Assessing The Challenges Facing Multiemployer Pension Plans: Committee On Education and The Workforce

ASSESSING THE CHALLENGES FACING
MULTIEMPLOYER PENSION PLANS
HEARING
BEFORE THE
SUBCOMMITTEE ON HEALTH,
EMPLOYMENT, LABOR AND PENSIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. HOUSE
OF
REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS

SECOND SESSION
HEARING HELD IN WASHINGTON, DC, JUNE 20, 2012
Serial No. 11263

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COMMITTEE ON EDUCATION AND THE WORKFORCE

JOHN KLINE, Minnesota, Chairman
Thomas E. Petri, Wisconsin
Howard P. Buck McKeon, California
Judy Biggert, Illinois
Todd Russell Platts, Pennsylvania
Joe Wilson, South Carolina
Virginia Foxx, North Carolina
Bob Goodlatte, Virginia
Duncan Hunter, California
David P. Roe, Tennessee
Glenn Thompson, Pennsylvania
Tim Walberg, Michigan
Scott DesJarlais, Tennessee
Richard L. Hanna, New York
Todd Rokita, Indiana
Larry Bucshon, Indiana
Trey Gowdy, South Carolina
Lou Barletta, Pennsylvania
Kristi L. Noem, South Dakota
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Mike Kelly, Pennsylvania
George Miller, California,

Senior Democratic Member
Dale E. Kildee, Michigan
Robert E. Andrews, New Jersey
Robert C. Bobby Scott, Virginia
Lynn C. Woolsey, California
Ruben Hinojosa, Texas
Carolyn McCarthy, New York
John F. Tierney, Massachusetts
Dennis J. Kucinich, Ohio
Rush D. Holt, New Jersey
Susan A. Davis, California
Raul M. Grijalva, Arizona
Timothy H. Bishop, New York
David Loebsack, Iowa
Mazie K. Hirono, Hawaii
Jason Altmire, Pennsylvania
Marcia L. Fudge, Ohio
Barrett Karr, Staff Director

Jody Calemine, Minority Staff Director
SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS

DAVID P. ROE, Tennessee, Chairman
Joe Wilson, South Carolina
Glenn Thompson, Pennsylvania
Tim Walberg, Michigan
Scott DesJarlais, Tennessee
Richard L. Hanna, New York
Todd Rokita, Indiana
Larry Bucshon, Indiana
Lou Barletta, Pennsylvania
Kristi L. Noem, South Dakota
Martha Roby, Alabama
Joseph J. Heck, Nevada
Dennis A. Ross, Florida
Robert E. Andrews, New Jersey

Ranking Member
Dennis J. Kucinich, Ohio
David Loebsack, Iowa
Dale E. Kildee, Michigan
Ruben Hinojosa, Texas
Carolyn McCarthy, New York
John F. Tierney, Massachusetts
Rush D. Holt, New Jersey
Robert C. Bobby Scott, Virginia
Jason Altmire, Pennsylvania
(II)
C O N T E N T S
Page
Hearing held on June 20, 2012 ...............................................................................

Statement of Members:
Andrews, Hon. Robert E., ranking member, Subcommittee on Health,
Employment, Labor and Pensions ...............................................................
Roe, Hon. David P., Chairman, Subcommittee on Health, Employment,
Labor and Pensions ......................................................................................
Prepared statement of ...............................................................................
Statement of Witnesses:
Henderson, Scott, treasurer and vice president, the Kroger Co. ..................
McReynolds, Judy, president and chief executive officer, Arkansas Best
Corp. ...............................................................................................................
Ring, John F., partner, Morgan, Lewis & Bockius LLP ................................
Sander, Michael M., administrative manager, Western Conference of
Teamsters Pension Plan ...............................................................................
Shapiro, Josh, deputy director for research and education, National Coordinating Committee for Multiemployer Plans .........................................
Additional Submissions:
Mr. Andrews, letter, dated June 20, 2012, from Construction Employers
for Responsible Pension Reform caucus ......................................................
Chairman Roe:
Letter, dated July 3, 2012, from Construction Employers for Responsible Pension Reform caucus .................................................................
Prepared statement of the U.S. Chamber of Commerce ........................
(III)
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ASSESSING THE CHALLENGES FACING

MULTIEMPLOYER PENSION PLANS
Wednesday, June 20, 2012
U.S. House of Representatives
Subcommittee on Health, Employment, Labor and Pensions
Committee on Education and the Workforce
Washington, DC
The subcommittee met, pursuant to call, at 10:01 a.m., in room

