Ninth Circuit Holds Asbestos Abatement Contractors Qualify for MPPAA “Building and Construction Industry” Withdrawal Liability Exception

In Walker Specialty Construction, Inc. v. Board of Trustees of the Construction Industry and Laborers Joint Pension Trust for Southern Nevada, et al., No. 24-1560, —F.4th—-, 2026 WL 21743 (9th Cir. Jan. 5, 2026), the Ninth Circuit affirmed summary judgment in favor of an employer, holding that asbestos abatement work constitutes work in the “building and construction industry” under the Multiemployer Pension Plan Amendments Act (“MPPAA”) and therefore qualifies for the statute’s withdrawal liability exception.

Walker Specialty Construction, Inc. performed asbestos abatement and demolition work at building sites throughout southern Nevada and contributed to a multiemployer pension plan administered by the Construction Industry and Laborers Joint Pension Trust. After Walker ceased operations in the jurisdiction in 2019, the Trust assessed approximately $2.9 million in withdrawal liability. Walker challenged the assessment, asserting that it qualified for the MPPAA’s “building and construction industry” exception under 29 U.S.C. § 1383(b).

The parties agreed that the pension plan primarily covered construction industry employees and that Walker did not resume covered work within five years of withdrawing. The sole dispute on appeal was whether asbestos abatement qualifies as work in the “building and construction industry,” a term left undefined by the MPPAA.

The Trust advanced a narrow interpretation of the statutory language, arguing that the “building and construction industry” exception applies only to employers engaged in the erection of new structures. According to the Trust, asbestos abatement involves tearing down or removing existing materials rather than “forming, making, or building” structures and therefore falls outside the scope of the exception. The Trust further argued that because the exception is a statutory carve-out from withdrawal liability, it must be construed narrowly, and that importing definitions from labor law improperly expanded the exception beyond Congress’s intent.

The Ninth Circuit rejected each of these arguments. Because the MPPAA does not define “building and construction industry,” the court looked to whether the term had an established meaning at the time Congress enacted the statute. The court noted that Congress had previously used the identical phrase in only one other statute—the Labor Management Relations Act—and that the National Labor Relations Board had, for decades, given the term a comprehensive and settled definition in that context.

Under longstanding NLRB precedent, the “building and construction industry” encompasses not only the erection of new buildings, but also maintenance, repair, alteration, and demolition work that is integral to a structure’s usability. The Ninth Circuit concluded that Congress’s use of identical language in the MPPAA, without disclaiming or narrowing that settled meaning, demonstrated an intent to incorporate the NLRB’s definition into ERISA’s withdrawal liability framework.

The court further rejected the Trust’s argument that reliance on NLRB precedent was inappropriate because the MPPAA addresses pension liability rather than labor relations. The Ninth Circuit emphasized that Congress enacted the construction industry exception in both statutes for the same reason: the uniquely transient nature of employment and contracting in the construction industry. Because both exceptions were designed to account for that transience, applying a consistent definition across statutes was both logical and consistent with congressional intent.

The Trust also argued that recent Supreme Court precedent eliminating Chevron deference precluded reliance on agency interpretations. The Ninth Circuit disagreed, explaining that it was not deferring to the NLRB’s interpretation as a matter of administrative deference, but rather applying traditional principles of statutory interpretation to conclude that Congress incorporated a well-established meaning into the MPPAA.

Finally, the court rejected the Trust’s contention that asbestos abatement work was too attenuated from construction to qualify. The Ninth Circuit emphasized that Walker’s work involved substantial structural alteration and repair, including removal of asbestos-containing walls, ceilings, roofing, and other integral building components, as well as demolition necessary to permit renovation or reconstruction. Such work, the court explained, went far beyond superficial services and closely resembled demolition work that the NLRB had long treated as construction industry activity.

Because substantially all of Walker’s employees performed asbestos abatement work that fell within the NLRB’s settled definition of the “building and construction industry,” the Ninth Circuit held that Walker satisfied the requirements of § 1383(b) and was exempt from withdrawal liability. The court affirmed the district court’s judgment ordering the Trust to refund Walker’s interim withdrawal liability payments with interest.