge imposed under the [PPA].

2. If [the Board] is found to have erred in including a 10%

employer surcharge in calculating the highest contribution

rate, determination of the appropriate remedy.

(Roller Decl. Ex. A-1, at 2.)

The arbitrator found that the Board should not have included the 10 percent surcharge in

calculating WPAS’s annual withdrawal liability payment. (Roller Decl. Ex. B, at 1-10, Ex. C, at

1-11.) The arbitrator therefore granted WPAS’s motion for summary judgment, denied the

Board’s cross-motion for summary judgment, and directed the Board to “recalculate WPAS’s

annual withdrawal liability payment using $2.95 per hour rather than $3.245 per hour as the

highest contribution rate permitted under . . . 29 U.S.C. § 1399(c)(1)[.]” (Roller Decl. Ex. C, at

10.)

The Board timely filed the present action seeking to vacate the arbitrator’s award. See 29

U.S.C. § 1401(b)(2) (“Upon completion of the arbitration proceedings in favor of one of the

parties, any party thereto may bring an action . . . in an appropriate United States district court in

accordance with section 1451 of this title to enforce, vacate, or modify the arbitrator’s award.”).

5 Section 1401(a)(1) provides that “[a]ny dispute between an employer and the plan

sponsor of a multiemployer plan concerning a determination made under sections 1381 through

1399 of this title shall be resolved through arbitration.” 29 U.S.C. § 1401(a)(1).

ANALYSIS

I. STANDARD OF REVIEW

“The clear authorization of 29 U.S.C. § 1401(b)(2) for judicial review ‘to enforce, vacate,

or modify the arbitrator’s award’ gives [the] court a right to review an arbitrator’s legal rulings.”

Trs. of Amalgamated Ins. Fund v. Geltman Indus., Inc., 784 F.2d 926, 928 (9th Cir. 1986) (citing

Republic Indus. v. Teamsters Joint Council, 718 F.2d 628, 641 (4th Cir. 1983)). An arbitrator’s

factual findings are “presumed correct,” but the court “may review de novo all conclusions of

law.” Id. (citing Bd. of Trs. v. Thompson Bldg. Materials, Inc., 749 F.2d 1396, 1405-06 (9th Cir.

1984)). “Statutory interpretation is a question of law subject to de novo review.” Id. (citation

omitted).

II. DISCUSSION

The question presented is whether the arbitrator erred by concluding that it was improper

for the Board to include the 10 percent surcharge in calculating WPAS’s annual withdrawal

liability payment. WPAS correctly notes that every court to address the issue has held, as the

arbitrator did here, that the highest contribution rate should not include the PPA surcharge. See,

e.g., C&S Wholesale, 802 F.3d at 543-47 (concluding that the district court “correctly held that

the 10 percent surcharge should not be included in [the employer’s] annual payment of its

withdrawal liability”); Am. B.D. Co. v. Local 863 Int’l Bhd. of Teamsters Pension Plan, No. 13-

3699 (KSH) (CLW), 2016 WL 287081, at *2 (D. N.J. Jan. 2, 2016) (applying C&S Wholesale

and affirming arbitrator’s award based on the defendant’s concession that “the Third Circuit’s

decision ‘authoritatively decides the question of whether the Pension Fund may, pursuant to 29

U.S.C. § 1085(e)(7), collect a ten percent (10%) surcharge on American B.D. Company’s

quarterly withdrawal liability payments, and has answered that question in the negative’”). As

explained below, the Court finds that the arbitrator correctly applied the law here.

A. Annual Payment Calculation

1. Statutory Interpretation

The Court’s review of the arbitrator’s decision requires it to interpret several ERISA

provisions. “In ERISA cases, ‘[a]s in any case of statutory construction, [the Court’s] analysis

begins with the language of the statute. And where the statutory language provides a clear

answer, it ends there as well.’” Harris Trust & Sav. Bank v. Salomon Smith Barney, Inc., 530

U.S. 238, 254 (2000) (ellipses omitted) (quoting Hughes Aircraft Co. v. Jacobson, 525 U.S. 432,

438 (1999)). The Court’s analysis begins with the assumption that the statutory language’s

ordinary meaning accurately expresses the legislative purpose. See Park ‘N Fly, Inc. v. Dollar

Park & Fly, Inc., 469 U.S. 189, 194 (1985) (“Statutory construction must begin with . . . the

assumption that the ordinary meaning of that language accurately expresses the legislative

purpose.”).