2175, Rayburn House Office Building, Hon. David P. Roe [chairman
of the subcommittee] presiding.
Present: Representatives Roe, Wilson, Thompson, Rokita,
Bucshon, Noem, Roby, Andrews, Kildee, McCarthy, Tierney, and
Holt.
Staff present: Andrew Banducci, Professional Staff Member;
Katherine Bathgate, Deputy Press Secretary; Adam Bennot, Press
Assistant; Casey Buboltz, Coalitions and Member Services Coordinator; Ed Gilroy, Director of Workforce Policy; Benjamin Hoog,
Legislative Assistant; Marvin Kaplan, Workforce Policy Counsel;
Brian Newell, Deputy Communications Director; Krisann Pearce,
General Counsel; Molly McLaughlin Salmi, Deputy Director of
Workforce Policy; Todd Spangler, Senior Health Policy Advisor;
Linda Stevens, Chief Clerk/Assistant to the General Counsel;
Alissa Strawcutter, Deputy Clerk; Kate Ahlgren, Minority Investigative Counsel; Aaron Albright, Minority Communications Director for Labor; Tylease Alli, Minority Clerk; Daniel Brown, Minority
Policy Associate; John DElia, Minority Staff Assistant; Jonay Foster, Minority Fellow, Labor; Brian Levin, Minority New Media
Press Assistant; Megan OReilly, Minority General Counsel; and
Michele Varnhagen, Minority Chief Policy Advisor/Labor Policy Director.
Chairman ROE. Call the meeting to order. A quorum being
present, the Subcommittee on Health, Employment, Labor, and
Pensions will come to order.
Good morning, everyone. I would like to welcome our guests and
thank our distinguished panel of witnesses for being with us today.
In a recent editorial entitled the Union Pension Bomb the Wall
Street Journal described the big trouble facing multiemployer pension plans. The editorial noted a study by the analystsat Credit
Suisse which found multiemployer pension plans are collectively
underfunded by approximately $369 billion and only a small fraction of these plans are considered stable and healthy.
(1)
2
It is important to note this study is based on a rate of return on
investments not reflecting inreflected in existing law. Some have
argued the study makes assumptions that better reflect the current
state of the multiemployer pension system and, as with any debate,
others have disagreed. Regardless of the methodologies used, this
is not the first time the challenges facing the multiemployer pension system have drawn the publics attention.
According to an analysis by the benefits consulting firm Segal,
more than 25 percent of plans are in critical status due to severe
financial deficiencies. A report by the Pension Benefit Guaranty
Corporation revealed multiemployer pensions are increasingly dependent upon the agencys financial assistance. In fact, the PBGC
projects that its future obligations to these plans totals $4.5 billion,
a 48 percent increase from previous estimates.
The corporation also expects the number of insolvent plans to
more than double over the next 5 years. Finally, there are warnings by plan managers and trustees who fear the pensions they
oversee will become insolvent in the years ahead.
While some plans have made responsible decisions to help ensure
their long-term success, an aging workforce, weak economy, investment losses, and unsustainable promises are placing a great deal
of strain on the multiemployer pension system. The resultant uncertainty is an ongoing source of angst for many workers and employers.
Some workers have little confidence the benefits they were promised will be there when they retire. And employers trying to keep
their businesses open are also trying to keep up with their growing
pension obligations.
Policymakers continue to struggle with this pension problem as
well. In 1980 changes to federal pension law were adopted, including reforms that promote greater responsibility among employers
and union officials for the promises they make to workers. More recently, the Pension Protection Act enhanced the accountability of
the multiemployer pension system, establishing classifications to
better identify a plans financial strengths and weaknesses and requiring more detailed disclosure of the plans financial status.
Despite these well-intended efforts and past attempts to provide
relief problems still exist. A number of provisions in existing law
are set to expire in 2014, which means Congress will need to take
action once again to help address the shortfalls of the multiemployer pension system. While some pension plans are financially
sound and prepared to meet their obligations, it is becoming increasingly clear the depth and breadth of the challenges facing the
system will demand significant reform.
With a deadline of 2 years it may seem like time is on our side.
However, we cannot ignore the impact this issue has right now on
the health and strength of our nations economy. Thousand of jobcreators participate in the multiemployer pension system with
more than 10 million Americans dependent on these benefits to
help provide for financial security they deserve in retirement. We
must use the months ahead to ensure we get this right.
I look forward to todays discussion and expect it will pave the
way for future conversations on this very important subject.
3
I will now recognize my distinguished colleague, Mr. Rob Andrews, the senior Democratic member of the subcommittee, for his
opening remarks?
[The statement of Chairman Roe follows:]
Prepared Statement of Hon. David P. Roe, Chairman,
Subcommittee on Health, Employment, Labor and Pensions
Good morning, everyone. I would like to welcome our guests and thank our distinguished panel of witnesses for being with us today.
In a recent editorial entitled the Union Pension Bomb, the Wall Street Journal
described the big trouble facing multiemployer pension plans. The editorial noted
a study by analysts at Credit Suisse, which found multiemployer pensions are collectively underfunded by approximately $369 billion, and only a small fraction of
these plans are considered stable and healthy.
It is important to note this study is based on a rate of return on investments not
reflected in existing law. Some have argued the study makes assumptions that better reflect the current state of the multiemployer pension system and, as with any
debate, others have disagreed. Regardless of the methodologies used, this is not the
first time the challenges facing the multiemployer pension system have drawn the
publics attention.
According to an analysis by the benefits consulting firm Segal, more than 25 percent of plans are in critical status, due to severe financial deficiencies. A report
by the Pension Benefit Guaranty Corporation reveals multiemployer pensions are
increasingly dependent upon the agencys financial assistance. In fact, PBGC
projects that its future obligations to these plans total $4.5 billiona 48 percent increase from previous estimates. The corporation also expects the number of insolvent plans to more than double over the next five years. Finally, there are the warnings by plan managers and trustees who fear the pensions they oversee will become
insolvent in the years ahead.
While some plans have made responsible decisions to help ensure their long-term
success, an aging workforce, weak economy, investment losses, and unsustainable
promises are placing a great deal of strain on the multiemployer pension system.
The resultant uncertainty is an ongoing source of angst for many workers and employers. Some workers have little confidence the benefit they were promised will be
there when they retire. And employers trying to keep their businesses open are also
trying to keep up with their growing pension obligations.
Policymakers continue to struggle with this pension problem as well. In 1980,
changes to federal pension law were adopted, including reforms that promoted
greater responsibility among employers and union officials for the promises they
make to workers. More recently, the Pension Protection Act enhanced the accountability of the multiemployer pension system, establishing classifications to better
identify a plans financial strengths and weaknesses and requiring more detailed
disclosure of the plans financial status.
Despite these well-intended efforts and past attempts to provide relief, problems
still persist. A number of provisions in existing law are set to expire in 2014, which
means Congress will need to take action once again to help address the shortfalls
of the multiemployer pension system. While some pension plans are financially
sound and prepared to meet their obligations, it is becoming increasingly clear the
depth and breadth of the challenges facing the system will demand significant reform.
With a deadline of two years, it may seem like time is on our side. However, we
cannot ignore the impact this issue has right now on the health and strength of our
nations economy. Thousands of job-creators participate in the multiemployer pension system and more than 10 million Americans depend on these benefits to help
provide the financial security they deserve in retirement. We must use the months
ahead to ensure we get this right.
I look forward to todays discussion, and expect it will pave the way to future conversations on this very important subject. I will now recognize my distinguished colleague Rob Andrews, the senior Democratic member of the subcommittee, for his
opening remarks.
Mr. ANDREWS. Thank you, Mr. Chairman. Good morning. I appreciate you calling this hearing and I appreciate the preparation
of todays witnesses.
4
One measure in Washington of how solvable a problem is is the
attendance at the hearing, and the higher the attendance the less
solvable the problem
[Laughter.]
And here is why: Many of our hearingsand it is true whether
we are in the majority or the other side is in the majorityare
rather contentious, where they are held to prove a political point,
and everybody comes because everybody wants to get into the
brawl. This is not a brawl this morning; this is a serious attempt
at understanding a serious problem so we can work together to
solve it, and I am sure that our colleagues on both sides will be
actively engaged in helping to solve that problem.
Here is the way I see the problem: It is the problem of a woman
who runs a sheet metal contracting firm and has 21 employees,
and she has been through really tough times the last 5 years as
construction has slowed and in some cases ground to a halt.
And she has got two problems here that the amount that she has
to contribute to the pension fund in which she is a part keeps going
up, which makes her less competitive to go get bids to build buildings or means that she has to pay lower wages to her present
workers in order to do soputs her in a real catch-22 situation.
That problem worsens for her as other employers go out of business
or leave the plan because every time one of them does the burden
on her gets higher and more difficult to bear, and if she thinks
about reducing her liabilities by leaving the plan it may put her
out of business because the withdraw liability is so high.
So this is about that small business person that builds hospitals,
and builds schools, and builds stores around the country who is in
real trouble to begin with, and this problem makes trouble worse.
Problem is also, you know, about a 68-year-old iron worker who
thinks that he is going to get a certain pension for as long as he
lives. And we are here to do everything we can to make sure that
that promise to him is kept, because he held up his end of the bargain. He went to work; he did his job well; he paid into the fund;
he, you know, participated in collective bargaining agreements
where he gave something up to get that pension.
And then the third person I think about this morning is the taxpayer of the United States of America, that although the demands
of multiemployer funds on the Pension Benefit Guaranty Corporation are qualitatively smaller than those of single employer plans
simply because there are so many other guarantors. Unlike a single
employer plan, where all that stands between the employer and the
taxpayer is the PBGC, the multi plans there is another layer of
protection for the taxpayer and it is that small businesswoman I
just talked about running the sheet metal contracting firm.
So those are the three people that I am worried about this morning. And I think this is a problem with a solution. These plans, depending upon how you measure their projected returns, are anywhere from 52 percent funded to something quite a bit higher than
that, but they still have some trouble and the trouble really comes
from two sources.
The first is the same economic downturn that everybody else
went throughyou know, the equity investments werent worth as
much as they were supposed to be and the money people thought
