Eighth Circuit Holds Cumulative Headcount Method Governs “Substantially All” Inquiry Under MPPAA’s Building and Construction Industry Exemption, Affirming GE’s Exemption from Withdrawal Liability

In General Electric Co. v. Boilermaker-Blacksmith National Pension Trust, No. 25-1442, — F.4th —-, 2026 WL 1466654 (8th Cir. May 26, 2026), the Eighth Circuit Court of Appeals affirmed the district court’s judgment upholding an arbitrator’s determination that General Electric Company (GE) qualified for the building and construction industry exemption (BCI) to withdrawal liability under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), and therefore owed no withdrawal liability to the Boilermaker-Blacksmith National Pension Trust (the Fund) on either of the Fund’s partial withdrawal assessments.

The Fund, a multiemployer pension plan covering primarily building and construction industry employees, brought two partial withdrawal liability assessments against GE. The first, referred to as the 70% Decline Claim, asserted that GE experienced a 70% decline in contribution base units over three consecutive years compared to the average of the two highest years in the preceding five-year period, resulting in approximately $205 million in claimed withdrawal liability. See 29 U.S.C. § 1385(b)(1)(A). The second, the Chattanooga Claim, sought an additional $22 million as a “bargaining-out” partial withdrawal based on GE’s closure of a manufacturing facility. See 29 U.S.C. § 1385(b)(2)(A)(i). GE disputed both assessments, asserting eligibility for the BCI, and initiated arbitration under 29 U.S.C. § 1401(a). The arbitrator ruled for GE, and the district court agreed, finding the statutory language ambiguous and adopting GE’s proposed headcount method.

The narrow issue on appeal was the method by which to count GE’s employees at its three relevant entities (APCom Power, Alstom Power, Inc., and Atlantic Plant Maintenance) to determine whether “substantially all” of them performed work in the building and construction industry under 29 U.S.C. § 1383(b)(1)(A). All of GE’s employees at these entities were boilermakers, divided into field workers (who repair and construct customers’ boilers and qualify as building and construction industry employees) and shop workers (who manufacture boiler components and do not qualify). Field workers generally had dramatically shorter tenures than shop workers because they typically returned to the union hall after a project, while shop workers tended to work consistently for the same employer over longer periods. The parties presented only two counting options: a monthly headcount method favored by the Fund, under which a “snapshot” is taken each month and field workers must exceed 85% in most months; and a cumulative headcount method favored by GE, under which all field workers and shop workers employed during the lookback period are added together and field workers must exceed 85% of that total. The parties stipulated that GE would not qualify under the monthly method but would qualify under the cumulative method.

The court began with the statute’s plain language, which exempts an employer from withdrawal liability if “substantially all the employees with respect to whom the employer has an obligation to contribute under the plan perform work in the building and construction industry.” 29 U.S.C. § 1383(b)(1)(A). The court observed that the statute is silent on how to count employees and that multiple counting methods would not contradict the statutory text. Because the provision is susceptible to more than one reasonable interpretation, the court held it ambiguous and proceeded to independently interpret it under Loper Bright Enterprises v. Raimondo, 603 U.S. 369 (2024), using statutory structure, legislative history, congressional purposes, and general principles of law.

Turning to congressional intent, the court emphasized that Congress recognized two key attributes of the building and construction industry when crafting the BCI: that work is generally tied to a geographic area rather than a particular employer, so an employer’s ceasing work in an area normally does not remove jobs from the plan’s contribution base; and that the industry features mobility of both employers and employees and intermittent employment. The court concluded that, while neither proposed method was a precise fit, the cumulative headcount method was more consistent with the statute’s purpose and hewed more closely to congressional intent. Given the arbitrator’s factual finding, entitled to a rebuttable presumption of correctness under 29 U.S.C. § 1401(c), that GE clearly and consistently engaged in the construction industry and did not exit it during the lookback period, the cumulative method was better able to accommodate natural fluctuations inherent in building and construction employment.

The court rejected the Fund’s argument that the monthly headcount method was supported by the parties’ collective bargaining agreement, which required monthly contributions, and by the present-tense phrasing of the statute referring to employees with respect to whom the employer “has an obligation to contribute.” The court reasoned that the employer’s obligation to contribute extends to all hours the relevant employees work, and that the parties’ decision to schedule monthly contributions does not alter that obligation. The court noted that a different factual record might warrant a different counting method, and that nothing prevents a fund and an employer from contractually agreeing on a method to determine BCI eligibility. On the record before it, GE’s preferred cumulative headcount method was less arbitrary and more faithful to the statute and the congressional intent behind it. Because the Fund acknowledged that its Chattanooga Claim rose and fell with its 70% Decline Claim, the court did not separately address the Chattanooga Claim. The Eighth Circuit affirmed.