It is undisputed that WPAS completely withdrew from the Fund, that WPAS incurred

withdrawal liability in the amount of $24,436,947, and that WPAS elected to amortize the debt in

equal annual payments, pursuant to 29 U.S.C. § 1399(c)(1). What is disputed is whether the

Board properly calculated WPAS’s annual payments. Section 1399(c)(1)(C)(i) sets forth a two-

part formula for calculating the amount of the annual payments:

[T]he amount of each annual payment shall be the product of—

(I) the average annual number of contribution base units for the

period of 3 consecutive plan years, during the period of 10

consecutive plan years ending before the plan year in which the

withdrawal occurs, in which the number of contribution base units

for which the employer had an obligation to contribute under the

plan is the highest, and

(II) the highest contribution rate at which the employer had an

obligation to contribute under the plan during the 10 plan years

ending with the plan year in which the withdrawal occurs.

29 U.S.C. § 1399(c)(1) (emphasis added). As discussed, § 1392(a) defines “obligation to

contribute” as an obligation “arising (1) under one or more collective bargaining (or related)

agreements, or (2) as a result of a duty under applicable labor-management relations law.” 29

U.S.C. § 1392(a).

2. “Obligation to Contribute”

The parties dispute whether the “highest contribution rate at which the employer had an

obligation to contribute under the plan” includes the 10 percent surcharge that the PPA imposes

on an employer as a result of the plan reaching critical status.6 The plain language of section

1399 instructs that the PPA surcharge is not part of the annual payment calculation unless (1) the

surcharge “aris[es]” under the CBA or “as a result of a duty under applicable labor-management

relations law,” and (2) the surcharge is part of the “contribution rate.” See C&S Wholesale, 802

F.3d at 543-45 (addressing “whether ‘the highest contribution rate at which the employer had an

obligation to contribute’ includes the 10 percent surcharge,” and focusing on whether “the

surcharge arises under either the CBA[] or an ‘applicable labor-management relations law’” and

the “question [of] whether surcharges are part of contribution rates”).

a. “Arising Under” a Collective Bargaining Agreement

The Court first addresses whether the PPA surcharge arises under the CBA. Congress did

not define what “arising . . . under” means in § 1392(a). To determine the plain meaning of the

language, the Court may consult dictionary definitions. See Transwestern Pipeline Co., LLC v.

17.19 Acres of Prop. Located in Maricopa Cty., 627 F.3d 1268, 1270 (9th Cir. 2010) (“When

determining statutory meaning, we look first to the plain meaning of the text. Unless otherwise

6 The Ninth Circuit has not yet had the opportunity to address this issue. (See Pl.’s Mot.

Summ. J. at 1, “This is a case of first impression in the Ninth Circuit”; Def.’s Resp. & Cross-

Mot. Summ. J. at 6-7, referring the Court to “every federal judge known to have considered the

issue,” and citing only cases from the Third Circuit; Roller Decl. Ex. B at 5, Ex. C at 5-6,

reflecting that the arbitrator made the same observation).

defined, words will be interpreted as taking their ordinary, contemporary, common meaning.

When determining the plain meaning of language, we may consult dictionary definitions.”)

(citations, quotation marks, and brackets omitted). The Oxford English Dictionary defines

“arising” as “‘occurring as the result of’ or ‘originating.’” Luar Music Corp. v. Universal Music

Grp., Inc., No. 09-2263, 2011 WL 13078375, at *3 (D. P.R. July 29, 2011) (brackets omitted)

(quoting Oxford English Dictionary (2d ed 1997)). The Supreme Court has similarly explained

that “the common usage of the word ‘arise’ . . . mean[s] ‘come into being; originate’ or ‘spring

up.’” Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 (2004) (quoting the Oxford English

Dictionary and Black’s Law Dictionary).

The PPA surcharge did not originate from, or come into being as a result of, the CBA.

Rather, the surcharge originated from, and came into being as a result of, Congress’ enactment of

the PPA, the statute that created the surcharge and defined the circumstances under which the

surcharge applies. See Bd. of Trs. of IBT Local 863 Pension Fund v. C&S Wholesale Grocers

Inc./Woodbridge Logistics LLC, 5 F. Supp. 3d 707, 721 (D. N.J. 2014) (“An automatic employer

surcharge arises not under a CBA, but under [the PPA] . . . when the necessary conditions are

met. [The PPA] simply states that the value of an automatic employer surcharge . . . is informed

by the employer’s CBAs; it does not magically amend the terms of those CBAs.”).