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they had in their fund they didnt have. I think we have all been
through that as individuals and families as well as businesses.
But the second problem that the multis have that is unique to
the multis is the problem the E.U. is having this morning, which
is, to make a decision you need a lot of people to vote yes. So you
see, when Honeywell or General Motors has a problem the board
of directors makes a decision, and they fix their plan one way or
the other, and off they go. But when the Western States Conference has a problem, or the Central Pennsylvania Fund has a
problem, or the Sheet Metal Contractors Fund has a problem, they
got a lot of people who have a voice in that decision. They have a
collectively bargained agreement and they have atheir word
multi means they have a multitude of employers who get a vote.
So I am not suggesting that that governance model doesnt work.
I would suggest exactly the opposite. I think it works quite well,
and I think that the multiemployer funds are an example of voluntary labor management cooperation that works very well in this
country.
But the fact of the matter is, when you have to have a lot of people agree on something it is a lot harder than when you only have
to have a few. And so the multis are in a situation where they have
suffered the same kind of economic harm that everybody else has
in the 2008 meltdown, but making hard decisions about restructuring benefits or restructuring contributions are much harder to
make when you are in that format where a lot of people have to
make a decision.
So I see our goal as considering ways that we can create or enhance a set of rules that make it possible for the trustees who run
the multiemployer funds to make the decisions they need to make
to make the funds stronger. Notice I said for them to make the
decisions. I am not in favor of us supplanting their judgment with
ours; I am not in favor of the Department of Labor or the PBGC
or this committee micromanaging those funds.
What I am in favor is creating an environment with the proper
incentives and disincentives where the trustees of the multiemployer funds will have a better environment in which to make decisions that help the lady running the sheet metal contracting firm,
the retired iron worker, and the taxpayer of the United States.
I am confident we can work together, Mr. Chairman, and get
that done. I look forward to hearing from the witnesses this morning.
Chairman ROE. Thank the ranking member, and I suspect that
you are right. The temperature in this room will be a lot lower
than it is outside today, sopursuant to Committee Rule 7(c), all
members will be permitted to submit written statements to be included in the permanent hearing record, and without objection the
hearing record will remain open for 14 days to allow such statements and other extraneous material referenced during the hearing
to be submitted for the official hearing record.
I will now introduce the witnesses. And this is a very distinguished panel.
I have read all of your testimony and itas I said, it laid out
the problem very well, just not the solution. So I appreciate you
doing that.
6
Ms. Judy R. McReynolds is the president and CEO of Arkansas
Best Corporation in Fort Smith, Arkansas.
Welcome.
Mr. Michael Sander is the administrative manager of Western
Conference of the Teamsters Pension Trust in Seattle, Washington.
Welcome.
Josh Shapiro is the deputy executive director for research and
education at the National Coordinating Committee for Multiemployer Plans in Washington, D.C.
Welcome, Mr. Shapiro.
John F. Ring is a partner with Morgan, Lewis, and Bockius LLP
in Washington, D.C.
Welcome.
And Scott M. Henderson is the vice president and treasurer of
the Kroger Company in Cincinnati, Ohio.
And before I recognize you to provide your testimony let me
briefly explain our lighting system. You have 5 minutes to present
your testimony and when you begin the light in front of you will
turn green. With 1 minute left the light will turn yellow; and when
your time is expired the light will turn red, at which point I will
ask you to wrap up your remarks. I wont cut you off in mid-sentence, but just wrap up your thoughts.
And after everyone has testified members will have 5 minutes to
ask questions. And I now will begin.
I want to thank the witnesses and begin with Ms. McReynolds.
STATEMENT OF JUDY R. MCREYNOLDS, PRESIDENT & CEO,
ARKANSAS BEST CORP.
Ms. MCREYNOLDS. Chairman Roe, Ranking Member, and distinguished members of the subcommittee, thank you for the opportunity to testify regarding the impact of multiemployer pension
plan obligations on the trucking industry.
I am the president and chief executive officer of Arkansas Best
Corporation. Our largest operating subsidiary, ABF Freight System, is based in Fort Smith, Arkansas, and has been in continuous
operation since 1923. We are one of the largest less-than-truckload
carriers in North America and have more than 10,000 employees
throughout the United States, Canada, Puerto Rico, and Mexico.
ABF has traditionally been profitable but was hit hard by the
economic downturn that began in 2007. The biggest challenge to
ABFs long-term viability is its multiemployer pension plan obligations. Unless the Congress acts, the ever increasing contribution
obligations to these plans will cause more trucking company bankruptcies and the PBGC will ultimately have to take over the funding of many plans.
ABF contributes to 25 separate multiemployer pension plans associated with the trucking industry. Many of the plans serving our
industry are either already close to insolvency or clearly headed in
that direction.
The plans are independent of both the employers and the union.
The plan trustees, half of whom are appointed by the employers,
are ERISA fiduciaries who are required to act solely in the interest
of the plan participants. If a multiemployer plan becomes insolvent
7
the PBGC is responsible for providing the assets to pay these benefits.
Contributions to multiemployer pension plans by ABF and other
employers have skyrocketed in recent years for a number of reasons, two in particular. First, these plans were established prior to
federal deregulation of the trucking industry in 1980. Deregulation
caused a fundamental shift in the economics of the industry and
thousands of trucking companies who were participants in the
these pension plans have gone out of business. Under the multiemployer system the remaining companies in the plan are effectively
responsible for the continued funding of all benefits, even for individuals they never employed.
Second, the Pension Protection Act of 2006 gives multiemployer
plan trustees little flexibility to address changed circumstances.
The act significantly increased required contributions to underfunded plans in the endangered yellow zone status and the critical
red zone status, a situation exacerbated by historically low interest
rates and investment losses due to the stock market crash in 2007
and 2008.
In 2011 ABF contributed $133 million to multiemployer plans.
Approximately 62 percent of our current contributions are made to
critical red zone plans, including Central States Pension Fund, and
another 12 percent to yellow zone status plans.
More than half of ABFs contributions to Central States Pension
Fund alone are used to fund benefits of retirees of bankrupt or
defunct companies, so-called orphan retirees. Any other multiemployer plans that we contribute to also have large numbers of orphan retirees.
Three-fourths of our employees are represented by the International Brotherhood of Teamsters and we are a party to the National Master Freight Agreement. That 5-year agreement expires
March 31, 2013. In order to comply with the requirements of PPA
applicable to red and yellow zone plans the agreement imposes a
7 percent compound annual contribution increase on ABF, which
results in a more than 40 percent increase during the 5-year term
of the agreement from the already high levels previously in effect.
AFB operates in a highly competitive industry that consists predominantly of nonunion freight transportation carriers with much
lower pension benefit costs. ABF now contributes $10.17 an hour
for pension benefits, 257 percent higher than those for average
union employers in the United States. These contributions represent 21 percent of our total compensation costs, compared to less
than 8 percent for the average union employer.
It is much worse with respect to nonunion competitors. In 2011
our average pension plan contribution for an operational employee
was $17,392, compared to $1,131 per employee for our key nonunion competitors. Thus, our retirement plan contributions are
1,437 percent higher than our nonunion competitors.
Because of its higher pension costs a smaller portion of the market is available to ABF and our market share dropped from 5.5
percent in 2004 to 4 percent in 2011, relative to our competition.
ABF is working with a number of groups to formulate multiemployer pension plan reforms that make sense for plans, active and
retired employees, and contributing employers. Further raising of
8
contribution rates will jeopardize the ability of employers to survive
and continue contributing to the plans. Plans cannot survive without contributing employers, but plan trustees have few tools to
make changes that are necessary for the long-term viability of the
plans and their contributing employers.
ABF strongly supports efforts to save the multiemployer pension
plans that its active and retired employees depend on for their retirement income. By taking action now Congress can help avert a
crisis that otherwise is almost certain to occur.
And I would be pleased to answer any questions that the members of the subcommittee have today. Thanks.
[The statement of Ms. McReynolds follows:]
Prepared Statement of Judy McReynolds, President and
Chief Executive Officer, Arkansas Best Corp.
Chairman Roe and Ranking Member and distinguished members of the Subcommittee, thank you for the opportunity to testify regarding the impact of multiemployer pension plan obligations on the trucking industry.
My name is Judy McReynolds and I am the President and Chief Executive Officer
of Arkansas Best Corporation. I am here to discuss the pension challenges faced by
our largest operating subsidiary, ABF Freight System, Inc. (ABF). ABF, which is
based in Fort Smith, Arkansas, has been in continuous operation since 1923 and
is one of the largest less than truckload (LTL) motor carriers in North America.
ABF has more than 10,000 employees and provides interstate and intrastate direct
service to more than 44,000 communities through 275 service centers in all 50
states, Canada, Puerto Rico and Mexico.
ABF is a model corporate citizen. We are consistently recognized for excellence in
safety, security and loss prevention by the American Trucking Association. We have
been named a Best Company to Sell For by Selling Power magazine for ten consecutive years. We have been a named Top 125 Training Organization by Training
magazine for the last three years. In addition, we currently have three Americas
Road Team Captains, and have had at least one driver representative on this team
every year since the team was established in 1995.
ABF has traditionally been profitable but was hit hard by the economic downturn
that began in 2007. We are working our way back to profitability and last year reported a small positive operating income of $9.8 million on more than $1.9 billion
of revenue. With an operating loss in the first quarter of 2012, ABF is not out of
the woods, but we are making progress. Despite the importance of these cyclical economic factors, the biggest challenge to ABFs long-term viability and its competitiveness within the trucking industry is the current and future liabilities it faces under
many of the multiemployer pension plans to which it contributes.
Multiemployer Pension Plans and the Trucking Industry
ABF contributes to 25 multiemployer pension plans associated with the trucking
industry. Many of these plans are in difficult financial straits. Multiemployer pension plans cover employees of different employers generally in the same industry
and geographic area and are managed by a joint board of trustees, half of whom
are appointed by the contributing employers and the other half by the labor union.
The plans are independent of both the employers and the union. Neither collective
bargaining party can exercise legal control over the plans. Rather, the trustees are
fiduciaries who are required to act solely in the interest of the plan participants,
and not in the interest of either the employers or the union. The Pension Benefit
Guaranty Corporation (PBGC) insures benefits promised under these plans, up to
