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- SUPREME COURT OF THE UNITED STATES
- --------
- No. 91-904
- --------
- CONCRETE PIPE AND PRODUCTS OF CALIFORNIA,
- INC., PETITIONER v. CONSTRUCTION LABORERS
- PENSION TRUST FOR SOUTHERN CALIFORNIA
- on writ of certiorari to the united states court
- of appeals for the ninth circuit
- [June 14, 1993]
-
- Justice O'Connor, concurring.
- I join all of the Court's opinion, except for the statement
- that petitioner cannot -rel[y] on ERISA's original limita-
- tion of contingent liability to 30% of net worth.- Ante, at
- 44. The Court's reasoning is generally consistent with my
- own views about retroactive withdrawal liability, which I
- explained in Connolly v. Pension Benefit Guaranty Corpo-
- ration, 475 U. S. 211, 228-236 (1986) (O'Connor, J.,
- concurring), and which I need not restate at length here.
- In essence, my position is that the -imposition of this type
- of retroactive liability on employers, to be constitutional,
- must rest on some basis in the employer's conduct that
- would make it rational to treat the employees' expecta-
- tions of benefits under the plan as the employer's respon-
- sibility.- Id., at 229.
- The Court does not hold otherwise. Rather, it reasons
- that, although -the withdrawal liability assessed against
- Concrete Pipe may amount to more . . . than the share
- of the Plan's liability strictly attributable to employment
- of covered workers at Concrete Pipe,- this possibility -was
- exactly what Concrete Pipe accepted when it joined the
- Plan.- Ante, at 36. I agree that a withdrawing employer
- can be held responsible for its statutory -share- of unfunded
- vested benefits if the employer should have anticipatedthe prospect of withdrawal liability when it joined the
- plan. In such a case, the -basis in the employer's conduct
- that would make it rational to treat the employees'
- expectations of benefits under the plan as the employer's
- responsibility- would be the very act of joining the plan.
- I am not sure that petitioner did in fact -accept- the
- prospect of withdrawal liability when it joined the Con-
- struction Laborers Pension Trust in 1976. As of that
- date, Congress had not yet promulgated the Multiemployer
- Pension Plan Amendments Act of 1980 (MPPAA); the kind
- of -withdrawal liability- imposed on petitioner did not yet
- exist. Although the Employee Retirement Income Security
- Act of 1974 (ERISA) was in effect, and did create a
- contingent liability for the employer that withdrew from
- a multiemployer defined benefit plan, such liability was
- limited to 30% of the employer's net worth. See 29
- U. S. C. 1364, 1362(b)(2) (1976 ed.). Petitioner's
- withdrawal liability under the MPPAA amounts to 46%
- of its net worth. See ante, at 43. In addition, the
- Construction Laborers Pension Trust apparently is a
- hybrid -Taft-Hartley- plan, which provides for fixed
- employee benefits and fixed employer contributions. It
- remains an open question whether hybrid Taft-Hartley
- plans are indeed -defined benefit- rather than -defined
- contribution- plans, and therefore subject to withdrawal
- liability. See Connolly, supra, at 230, 232-235
- (O'Connor, J., concurring). We do not decide that ques-
- tion today. See ante, at 3, 40, n. 27.
- But petitioner has not argued that its withdrawal
- liability, even if otherwise permissible, cannot exceed the
- 30% cap that was in effect in 1976. Nor has petitioner
- claimed that the Construction Laborers Pension Trust is
- a defined contribution plan. In short, petitioner has failed
- to adduce the two features of this case that might have
- demonstrated why it did not -accept- the prospect of full
- withdrawal liability when it joined the Construction
- Laborers Pension Trust. I therefore agree with the
- Court's result as well as most of its reasoning.
- I cannot, however, agree that petitioner is precluded
- from -rely[ing] on ERISA's original limitation of contingent
- liability to 30% of net worth.- Ante, at 44. The Court
- seizes upon a passing reference in petitioner's brief, see
- ante, at 44, n. 28, to justify issuing this unnecessary
- statement about a difficult issue that the parties essen-
- tially have ignored. I would not decide without adversary
- briefing and argument whether ERISA's 30% cap might
- prevent retroactive withdrawal liability above 30% of the
- employer's net worth for an employer that joined a
- multiemployer plan after the passage of ERISA but before
- the passage of the MPPAA. I also note that the Court's
- opinion should not be read to imply that employers may
- be subjected to retroactive withdrawal liability simply
- because -pension plans [have] long been subject to federal
- regulation.- Ante, at 43. Surely the employer that joined
- a multiemployer plan before ERISA had been promul-
- gated-before Congress had made employers liable for
- unfunded benefits-might have a strong constitutional
- challenge to retroactive withdrawal liability. The issue is
- not presented here-again, petitioner joined the Construc-
- tion Laborers Pension Trust after the passage of
- ERISA-and the Court does not address it. It remains
- to be resolved in a future case.
-