The Board argues that “WPAS had an obligation to contribute an additional 10% as a

surcharge in and after 2010 solely as a result of its agreement in the CBA to be a contributing

employer.” (Pl.’s Mot. Summ. J. at 13.) The Court disagrees. Had Congress not enacted the PPA

in 2006 and imposed a surcharge on an employer when a plan reaches “critical status,” as

defined by the PPA, WPAS would not have incurred a surcharge based solely on its status as a

contributing employer under the CBA.

In summary, the Court concludes that WPAS’s obligation to pay the PPA surcharge did

not arise under its CBA. See CVS Health Corp. v. Vividus, LLC, 878 F.3d 703, 706 (9th Cir.

2017) (“If the language has a plain meaning or is unambiguous, the statutory interpretation

inquiry ends there.”).

b. Arising “As a Result of a Duty Under Applicable Labor-

Management Relations Law”

Under § 1392(a)(2), an “obligation to contribute” may also arise “as a result of a duty

under applicable labor-management relations law.” 29 U.S.C. § 1392(a). The Board cites no

authority to support its argument that the PPA qualifies as “applicable labor-management

relations law.” (Pl.’s Mot. Summ. J. at 20-21.) Rather, courts have consistently interpreted

“applicable labor-management relations law” to mean the National Labor Relations Act

(“NLRA”). See, e.g., Laborers Health and Welfare Tr. Fund for N. Cal. v. Advanced Lightweight

Concrete Co., Inc., 484 U.S. 539, 545-46 (1988) (holding that the “obligation to contribute”

under ERISA “is defined for the purposes of the withdrawal liability portion of the statute in

language that unambiguously includes both the employer’s contractual obligations and any

obligation imposed by the NLRA” and noting “[t]hat definition is significant because it

demonstrates that Congress was aware of the two different sources of an employer’s duty to

contribute to covered plans”); see also I.A.M. Nat’l Pension Fund, Ben. Plan C v. Schulze Tool

and Die Co., Inc., 564 F. Supp. 1285, 1296 (N.D. Cal. 1983) (noting that the NLRA is “the most

obvious meaning” of the phrase “applicable labor-management relations law” as used in 29

U.S.C. § 1392(a)).

In summary, the Court finds that WPAS’s obligation to pay the PPA surcharge did not

arise as a result of its duties under any applicable labor-management relations law, and therefore

concludes that WPAS did not have an “obligation to contribute” the PPA surcharge under 29

U.S.C. § 1392(a).

3. “Highest Contribution Rate”

Even if the PPA surcharge arose under the CBA or as the result of a duty under labor-

management relations law, the PPA surcharge may not be included in the annual payment

calculation unless it is also part of WPAS’s “highest contribution rate.” See C&S Wholesale, 802

F.3d at 544 (“Even if . . . the surcharge arises under the PPA and assuming that the PPA is an

‘applicable labor-management relations law,’ the surcharge cannot be added to [the employer’s

equal] annual payments unless it is part of the highest contribution rate.”); see also 29 U.S.C. §

1399(c)(1) (specifying that the employer’s annual payments are based on the “highest

contribution rate” at which the employer had an “obligation to contribute” under the plan).

Congress did not define “contribution rate” in § 1399(c)(1). See C&S Wholesale, 802

F.3d at 544 (“‘Contribution rate’ is widely used throughout the statute, but never explicitly

defined.”). Thus, in determining the plain meaning of the language, it is appropriate for the Court

to consult common dictionary definitions. See Transwestern, 627 F.3d at 1270 (“‘When

determining the plain meaning of [undefined] language, we may consult dictionary definitions.’”

(quoting Af–Cap, Inc. v. Chevron Overseas (Congo) Ltd., 475 F.3d 1080, 1088 (9th Cir. 2007)));

see also Animal Legal Def. Fund v. U.S. Dep’t of Agric., 933 F.3d 1088, 1093 (9th Cir. 2019)

(“When a statute does not define a term, we typically give the phrase its ordinary meaning. To

determine the ordinary meaning of a word, ‘consulting common dictionary definitions is the

usual course.’”) (citation and quotation marks omitted).

Webster’s Dictionary defines “contribution” as “the act of contributing,” and the verb

“contribute” as “to give or to grant in common with others (as to a common fund or to a common

purpose): give (money or other aid) for a specified object.” In re HLM Corp., 165 B.R. 38, 40

(Bankr. D. Minn. 1994) (citation and quotation marks omitted). These definitions “impl[y] some

sort of voluntary act.” Id.; see also Municipality of Mt. Lebanon v. Gillen, 151 A.3d 722, 729

(Pa. Commw. Ct. 2016) (reflecting that a more recent version of Webster’s Dictionary defines

“contribution” as “something that is contributed : a sum or thing voluntarily contributed”).