a maximum guaranteed level set by law. If a multiemployer plan becomes insolvent,
the PBGC is responsible for providing assets to pay these benefits. The plans pay
annual premiums to the PBGC for this insurance coverage.
Contributions to multiemployer pension plans by employers like ABF have skyrocketed in recent years for a number of reasons. First, these plans were established
at a time when the trucking industry was heavily regulated by the federal government, which imposed barriers to entry and rate regulation. When the Congress deregulated the trucking industry in 1980, this caused a fundamental shift in the economics of the industry. Since then, the industry has become much more competitive
and, as a result, thousands of trucking companies have gone out of business. Under
the multiemployer system, due to changes implemented by the Employee Retire-
9
ment Income Security Act of 1974, as amended (ERISA), the remaining companies
in the plan are effectively responsible for the continued funding of all benefits under
the plan, including benefits of participants formerly employed by bankrupt or
defunct companies. This is a fundamental difference from single employer pension
plans, where the employer is responsible only for the benefits it promised to its own
employees. While the number of companies contributing to trucking industry multiemployer pension plans has been greatly reduced, the number of retirees who receive pension benefits has increased. Thus, an unsustainable demographic situation
has developed where an ever-declining number of employers are responsible for
funding the benefits of retirees with whom they have no connection. For example,
ABF understands that more than 50 cents of every dollar that it contributes to the
Central States, Southeast and Southwest Areas Pension Fund (the Central States
Pension Fund) goes to fund benefits of former employees of bankrupt or defunct
trucking companies, so-called orphan participants.1
Second, ERISA imposes potentially catastrophic withdrawal liability on companies that withdraw from underfunded plans. When an employer withdraws from a
multiemployer pension plan, it owes its proportional share of the plans unfunded
vested benefits. Many withdrawals have occurred in the bankruptcy context, and
plans typically collect only pennies on the dollar of the withdrawal liabilities owed
by these bankrupt or defunct companies. For example, when Consolidated
Freightways withdrew from the Central States Pension Fund following its bankruptcy in 2002, the Fund collected a small fraction of the nominal $318 million withdrawal liability. This shortfall ultimately must be funded by ABF and the other remaining employers. Withdrawal liability has also deterred new employers from contributing to the plans and investors from providing additional capital to multiemployer plan contributing employers.
Third, the Pension Protection Act of 2006 (PPA) significantly increased required
contributions to underfunded plans, particularly those in endangered (Yellow
Zone) and critical (Red Zone) status. When the PPA was enacted, interest rates
had not dropped to their current historically-low levels, and the stock market decline following Lehman Brothers bankruptcy had not occurred. In combination,
those two events drove up the value of plans liabilities, while reducing the value
of their assets. For example, UPS withdrew from the Central States Pension Fund
at the end of 2007 and paid the Fund $6.1 billion in withdrawal liability. The
Funds losses from the stock market decline in 2008 exceeded this payment from
UPS. Unfortunately, the PPA gives multiemployer plan trustees little flexibility to
address changed circumstances.
ABFs Multiemployer Plan Contributions
Based on the most recent annual funding notices ABF has received from the multiemployer pension plans to which it contributes, approximately 62% of ABFs contributions are made to plans that are in critical/Red Zone status (including the Central States Pension Fund). Close to half of ABFs total contributions are made to
the Central States Pension Fund. Plans in endangered/Yellow Zone status represent
12% of ABFs contributions. The remainder of ABFs contributions are made to
Green Zone plans like the Western Conference of Teamsters Pension Fund.
Approximately 75% of ABFs workforce is represented by the International Brotherhood of Teamsters (IBT). ABF is a party to the National Master Freight Agreement (NMFA) with the IBT, and the current five-year agreement expires March 31,
2013. In order to comply with the requirements of the PPA applicable to Red Zone
and Yellow Zone plans, the current version of the NMFA has imposed a 7% annual,
compound multiemployer pension plan contribution increase on ABF since it went
into effect in 2008. Over the course of the five-year term of the current NMFA, that
means a total compounded PPA-required contribution increase of more than 40%
relative to the rate in effect before the NMFA became effective in 2008. ABF has
contributed the following amounts to multiemployer pension plans in recent years:
$104 million in 2009; $120 million in 2010; and $133 million in 2011. Those contributions alone represent almost 8% of ABFs total revenues from those years.
ABFs Competitive Situation
ABF operates in a highly competitive industry that consists predominantly of nonunion freight transportation motor carriers. ABFs nonunion competitors have much
lower employee benefit cost structures, and some carriers also have lower wage
rates for their freight-handling and driving personnel. In addition, wage and benefit
1 On the other hand, multiemployer plans that are less dependent on the trucking industry
and have a more diverse base of contributing employers, such as the Western Conference of
Teamsters Pension Fund, are in much stronger financial positions.
10
concessions granted by the IBT to a key union competitor allow for a lower pension
cost structure than that of ABF. During the recessionary economic conditions that
began in 2007 and worsened in 2008, competitors with lower labor cost structures
reduced freight rates, resulting in increased pricing competition in ABFs primary
market segment.
Furthermore, ABFs labor costs are strongly impacted by its contributions to multiemployer plans that are used to pay benefits to orphan retirees who were never
employed by ABF. As noted above, more than half of ABFs contributions to the
Central States Pension Fund are used to fund benefits of retirees of companies that
are no longer contributing employers. Many other multiemployer plans to which
ABF contributes also have large numbers of orphan retirees.
Contributions to multiemployer pension plans are the main cost item compromising ABFs competitiveness. For example, according to an April 24, 2012 study
prepared by Mercer/WRGs Information Research Center, ABFs contributions for
pension benefits of $10.17 per hour worked are 257% higher than those for average
union employers. Pension contributions represent almost 21% of ABFs total compensation costs, compared to less than 8% for the average union employer. Not only
are the levels higher for ABF, they are increasing more rapidly, with a growth rate
of 8% per year since 2007 compared to 4.2% for the average union employer and
2.9% for the average nonunion employer. If ABFs current contribution levels were
frozen at current levels, and contribution rates for average union employers grew
at their current rate of approximately 4.2% annually, it would take more than 30
years just for those contribution levels to match ABFs current level. The comparable figure for the average nonunion employer is 88 years.
The comparison is even worse with respect to ABFs nonunion competitors. For
2011, ABFs average pension plan contribution for its operational employees was
$17,392 per employee. The average retirement plan contribution by ABFs key nonunion competitors was $1,131 per employee for that year. Thus, ABFs 2011 per-employee pension costs were 1437% higher than those competitors, who are not responsible for funding legacy liabilities of retirees they never employed.
Relative to its nonunion competitors, ABF had market share of around 5.5% in
2004. That has dropped to below 4%. Unless multiemployer pension plan contribution obligations are brought under control, ABF will continue to lose market share.
ABFs significantly higher cost structure that results from the multiemployer pensions plans has been highlighted in numerous financial analysts reports and is reflected in the Companys stock price. For example:
[W]e see an above-peer cost structure keeping ABF from generating earnings
based on what the market will offer. ABF has a higher cost structure than union
and non-union peers, which could keep the company at a competitive disadvantage
* * * an above-peer cost structure and persistent challenges in the core less-thantruckload business present meaningful long-term risks. Anthony Gallo, Senior Analyst, Wells Fargo
We believe better relative tonnage levels will not solve the problem of [ABFs]
reduced profitability. It appears that a structural change in compensation and benefits to its Teamster workforce is necessary to better align costs with volumes * * *
without material progress [on compensation issues] Arkansas Best has structurally
higher costs than its peers stunting potential growth. Chris Wetherbee, Research
Analyst, Citi
The most prevalent risks, in our opinion, to the performance of ABFS shares are
the cyclical nature of LTL freight and legacy cost headwinds from its unionized
workforce. Additional risks include the presence of well-capitalized integrated carriers (FedEx and UPS) in the LTL market and uncertainty surrounding multi-employer pension liabilities. Todd Fowler, Vice President, KeyBanc Capital Markets
ABFs stock traded at $12.29 on June 15, 2012. The 52-week high as of that date
was $27.44, more than double the current price. Before the 2008 financial crisis,
ABFs stock price exceeded $45 per share.
If pension obligations are ignored, ABFs cost structure is in line with that of its
key competitors. It is ABFs multiemployer pension obligations that require it to
charge prices that its competitors are able to undercut. This creates a vicious cycle,
where higher prices result in reduced market share, revenues drop, and ABFs ability to invest in its business are jeopardized.
A solution to the multiemployer pension plan crisis is critical for ABF and other
trucking companies.
Conclusion
ABF is working with a number of groups to formulate multiemployer pension plan
reforms that make sense for plans, active and retired employees, and contributing
employers. Many multiemployer plans are in an untenable situation. Further rais-
11
ing of contribution rates will jeopardize the ability of employers to survive and continue contributing to the plans. The PPA restrains plans abilities to accept reduced
contribution rates for employers in financial distress. Plans cannot survive without
contributing employers, but current legal rules make it difficult for plans to make
changes that are necessary for the long-term viability of the plans and their contributing employers. Plan trustees currently have few tools to address the structural
problems faced by the plans and the employers on which they depend. ABF strongly
supports efforts to save the multiemployer pension plans that its active and retired
employees depend on for their retirement income.
In addition, action is required because the PBGC lacks the resources to fulfill the
multiemployer plan obligations it expects to incur under current law. In its 2011
annual report, the PBGC noted that the financial deficit of its multiemployer program doubled in its most recently-completed fiscal year. The PBGC further stated
that the greater challenge, however, comes from those plans that have not yet
failed: our estimate of our reasonably possible obligations (obligations to participants), described in our financial statements, increased to $23 billion. Without sufficient contributing employers, plans will eventually become insolvent and the
PBGC will have to assume responsibility for the benefits under those plans. Currently, all of the PBGCs multiemployer program revenues come from premiums
charged to multiemployer plans themselves. However, if the PBGC cannot fulfill its
benefit guarantee obligations, there will be great pressure on the federal government to provide additional funding to the PBGC from general revenues. By taking
action now, Congress can help avert a crisis that otherwise is almost certain to
occur.
I would be pleased to answer any questions that the members of the Subcommittee may have. Thank you.
Chairman ROE. Thank you.

Mr. Sander?
STATEMENT OF MICHAEL SANDER, ADMINISTRATIVE MANAGER, WESTERN CONFERENCE OF TEAMSTERS PENSION
TRUST
Mr. SANDER. Chairman Roe, Ranking Member Andrews, and

members of the subcommittee, thank you for inviting me to testify
today about the Western Conference of Teamsters Pension Plan.
My name is Mike Sander. I am the administrative manager of the
plan.
The Western Conference Plan, the largest multiemployer plan in
the country, provides secure retirement benefits to over 500,000 active and inactive vested employees and retirees. Since 1955 we
have provided retirement benefits to over 300,000 additional retirees and their families.
Plan assets today exceed $30 billion. Annual employer contributions total $1.3 billion. Last year we paid $2.2 billion in benefits
to plan participants in all 50 states.
Almost 1,700 employers engaged in over 50 different industries
participate in our plan. We continue to add new employers and employee groups. These large and small employers are engaged in a
variety of industries: grocery, food distribution, package delivery,
manufacturing, beverage bottling, law enforcement, waste disposal,
health care, and many others.
Some are brand names: United Parcel Service, Safeway, CocaCola, Waste Management. But others are small businesses, like
W.W. Clyde and Company, in Orem, Utah; McGree Contracting
Company in Butte, Montana; and Whitewater Building Materials
in Grand Junction, Colorado.
12
Over 74 percent of employers that participate in the Western
Conference Plan are small businesses with 50 or fewer employees.
In fact, nearly half have 20 or fewer employees.
The Western Conference Plan is designed to accommodate a mobile workforce. A recent analysis of our active workers reveals that
over 25 percent of participants over the course of their career have
worked for two or more contributing employers to the plan. Participants work in a host of occupations, including truck drivers,
nurses, clerks, warehouse workers, food processors, police officers,
highway maintenance workers, construction workers, and others.
The plan distributes a specified, regular amount of funds to retirees, determined by historical employer contribution rates, ages,
lengths of service, and other factors. Because retirees are guaranteed a fixed level of retirement income the plan provides certainty
and stability to retirees even in unpredictable economic times. The
plan limits risks to both participants and employers by pooling contributions from a variety of companies and industries.
Our goal is full funding. The trustees have always used a conservative investment strategy and benefit plan design. The plan
has been in the green zone, as that term is defined by the Pension
Protection Act, since the law was first passed in 2006. At the start
of 2008, just before the market crash, our plans funded percentage
was a robust 97.1 percent.
The plans management and labor trustees have a long history
of working together to strengthen the plan and promote the wellbeing of plan participants. After the dot-com market slide in 2002
the trustees agreed to cut future benefits in half in order to get
back to full funding.
Like all institutional investors, the Western Conference Plan was
harmed by the unprecedented collapse of the markets worldwide in
2008. Our asset values dropped by 20 percent, over $6.2 billion.
Congress passed common sense legislation in 2010 to allow plans
to spread these losses over a longer period of time. The plans funded status for 2012 is now projected to be 90.3 percent.
The Western Conference Plan strongly supports transparency.
Financial information about the plan, including our audited financial statements, our Form 5500s, actuarial reports, annual funding
notices, and other documents are all readily available for all to see.
We encourage employers, participants, and other stakeholders to
review our financial data on our Web site.
The trustees strive to maximize operational efficiencies. Through
investments in technology and a streamlined processing system
computers now automate much of daily processing.
Employers can report their monthly hours activity over the Internet and send their contributions electronically to a clearinghouse
where available funds are swept immediately into the plans investment pools. The plan uses only seven cents of every contribution
dollar to fund all plan operations, leaving 93 cents of contributions
and 100 percent of investment income to support funding levels.
Thank you for your consideration of our views. The Western Conference Plan is a long-term enterprise. We have been successful for
over 50 years and we intend to provide substantial retirement security for the next 50 years and beyond.
13
We look forward to working with you and I would be happy to
answer your questions.
[The statement of Mr. Sander follows:]
Prepared Statement of Michael M. Sander, Administrative Manager,
Western Conference of Teamsters Pension Plan
Chairman Roe, Ranking Member Andrews, and Members of the Subcommittee,
thank you for inviting me to testify today about the Western Conference of Teamsters Pension Plan. My name is Mike Sander, and I am the Administrative Manager
of the Plan.
The Western Conference Plan, the largest multiemployer pension plan in the
country, provides secure retirement benefits to over 500,000 active and inactive
vested employees and retirees. Over the life of the Plan since 1955, we have provided retirement benefits to over 300,000 additional retirees and their families. The
Plan covers the 13 western statesAlaska, Arizona, California, Colorado, Hawaii,
Idaho, Montana, Nevada, New Mexico, Oregon, Utah, Washington and Wyoming.
Plan assets exceed $30 billion, and annual employer contributions total $1.3 billion.
Last year, we paid $2.2 billion in benefits to plan participants in all 50 states and
the District of Columbia.
Almost 1,700 employers, engaged in over 50 different industries, participate in the
Plan. We continue to add new employers and employee groups. These large and
small employers are engaged in a variety of industries: grocery and food distribution, package delivery, manufacturing, clerical, beverage bottling, law enforcement,
entertainment, waste disposal, health care and others. Some of them will be familiar
to you: United Parcel Service, Safeway, Coca-Cola, and Waste Management. Others
are not household names because they are small businesses, like W.W. Clyde &
Company in Orem, Utah, McGree Contracting Company in Butte, Montana, and
Whitewater Building Materials in Grand Junction, Colorado. Over 74 percent of employers that participate in the Western Conference are small businesses with 50 or
fewer employees.
The Western Conference Plan is designed to accommodate a mobile workforce,
providing pension portability to participants who may find it necessary to seek employment in a different industry or elsewhere in the 13 western states, or even beyond. A recent analysis of our active workers reveals that over 25% of participants
over the course of their career have worked for two or more contributing employers.
Participants work in a host of occupations, including as truck drivers, nurses, clerks,
warehouse workers, food processors, police officers, highway maintenance workers,
and construction workers.
The Western Conference Plan distributes a specified, regular amount of funds to
retirees, determined by historical employer contribution rates, age, length of service,
and other factors. Because retirees are guaranteed a certain level of retirement income, the Plan provides certainty and stability to retirees, even in unpredictable
economic times. The Plan limits risk to both participants and employers by pooling
contributions from a variety of companies and industries.
Our Plans goal is full funding. The trustees have always used a conservative investment strategy and benefit plan design. The Plan has been in the green zone,
as defined by the Pension Protection Act, since that law was passed in 2006. At the
start of 2008, just before the market crash, the Plans funded percentage was a robust 97.1%.
The Plans management and labor trustees have a long history of working together to strengthen the plan and promote the well-being of participants. The trustees take their responsibilities for funding very seriously. After the dot-com market
drop in 2002, for example, the trustees agreed to cut benefit accruals by one-half
to get back to full funding. Over the many decades the Plan has operated, the management and labor trustees have worked well together, resolving differences through
a rational decision-making process focused on how best to achieve the key objective
of providing retirement security to the hundreds of thousands of employees who participate in the Plan.
Like all institutional investors, the Western Conference Plan was harmed by the
unprecedented collapse of the markets worldwide in 2008. Our asset values dropped
by 20%, over $6.2 billion. Congress passed common sense legislation in 2010 to
allow plans to spread those losses over a longer period of time. These important
changes came at no cost to taxpayers or the government. Despite the 2008 crash,
the Western Conference Plans funded status for 2012 is projected to be 90.3%.
The Western Conference Plan strongly supports transparency. Financial information about the Plan, including our audited financial statements, Form 5500s, actu-
14
arial reports, annual funding notices, and other documents, is readily available for
all to see. We encourage employers, participants and others to review our financial
data at http://www.wctpension.org./downloads/downloads.html.
The trustees strive to maximize operational efficiencies. Through investments in
technology and a streamlined processing system, computers now automate much of
daily processing. Employers can report their monthly hours activity over the internet and send their contributions electronically to a clearing house where available
funds are swept daily into investment vehicles. The Plan uses only seven cents of
every contribution dollar to fund all Plan operations, leaving 93 cents of contributions and 100% of the investment income to support funding levels.
Since 1995, the Plan has provided an annual personal benefit statement to each
active participant. The statement shows the participants total accrued benefits and
the amount earned in the previous year, an itemization of hours worked and employer contributions for that year, and beneficiary information. This gives participants an important retirement planning tool.
The Plan investments are made in accordance with an asset allocation model designed to provide strong returns consistent with a variety of economic environments.
The Trust uses indexing strategies to provide effective diversification within the
portfolios, while keeping net investment costs low. The Plan leverages its asset size
into advantageous pricing. Manager selection is done with an eye to proven longterm results. Strong returns from proven asset managers at low net cost supports
the highest benefit levels prudently possible.
Thank you for your consideration of our views. The Western Conference Plan is
a long-term enterprise. We have been successful for over 50 years, and we intend
to provide substantial retirement security for the next 50 years and beyond. We look
forward to working with you, and I would be happy to answer your questions.
Chairman ROE. Thank you, Mr. Sander.