Ballantine’s Law Dictionary defines “rate” as “a unit by which a calculation is made.” Med.

Malpractice Ins. Ass’n v. Cmty. Gen. Hosp. of Sullivan Cty., 423 N.Y.S.2d 666, 668 (N.Y. App.

Div. 1980) (citation and quotations omitted); see also Fisher & Co., Inc. v. Dep’t of Treasury,

769 N.W.2d 740, 744 (Mich. Ct. App. 2009) (noting that “rate” means “the amount of a charge

or payment with reference to some basis of calculation”) (citation omitted).

Taken together, these definitions support that the ordinary meaning of “contribution rate”

is a unit used to calculate an amount that someone has agreed to give. As relevant here, WPAS

“agreed” in the CBA to a “contribution rate” of $2.95. (Miller Decl. Ex. 1, at 3, 18.) A statutorily

mandated surcharge does not fit within the ordinary meaning of “contribution rate.” See In re

HLM Corp., 165 B.R. at 40 (stating that a payment was not a “contribution” because it was

“statutorily mandated,” not “voluntary”); cf. C&S Wholesale, 802 F.3d at 545 (explaining that

“contribution rates are set by CBAs while surcharges are set by statute[,]” and “[n]othing in the

statutory scheme suggests that surcharges, when applicable, amend the underlying terms of

employers’ CBAs” and “[y]et, that is the result of considering surcharges as [part of]

contribution rates set in the CBAs”).

The broader context of the statutory scheme also supports the conclusion that the PPA

surcharge is not part of the “contribution rate.” See generally Geo-Energy Partners-1983 Ltd. v.

Salazar, 613 F.3d 946, 956 (9th Cir. 2010) (“‘The plainness or ambiguity of statutory language is

determined by reference to the language itself, the specific context in which the language is used,

and the broader context of the statute as a whole.’” (quoting Robinson v. Shell Oil Co., 519 U.S.

337, 340-41 (1997))). On its face, the PPA requires a surcharge based on a percentage of the

employer’s contributions, not the employer’s contribution rate. See 29 U.S.C. § 1085(e)(7)(A)

(obligating employers to pay a surcharge based on “10 percent of the contributions otherwise so

required” under the CBA); id. § 1085(e)(7)(B) (requiring that surcharges “due and payable on

the same schedule as the contributions on which the surcharges are based”).

“Contribution” and “contribution rate” are consistently treated as distinct terms under

ERISA. C&S Wholesale, 802 F.3d at 545 (“A close reading of ERISA further reinforces our

conclusion that contributions are not to be conflated with contribution rates.”). The contribution

rates set forth in the CBA determine the total value of the employer’s contributions to the plan:

“[T]he ‘contribution rates’ set forth in an employer’s CBAs with a multiemployer pension plan

are distinct from the ‘contributions’ that the employer generally pays to the plan. Although the

contribution rates help determine the total value of the contributions, the contributions do not

determine the contribution rates.” C&S Wholesale, 5 F. Supp. 3d at 722; see also C&S

Wholesale, 802 F.3d at 544 (stating that “[i]t is clear . . . as a matter of common sense that

contributions are distinct from contribution rates”); see also Partial Final Award (Roller Decl.

Ex. C at 7-8) (concluding that the Board “conflates ‘contributions’ with ‘contribution rates’ in

contravention of the directions given in the Third Circuit and other authorities”).

For all of these reasons, the Court concludes that the PPA surcharge is not part of

WPAS’s “highest contribution rate,” and therefore cannot be included in the calculation of

WPAS’s annual payments.

4. Legislative History

The Board’s argument that the PPA surcharge must be included in calculating WPAS’s

annual payment is based in large part on the passage of the MPRA in 2014. (Pl.’s Suppl. Br. at 1-

8.) As discussed above, the MPRA amended section 1085, and the statute now explicitly

provides that “automatic surcharges [shall] ‘be disregarded . . . in determining the highest

contribution rate under [29 U.S.C. § 1399(c)].’” C&S Wholesale, 802 F.3d at 546 (quoting 29

U.S.C. § 1085(g)(2) (2014)). The Joint Committee on Taxation’s report explained the provision:

The provision consolidates the present-law rules for the

disregard of benefit reductions and employer surcharges in

determining withdrawal liability with respect to a multiemployer

plan in critical status. In addition, under the provision, employer

surcharges are disregarded in determining an employer’s highest

previous rate of contribution to the plan. The provision also adds

new rules relating to the disregard of contribution increases under a

funding improvement plan in the case of a multiemployer plan in

endangered status or a rehabilitation plan in the case of a

multiemployer plan in critical status.