Mr. Shapiro?
STATEMENT OF JOSH SHAPIRO, DEPUTY EXECUTIVE DIRECTOR FOR RESEARCH AND EDUCATION, NATIONAL COORDINATING COMMITTEE FOR MULTIEMPLOYER PLANS
Mr. SHAPIRO. Chairman Roe, Ranking Member Andrews, and

members of the subcommittee, it is an honor to speak with you
today on this important topic. My name is Josh Shapiro and I am
the deputy director of the National Coordinating Committee for
Multiemployer Plans.
Multiemployer pension plans provide vital retirement income security to millions of working-class Americans. By serving workers
characterized by very small employers and mobile workforces these
plans cover individuals who simply would not have access to quality retirement benefits without them.
As we discuss the challenges facing multiemployer plans a few
features of these plans are worth noting. The first is that each multiemployer plan is governed by a board of trustees that consists of
equal representation from both management and labor. The contributions that companies make to these plans go into a trust fund
that is managed by the board of trustees, and this trust fund operates independently of either bargaining party.
There are currently approximately 1,450 multiemployer plans in
the country covering approximately 10 million workers. The
NCCMP has estimated that the aggregate assets held by these
plans totals approximately $450 billion.
As you all know, the 2008 financial crisis and ensuing recession
have had devastating effects on many sectors of our economy. Multiemployer plans are no exception. These plans are active investors
in the equity markets, and just as they experienced tremendous
asset growth during the boom years of the 1990s they also experi-
15
enced enormous declines in their asset holdings in recent years.
What you may not know is that the tax code that was in existence
in the 1990s did not allow these plans to store those asset gains
as insurance against future losses.
A unique feature of multiemployer plans is the fact that contributions to the plans are governed by collective bargaining agreements. Once those contributions are negotiated there is no simple
way to stop or reduce them when the plan is overfunded.
Additionally, in the late 1990s contributions to an overfunded
multiemployer plan were not tax deductible to employers, and in
many cases such contributions would trigger excise tax penalties.
This unfortunate situation meant that as a practical matter many
plans had no choice other than to raise their benefit levels in order
to eliminate the overfunding and preserve the tax deductibility of
contributions. This inability to hold those investment gains as insurance against future losses left multiemployer plans especially
vulnerable to declines in capital markets.
The 2008 stock market crash reduced the funded position of multiemployer plans by an average of approximately 30 percent. The
average plan was 90 percent funded immediately prior to the crash.
After the crash the contributions necessary to fund these plans in
many instances more than tripled.
The response of the multiemployer community to this crisis has
been profound. Across all sectors employees have accepted lower
wages and lower benefits while employers have had to make larger
contributions during a historically difficult business climate.
NCCMP data indicates that over 80 percent of multiemployer plans
have taken one or more of these steps.
While these responses have been painful they have been largely
successful. Recent survey data indicates that well over 60 percent
of multiemployer plans are now in the PPAthe Pension Protection Actgreen zone, indicating a healthy funded position.
While the news headlines will always focus on the small number
of plans that are deeply troubled and may not be able to recover
from the crisis, the fact is that the majority of plans will be able
to fully recover and pay benefits to future generations of participants.
However, this recovery has come at a steep price. Younger participants have had their faith in the system shaken as their contributions have risen and benefits have declined, while the sponsoring companies are concerned that they are effectively acting as
insurers against the stock market.
The NCCMP has convened a Retirement Security Review Commission consisting of both labor and management representatives
whose mission is to study the situation facing the plans and to develop a comprehensive proposal for reform. The guiding principles
of this commission are that employer financial risk must be mitigated while at the same time participant retirement income security must be preserved.
During this time of great challenge it is tempting to conclude
that the multiemployer pension system is broken and should be
abandoned. It would be a great tragedy if this fate were to befall
a system that has been so beneficial to so many millions of people
16
for so many decades. The system does not need to go away but it
does need to evolve.
I am confident that the upcoming recommendations of the
NNCMP commission will provide a solid foundation for a retirement system that will meet the needs of both the companies that
support the plans and the employers that participate in them.
Thank you very much for your kind attention, and I sincerely
look forward to working with you and your staff members in the
coming months as you work to implement necessary reforms.
[The statement of Mr. Shapiro follows:]
Prepared Statement of Josh Shapiro, Deputy Director for Research and
Education, National Coordinating Committee for Multiemployer Plans
Chairman Roe, Ranking Member Andrews and Members of the Committee, it is
an honor to speak with you today on this important topic. My name is Josh Shapiro.
I am the Deputy Director of the National Coordinating Committee for Multiemployer Plans (the NCCMP). The NCCMP is a non-partisan, non-profit advocacy
corporation created in 1974 under Section 501(c)(4) of the Internal Revenue Code.
It is the only organization created for the exclusive purpose of representing the interests of multiemployer plans, their participants and sponsoring organizations. In
addition to my role at the NCCMP, I am also a Fellow of the Society of Actuaries,
a Member of the American Academy of Actuaries, and an Enrolled Actuary under
ERISA. I serve on the American Academy of Actuaries Pension Committee, and on
its Multiemployer Subcommittee.
The sponsors of multiemployer pension plans are predominately small businesses
that operate in industries characterized by highly fluid employment patterns. For
over 60 years multiemployer plans have made it possible for these companies to provide their employees with modest and reliable retirement income. Both the small
size of the sponsoring employers and the mobility of their workforces make it impractical for them to achieve this objective with single-employer pension plans. For
this reason, millions of middle class Americans have financial security in retirement
that is entirely attributable to the existence of multiemployer pension plans. According to the 2011 PBGC Annual Report, there are currently approximately 1,450 multiemployer plans in the country covering over 10 million participants. While precise
figures are difficult to obtain, the NCCMP has estimated that the aggregate assets
held by these plans totals approximately $450 billion.
Multiemployer plans are the product of collective bargaining between one or more
unions and at least two unrelated employers. The collective bargaining process establishes the rate at which employers will contribute to the plan, frequently expressed as a dollar amount per hour of work. The contributions go into a trust fund
that is independent of either bargaining party. By law, the trustees of this fund consist of equal representation from both management and labor. With input from their
professional advisors, the trustees determine the benefit provisions of the pension
plan, oversee the investment of the assets, and administer the collection of contributions and the payment of benefits. As trustees, the representatives of both sides of
the bargaining table have fiduciary responsibility to manage the plan for the sole
and exclusive benefit of the plan participants.
While most often associated with the construction and trucking industries, multiemployer plans are pervasive throughout the economy including the agricultural;
airline; automobile sales, service and distribution; building, office and professional
services; chemical, paper and nuclear energy; entertainment; food production, distribution and retail sales; health care; hospitality; longshore; manufacturing; maritime; mining; retail, wholesale and department store; steel; and textile and apparel
production industries. These plans provide coverage on a local, regional, or national
basis, and cover populations that range from as small as a few hundred participants
to as large as several hundred thousand participants.
The Experience of Multiemployer Plans in the 1990s
Since the establishment of ERISAs pre-funding requirements, multiemployer
plans have typically been very well funded. This was especially true in the late
1990s when exceptionally strong stock market returns resulted in many plans having assets that were significantly larger than their liabilities. While on the surface
this is a highly desirable result, it is ironic that this period actually set the stage
for the challenges that the plans face today. To see why this is the case, it is first
17
necessary understand how actuaries calculate the funding needs of multiemployer
plans through the use of long-term assumptions and methods.
Long-term actuarial funding rests on the idea that the financial markets will experience periods of strong investment returns and periods of poor investment returns. The actuary determines the funding requirements using an assumed rate of
return on plan assets that represents his or her best estimate of the long-term average, with the understanding that over short periods of time the assets may perform
significantly better or worse than this average. The core idea is the notion that
short-term fluctuations will tend to offset each other, and the plan can achieve stable long-term funding through the use of level and predictable contributions. In
order for this funding approach to function properly, it is necessary for plans to
maintain surplus positions during periods of unusually strong asset returns, as
these surpluses will serve to offset the losses that the plans incur during periods
of unusually poor returns.
During the late 1990s, very strong investment returns resulted in the majority
of multiemployer plans having assets that exceeded their liabilities. While the longterm approach to funding dictates that plans need to preserve this overfunding to
offset future investment losses, two unique features of multiemployer plans prevented them from remaining in a surplus position. The first of these features is the
fact that contributions to multiemployer pension plans are specified in collective
bargaining agreements. There is no simple mechanism for stopping or reducing
these contributions when the plan is overfunded. The second unique feature of multiemployer plans is the fact that during the 1990s, contributions to an overfunded
multiemployer pension plan were not tax deductible to the employers. In many
cases, not only would contributions to these plans have been non-deductible, they
would also trigger excise tax penalties.
The combination of these two features placed the trustees of multiemployer pension plans in a very difficult position. The employers were obligated by the collective
bargaining agreements to contribute to the plans, but due to the overfunding of the
plans, these contributions would not be tax deductible, and might trigger excise tax
penalties. As a practical matter, the trustees had no choice but to raise the level
of benefits that the plans provided so that the plan assets would no longer exceed
the liabilities. Essentially, they were forced to spend the funding surpluses instead
of being able to preserve them as insurance against a market downturn. The
NCCMP has estimated that upwards of 70% of all multiemployer plans found themselves in this position leading up to the millennium. The Pension Protection Act of
2006 (PPA) addressed this shortcoming in the tax code, but unfortunately this
change was too late to help most plans.
It is worth noting that the situation facing single-employer pension plans was
very different. The most obvious difference was the fact that the sponsors of these
plans had the option to simply stop contributing to the plans during periods of overfunding. Many plan sponsors took advantage of this option, and it was not uncommon for these companies to go ten or more years without making any contributions
to the plans at all. At the same time, there was no need for these plans to raise
their benefit levels to eliminate the overfunding, so many of them remained significantly overfunded year after year. Some observers have noted that single-employer
plans have historically had higher funding levels than multiemployer plans. This observation is true, but most authors either miss, or choose to ignore, the fact that
the ability of single-employer plans to effectively maintain a surplus position gave
them an inherent funding advantage over multiemployer pension plans.
Market Turmoil of the 2000s
Having been unable to maintain a surplus position during the late 1990s, multiemployer pension plans were extremely vulnerable to the market turmoil that characterized the decade between 2000 and 2010. Despite the downturn that occurred
in the years 2000 to 2003, by the beginning of 2008 multiemployer plans were very
much back on track. NCCMP survey data indicates that at the beginning of that
year, the average plan was approximately 90% funded. The Pension Protection Act
of 2006 (PPA) established criteria for determining when a multiemployer plan
should be considered in endangered status or critical status. NCCMP survey data
shows that at the beginning of 2008, only 9% of plans were considered to be critical, with an additional 15% classified as endangered.
The 2008 financial market crash and ensuing recession had a profound impact on
the funding position of multiemployer plans. The S&P 500 Index lost 37% that year,
and the average multiemployer plan experienced a decline of approximately 30% in
its funded level (determined using the market value of assets). For many plans with
funding ratios of 90% or better prior to the crash, the level of contributions needed
to responsibly fund the liabilities more than tripled. This situation placed enormous
18
burdens on companies that were already contending with a historically difficult economic climate in the years following the 2008 crisis. The recession also presented
a separate challenge for he plans themselves, as they depend on employment levels
to generate contribution income. As an analogy, the 2008 crash gave the plans a
hole from which they need to dig out, and the subsequent recession substantially
reduced the size of their shovel.
It is critical to note that the funding challenges currently facing multiemployer
plans are not the result of reckless investing, aggressive assumptions, or unreasonably large benefits. NCCMP survey data clearly documents this conclusion. This
data indicated that at the beginning of 2008, the average multiemployer plan held
approximately 57% of its assets in equities, 27% in bonds, 6% in real estate, and
the remaining 10% spread across cash, hedge funds, private equity, and other investments. This asset mix is in line with the portfolios of pension funds in other
sectors, and is also consistent with the strategy that investment professionals recommend to individuals who need to manage their own retirement savings through
defined contribution plans.
Regarding actuarial assumptions, the vast majority of multiemployer pension
plans budget for average returns of 7.5% or less on their investments. This figure
represents a reasonable estimate of the asset returns that are attainable to investors with very long-term time horizons. NCCMP survey data indicates that the median benefit that a multiemployer plan pays to a retiree is approximately $900 per
month, which is just under $11,000 per year. As most retirees have been receiving
their benefits for many years, a better measure of the benefits that the plans are
currently promising is to look at the median amount paid to a recent retiree. This
figure is approximately $1,400 per month, or just under $17,000 per year. By any
measure, these are modest retirement benefits that, when combined with Social Security and personal savings, are just enough to allow retired participants to have
a decent standard of living.
The Road to Recovery
When a multiemployer plan encounters adverse experience, the trustees and bargaining parties have two main tools at their disposal to improve the funded position
of the plan. The first tool is to allocate additional contributions to the plan. When
this tool is used, it has a direct effect on both the employees and the employers.
For the employees, it serves to reduce their overall compensation, since absent the
funding challenges of the pension plan, these dollars would have been available for
other purposes. In fact, in many severely troubled plans employees have accepted
reductions in their paycheck wages in order to allocate more money to the pension
plan. For the employers the additional contributions make it more difficult for them
to compete in the market place, often against competitors that have not chosen to
provide comparable retirement benefits to their employees. NCCMP survey data indicates that more than 70% of multiemployer plans have responded to the 2008
funding crisis with increased contributions.
The second tool available for the purpose of improving the funded position of a
multiemployer pension plan is to reduce the rate of future benefit accrual. This action has minimal immediate effect on the plan as it does not affect benefits that
participants have already earned. What it does do is allow a larger portion of the
ongoing contribution income to pay for the funding shortfall, as a lesser portion of
these contributions is required to cover the cost of participants benefit growth. In
contrast to the first tool that impacts both the employees and the employers, reducing the rate of benefit accrual only has a direct impact on the employees. NCCMP
survey data indicates that approximately 40% of multiemployer plans have responded to their funding challenges by reducing the rate of benefit accrual.
The actions that multiemployer boards of trustees and sponsoring employers have
taken in response to the financial crisis have been difficult for all stakeholders.
However, these actions have not only been necessary, they have been effective.
While NCCMP survey data indicates that only 20% of plans were in the PPA green
zone immediately following the 2008 crash, current data indicates that this figure
now exceeds 60%. An occasional, and particularly ill informed, criticism of multiemployer plans is that they have ignored their problems. Regardless of how someone
feels about multiemployer pension plans, any thorough analysis of their recent history will demonstrate the commitment that both the employees and employers have
to the plans, and the sacrifices they have made to support them.
Despite the efforts of the sponsors to take the measures necessary for recovery,
a small number of plans have suffered more damage than they will be able to endure. Primarily these plans come from industries in which economic shifts have
greatly hindered their ability to raise the necessary contribution income. In particular, there are two specific very large plans that have suffered from the unin-
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tended consequences of unrelated public policy decisions. In one of these plans, the
deregulation of the trucking industry in 1980 resulted in the decline and demise of
virtually all of the major contributing commercial carriers. In the other plan, the
Clean Air Act caused the cessation of a large portion of the bituminous coal mining
industry that previously contributed to the plan, resulting in an active employee
population that is a small fraction of the previous number. In both instances, the
plans had managed to remain well funded until the unprecedented market collapse
imposed irrevocable harm on the plans investments. While these two plans represent major challenges to the multiemployer community, and they are the subject
of frequent media attention, their unique circumstances are not representative of
the vast majority of multiemployer plans.
NCCMP Retirement Security Review Commission
The multiemployer funding provisions of the Pension Protection Act of 2006 (PPA)
will sunset at the end of 2014. The challenges currently facing multiemployer plans
make it clear that in order to survive and grow in the future, the system requires
a greater degree of flexibility than is currently available. We have welcomed the interest shown by your Committee staff and that of the other Committees of jurisdiction, as well as the regulatory agencies in learning how PPA could be modified to
better meet the needs of plan participants, sponsors and the plans themselves. In
the course of reviewing proposals for modifications, we have come to the conclusion
that now is an appropriate time to consider taking a more fundamental assessment
of the rules governing the multiemployer defined benefit system.
In order to ensure that the interests of all stakeholders are reflected in this evaluation, the NCCMP has convened a Retirement Security Review Commission comprised of representatives from over 40 labor and management groups from the industries which rely on multiemployer plans to provide retirement security to their
workers. The group began its deliberations in August of 2011 and meets monthly
to evaluate their collective experience with current laws and regulations and develop ideas for reform and improvement.
The group has identified the following key objectives:
Ensure that any proposed changes to the law or regulations will allow the plans
to continue to provide regular and reliable retirement income to participants.
Reduce the financial risks to employers so that these risks do not encourage
companies to leave the system or prevent new companies from joining the system.
The Commission has established an ambitious time table for its deliberations with
a target of developing legislative recommendations later this summer. We look forward to keeping your Committee staff apprised of our progress, and to discussing
our recommendations when they are available. We are confident that labor, management, and government will be able to work together to achieve the necessary enhancements that will enable multiemployer plans to survive and continue to provide
affordable, reliable and secure retirement income to future generations of Americans.
Chairman ROE. Thank you, Mr. Shapiro.

Mr. Ring?
STATEMENT OF JOHN F. RING, PARTNER,
MORGAN, LEWIS & BOCKIUS LLP
Mr. RING. Chairman Roe, Ranking Member Andrews, and members of the subcommittee, thank you for the opportunity to participate in this hearing today. I am a partner with the law firm of
Morgan, Lewis, and Bockius, and as part of my practice I amI
serve as management co-counsel to a number of multiemployer
pension plans, and our firm represents dozens of multiemployer
plans in traditionally unionized industries.
In addition, I have negotiated on behalf of employers numerous
collective bargaining agreements which set for the terms of and
companiesthe terms of companies participation in and contributions to multiemployer plans. So I have had the benefit of seeing
multiemployer plan issues both from the bargaining table and the
trustees table.
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For more than 50 years multiemployer plans have played an important role in the overall retirement scheme of this country. In
many unionized industries they are the retirement system for millions of Americans. And while many of these plans may be in good
shape, like Mr. Sanders, thethere are significant numbers that
are not and they are headed towards insolvency.
Before discussing the plans themselves I would like to briefly
talk about the companies that contribute to these plans. There is
a tendency to focus exclusively on the plans and their beneficiaries,
but consideration also needs to be paid to the companies that participate in and pay for these multiemployer plans. Without them
the plans would be history. And if the financial burden to sustain
these plans becomes too great then we run the risk of even more
employers who provide good jobs with good benefits going out of
business.
Unfortunately, the number of companies that contribute to these
plans has dwindled significantly in the past several decades. This
has resulted in an ever increasing and in some cases unsustainable
burden on those companies that remain.
In some industries, increasing employer contributions to multiemployer plans is simply not a viable option. In order to comply
with requirements of current law some plans would requireor set
employer contribution rates at upwards of $20 per hour. That is
$20 per hour of each hour worked by their active employees. It is
obviously unsustainable.
So why, then, are some of the multiemployer plans in trouble
now and how bad is it? I think boiled down to its simplest explanation the problem has been caused by a combination of four
things: one, investment loss; two, rising liabilities due to low interest rates; three, serious demographic issues; and fourth, spiraling
liabilities left by withdrawing employers.
These four things have put some multiemployer plans on an irreversible path towards insolvency, and for some plans the collapse
is closing in quickly and they are projected to run out of money
within 5 years.
Investment returns and interest rates over the last decade have
ravaged most defined benefit pension plans, and multiemployer
plans were no exception. I would point out that many of these
plans now facing insolvency were in very good shapesome upwards of 100 percent fundedmore than a decade ago.
The economic downturn only exacerbated the significant demographic issues facing multiemployer plans. As the size of the countrys unionized workforce in a number of industries has shrunk and
continues to do so the ratio of retirees to active participants also
continues to grow greater. And many of these retirees worked for
companies who are gone or have withdrawn and are no longer contributing. And as such, the benefits of these retirees must be paid
for by the remaining employers.
What this has meant is higher employer contributions, which
further threaten the financial viability of these last remaining contributing employers, many of which are already struggling because
of the economy and because of the significant cost disadvantages
they face vis-a-vis their nonunion competition. It has become a vicious cycle.
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Situations like the one playing out in the current Hostess bankruptcy will only make matters worse. There, the bankruptcy judge
may allow that company to walk away from all of the multiemployer pension plans in which it previously contributed, and to do
so with no withdraw liability. For a number of smaller bakery
funds this will mean certain insolvency and will leave the remaining employers with substantial liability.
So it is not a pretty picture for some of these multiemployer
plans. And what is worse, for plans in critical status that have reduced future benefits to the maximum extent possible and have
raised contributions to the maximum extent possible, there are
simply no tools left that trustees can use to avoid the slide towards
insolvency. And regrettably, there is nothing in the current law
that gives responsible government agenciesthe IRS, the PBGC, or
the DOLany ability to provide meaningful assistance to these
plans prior to them running out of money.
So looking forward what is the answer? With the sunset of the
PPA provisions in 2014, failure to address the problem in a timely
legislative solution will mean that these insolvent plans will end up
at the PBGC sooner rather than later. That is the current law.
This means that the status quo will result in the government taking on a portion of these liabilities when these plans become insolvent.
Mr. Chairman, thank you for giving me the opportunity to testify
and I look forward to answering any questions you may have.
[The statement of Mr. Ring follows:]
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Chairman ROE. Thank you, Mr. Ring.

Mr. Henderson?
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STATEMENT OF SCOTT M. HENDERSON, VICE PRESIDENT &
TREASURER, THE KROGER CO.
Mr. HENDERSON. Chairman Roe, Ranking Member Andrews, and