Under the new rules, if an increase in contribution rate or

other increase in contribution requirements . . . is required or made

to enable a multiemployer plan to meet the requirements of a

funding improvement or rehabilitation plan, the increase is

generally disregarded in determining the allocation of unfunded

vested benefits to an employer and an employer’s highest

contribution rate.

. . . .

The provision is effective with respect to . . . surcharges the

obligation for which accrues on or after December 31, 2014.

(Pl.’s Suppl. Br. Ex. 6, at 5) (emphasis added). Relying on this explanation from the Joint

Committee on Taxation, the Board argues that “[g]iven Congress’s action in 2014 to exclude

surcharges that accrue after December 31, 2014 from [an employer’s] withdrawal liability

payment computation, the only plausible construction of the statute is that surcharges were not

excluded from the ‘highest contribution rate’ in the withdrawal liability payment computation

before the 2014 MPRA amendment.” (Pl.’s Suppl. Br. at 1-2.)

The Court is not persuaded by the Board’s argument. First, the relevant statutory

language is plain and unambiguous, and therefore it is inappropriate for the Court to consider

legislative history, policy considerations, or other extrinsic material. See CVS Health Corp., 878

F.3d at 706 (“If the language has a plain meaning or is unambiguous, the statutory interpretation

inquiry ends there.”); Kwai Fun Wong v. Beebe, 732 F.3d 1030, 1042 (9th Cir. 2013)

(“[D]ispositively, it is improper to consider legislative history in this instance. ‘[T]he

authoritative statement is the statutory text, not the legislative history or any other extrinsic

material.’ Consequently, ‘when the statute’s language is plain, the sole function of the courts—at

least where the disposition required by the text is not absurd—is to enforce it according to its

terms.’” (quoting Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005) and

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000))).

Even if the Court were to consider legislative history, it would consider the legislative

history of the statute the Court must interpret, i.e., the MPPAA, enacted in 1980, or the PPA,

enacted in 2006, not the intent of a Congress enacting subsequent legislation. The Supreme Court

has cautioned that courts must “begin with the oft-repeated warning that ‘the views of a

subsequent Congress form a hazardous basis for inferring the intent of an earlier one.’”

Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 117 (1980) (quoting

United States v. Price, 361 U.S. 304, 313 (1960)); see also Slaven v. BP Am., Inc., 973 F.2d

1469, 1475 (9th Cir. 1992) (stating that “post-enactment legislative history is generally

considered to be of minimal assistance in interpreting a statute,” and that “‘courts avoid deducing

the intent behind one act of Congress from the implication of a second act passed years later’”)

(citation omitted).

The Court declines to draw any conclusions about the proper interpretation of then-

existing law at the time Congress enacted the MPRA, as it is the function of the courts, not a

subsequent Congress, to interpret the meaning of a statute. See C&S Wholesale, 802 F.3d at 546

(explaining that “‘[i]t [remains] the function of the courts and not the Legislature . . . to say what

an enacted statute means’” (quoting Pierce v. Underwood, 487 U.S. 552, 566 (1988))); id.

(“[B]ecause of the dearth of legislative history for the MPRA and lack of clear statutory

language, it would be a hazardous venture for us to draw any conclusions from the enactment of

the MPRA.”).

Even if the Court were to consider the legislative history of the MPRA, it would be just

as reasonable to view the MPRA as clarifying, rather than repealing, existing law. See Pl.’s

Suppl. Br. Ex. 6, at 5 (describing the provision regarding employer surcharges without referring

to the provision as a “new rule,” as the committee report described other provisions of the

MPRA); see also Roller Decl. Ex. A-7, at 30 (reflecting the arbitrator’s conclusion that “[t]here

has been no showing on this record of any Legislative History regarding MPRA that reflects an

understanding by Congress that the changes were other than clarifying in nature” and “there has

been no showing of any clear Congressional understanding or intent as to whether, prior to

MPRA becoming effective, PPA surcharges were to be treated as part of a contributing

For all of these reasons, the Court finds that the arbitrator correctly concluded that the

Board should not have included the PPA surcharge in calculating WPAS’s annual withdrawal

liability payment.

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CONCLUSION

For the reasons stated, the Court AFFIRMS the arbitrator’s finding that $2.95 was

WPAS’s “highest contribution rate,” and therefore DENIES the Board’s motion for summary

judgment (ECF No. 14) and GRANTS WPAS’s cross-motion for summary judgment (ECF No.

16).

IT IS SO ORDERED.

DATED this 19th day of May, 2020.

STACIE F. BECKERMAN

United States Magistrate Judge