members of the subcommittee, thank you for this opportunity to
testify today. My name is Scott Henderson. I am vice president and
treasurer of the Kroger Company. I have responsibility for Krogers
pension investments and I serve as a trustee for one of the 33 multiemployer pension plans in which Kroger participates.
Kroger is one of the largest retailers in the world, with total annual sales exceeding $90 billion. Kroger is also one of the largest
unionized employers in the United States. Two-thirds of our
339,000 associates are represented by labor unions.
Kroger appreciates the funding discipline Congress imposed
under the Pension Protection Act. We look forward to discussing
ways to build upon those rules and ways Congress could make
broader structural changes to the multiemployer system.
Mr. Chairman, there are three points I would like to make today.
My first point is to note that multiemployer plans are funded only
by those employers that participate in these plans. That is why we
often stress that this is an employer issue.
It is sometimes believed that multiemployer plans are union pension plans and, hence, a union issue. While it is true that participants work under collective bargaining agreements, those who fund
these plans are employersbusinesses large and smallthat employ millions of working Americans. As Congress considers legislation that would address multiemployer plans it is important to remember that a key objective is to help employers better manage
their financial exposure to these plans.
My second point relates to Krogers obligations to fund retirement benefits of workers and retirees who never worked for
Kroger. Kroger has promised to fund the retirement benefits that
our associates have earned and we have kept this promise. But
Kroger, along with other employers that contribute to multiemployer plans, should not be forced to fund or guarantee the pension
benefits of workers and retirees who never worked for us.
Under the current system, employers that remain in a multiemployer plan are financially responsible for the unpaid obligations of
an employer that leaves the plan without funding its pension promises. Even if an employer pays everything it owes before leaving a
plan the remaining employers are still financially responsible for
the pension benefits of the exiting employer.
This shifting of liabilities to remaining contributing employers is
referred to as the last man standing rule. In those plans where
the employer base has considerable declined the liabilities being
absorbed by remaining employers are placing an unfair burden on
these employers. In Krogers case it is one of the main reasons why
we could be required to contribute an additional $2.3 billion to fund
pension benefits over the long term.
This leads to my final point. The current multiemployer rules are
ill-suited for todays economy. The rules limit companies such as
Kroger from taking steps that would strengthen these plans.
Despite these limitations Kroger has been innovative and forward thinking in our approach to multiemployer funding issues.
Case in point: In 2011 we addressed some of our exposure by nego-
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tiating with our union counterparts to merge four multiemployer
plans into a single new plan. Kroger contributed $650 million to accelerate funding of the merged plan, which increased its funded
percentage from 73 percent to 91 percent. These efforts have longterm benefits for both our shareholders and our retirees.
While Kroger would like to be more proactive, the current rules
limit our ability to take similar action with respect to other multiemployer plans. Admittedly, it is easy to identify problems with the
current system. Coming up with workable and equitable ways to
reform these rules, however, is difficult.
But here are four broad concepts that Congress could consider:
One, continue the funding discipline imposed in 2006 by requiring
bargaining parties and trustees to establish benefits based on
available contribution levels and to eliminate current underfunding
over a reasonable period of time. Two, give plans and bargaining
parties more tools to address the current underfunding situation.
Three, encourage the consolidation of multiemployer plans. And
four, make plan information more accessible and transparent to
contributing employers and participants.
In closing, employers compete for the talent we need by providing
competitive compensation packages that include a reasonable retirement benefit for long service employees. We can best keep that
commitment by remaining a financially strong and growing company.
Mr. Chairman, we look forward to working with this subcommittee and hope that you will view Kroger as a resource as
Congress takes on these complicated issues. Thank you for the opportunity to testify and I look forward to answering your questions.
[The statement of Mr. Henderson follows:]
Prepared Statement of Scott Henderson, Treasurer and
Vice President, the Kroger Co.
Thank you Chairman Roe, Ranking Member Andrews, and members of the Subcommittee for the opportunity to testify today. My name is Scott Henderson. I am
the Vice President and Treasurer for The Kroger Co. (Kroger). I have responsibility for Krogers pension investments, and I serve as a Trustee for one of the 33
multiemployer pension plans in which Kroger participates.
I. About the Kroger Co.
Kroger is one of the largest retailers in the world, operating 2,425 supermarkets,
789 convenience stores, 337 fine jewelry stores and 37 food processing facilities. We
have operations in more than 35 states and sales of more than $90 billion. Krogers
net earnings margin is just over 1%, reflecting the highly competitive nature of the
retail food industry.
Kroger ranks 23rd on the list of Fortune 100 companies and has been recognized
by Forbes as the most generous company in America. We support numerous charities and more than 30,000 schools and grassroots organizations in the communities
it serves. Kroger contributes food and funds equal to 160 million meals each year
through more than 80 Feeding America food bank partners.
Kroger employs 339,000 associates. Approximately two-thirds of our associates are
covered by roughly 300 collective bargaining agreements (CBAs), making Kroger
one of the largest unionized employers in the United States. Krogers primary union
is the United Food and Commercial Workers International Union (UFCW), which
represents almost 96% of our unionized workforce. Krogers other unions include the
Bakery, Confectionary, Tobacco, Grain Millers International Union (BCTGM), the
International Brotherhood of Teamsters (IBT), the International Union of Operating Engineers (IUOE), the International Association of Machinists (IAM), the
Service Employees International Union (SEIU), the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers Inter-
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national Union (USW), and the National Conference of Fireman & Oilers
(NCFO).
Kroger contributes to 33 multiemployer defined benefit pension plans. In 10 of
these plans, we account for 5% or more of the plans total contributions. On average,
Kroger contributes approximately $250 million per year to these plans. However, as
described in greater detail below, Kroger could be required to contribute an additional $2.3 billion over the long-term (in addition to its contributions to cover current accruals) to fund pension benefits previously accrued under these plans.
II. What is a multiemployer defined benefit pension plan?
A. General Overview
A multiemployer defined benefit pension plan is a retirement plan to which more
than one employer contributes. These plans are jointly managed by a board of trustees and funded pursuant to a CBA. Multiemployer plans were designed to serve as
retirement vehicles for smaller employers and employers with mobile workforces,
where employment patterns prevented employees from accruing adequate retirement benefits under traditional defined benefit pension plan sponsored by a single
company. In other words, multiemployer plans were established so that workers
pensions could be portable as they moved from job-to-job within the same industry.
Multiemployer plans are subject to the Labor Management Relations Act of 1947,
otherwise known as the Taft-Hartley Act. These plans are also subject to the Employee Retirement Income Security Act of 1974 (ERISA) and the relevant provisions of the Internal Revenue Code of 1986. These plans are required to have equal
employer and union representation on the governing board of trustees. In general,
the bargaining parties (i.e., the employer and the union) negotiate the terms under
which employer sponsors contribute to the multiemployer plan. The board of trustees determines the benefits to be provided by the plan, based on the level of plan
contributions and actuarial assumptions. Although the trustees are selected by management and labor, they are required by law to act solely in the interests of plan
participants.
B. Withdrawal Liability
Prior to the enactment of ERISA and the Multiemployer Pension Plan Amendments Act (MPPAA), an employers obligation to a multiemployer plan was generally limited to the contribution obligation established in its CBA. In other words,
a contributing employers exposure to these plans was limited to the contribution
it was required to make during the term of the CBA. Once it made the agreed-upon
contribution, the employer had no further liability. Thus, if it terminated participation in a multiemployer plan following the expiration of its CBA, it did not have
any further liability to the plan.
In 1980, Congress enacted MPPAA. MPPAA was designed to address perceived
problems with the multiemployer pension plan rules, including the possibility that
an employer could terminate participation in a plan without having fully funded its
share of plan benefits.
MPPAA, in turn, strengthened the manner in which pension benefits were protected by requiring contributing employers that terminated their participation in a
plan to make payments to cover their share of any unfunded benefits. This is known
as withdrawal liability.
C. Last-Man Standing Rule
When a withdrawing employer fails to pay its portion of the plans unfunded liabilitiesas is commonly the case with employers that become bankrupt or simply
go out of businessresponsibility for funding these unfunded liabilities is shifted to
the remaining contributing employers. This is referred to as the last-man standing
rule.
Even in those cases where an employer exits a plan and fully pays its withdrawal
liability, the remaining employers are still responsible for ensuring that there is
adequate funding in the future to cover plan liabilities attributable to the exiting
employer. Thus, if the plan has adverse investment experience, the remaining employers must ultimately fund the benefits of the workers and retirees of the withdrawn employer. For example, assume an employer leaves a plan and pays $100
million in withdrawal liability (representing 100% of the amount it owes) but the
plan suffers a 25% investment loss in the following year (as many plans did in
2008). Unless the plan experiences future excess investment returns that make up
the loss, the last-man standing rule requires the remaining employers to make up
the $25 million shortfall. In other words, the remaining employers bear the investment (and mortality) risk for benefits attributable to the workers and retirees of the
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employer that exited the plan (notwithstanding the fact that the employer paid its
withdrawal liability).
D. Implications of Withdrawal Liability and the Last-Man Standing Rule
It is important to emphasize that the last man standing rule effectively saddles
employers that remain in a multiemployer plan with potential liability for pension
obligations of workers and retirees that never worked for the remaining employers,
worked for a competitor of the employers, or who worked in a completely different
industry than the employers. This shifting of risk to the remaining employers places
an unfair burden on these employers, and depending on their financial condition,
could threaten the continued viability of these companies.
Not surprisingly, the last-man standing rule has effectively discouraged the
entry of new employers into these plans. New employers do not want to join a multiemployer plan that could expose them to future withdrawal liability on benefits
earned by employees of other employers, including benefits earned long before the
new employer joined the plan.
E. Multiemployer Plans and the Pension Benefit Guaranty Corporation
Unlike single-employer defined benefit plans, the remaining employers in a multiemployer plan effectively guarantee plan benefits and the Pension Benefit Guaranty
Corporation (PBGC) plays a secondary role. Thus, unlike troubled single-employer
defined benefit pension planswhere the PBGC receives the plans assets, assumes
the pension liabilities, and pays out benefits in the case of a distressed planin the
case of a multiemployer plan, the PBGC loans money to the plan to pay benefits
when the plan becomes insolvent. If this occurs, the pension payments must be reduced to the extent they exceed the PBGC statutory maximum. Currently, the maximum PBGC multiemployer guarantee is $12,870 per year for a retiree with 30
years of service at normal retirement age.
III. Krogers participation in multiemployer defined benefit plans
Like many retail food employers, Kroger began participating in multiemployer
plans in the 1960sin an era during which its exposure to these plans was limited
to the contribution it was required to make during the term of its CBAs. Thus, its
decision to participate in these plans was made well before the transformational
changes made by ERISA and MPPAA.
Employers in the retail food industry operate distribution centers and food processing facilities and transport goods between these facilities and store locations. As
a result of its transit operations, Kroger, like a number of food employers, became
contributing employers to trucking industry multiemployer plans during the
1960sat a time when trucking companies dominated participation in these plans.
As a result of the dramatic consolidation in the trucking industry since the 1980s,
some of these plans have ceased to be trucking plans, and food and beverage employerslike Krogernow represent the majority of contributing employers.
The effects of the market consolidation in the retail food and trucking industry
was keenly felt when the 2001 tech bubble burst. The combined effect of the market
consolidation and those losses were exacerbated by the 2008 stock market crash.
These market events, together with the dramatic consolidation that has occurred in
the trucking and food industries and the structural problems inherent in the multiemployer rules that have discouraged new entrants into the plans, have led to the
current funding concerns.
As described in our annual report, Kroger could be required to make future contributions of an additional $2.3 billion (in addition to its contributions to cover current accruals) to fund previously accrued pension benefits under the multiemployer
plans in which it participates. Approximately 70% of this exposure is attributable
to five of these plans. Importantly, a large portion of the $2.3 billion that Kroger
could have to contribute is attributable to workers and retirees who never worked
for Kroger.
IV. Kroger as an industry leader
A. Krogers Proactive Actions to Address Underfunding
Kroger has been innovative and forward-thinking in its approach to multiemployer pension funding issues. For example, in response to funding concerns, union
and Kroger trustees have worked together to address the funding of the 11 multiemployer plans with a Kroger trustee through a combination of contribution increases
and benefit adjustments. In addition, Kroger is a long-time proponent of multiemployer funding reform including increased transparency. Since 2005, Kroger has
made disclosures in its Annual Report with respect to its participation in multiemployer plans, including the theoretical estimate of its aggregated exposure to the
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underfunding in such multiemployer plans. Kroger supported the efforts of the Financial Accounting Standards Board for greater financial statement disclosure of
multiemployer plan exposure.
In 2011, Kroger acted to address underfunding of four UFCW multiemployer
plans, in which it was effectively the last man standing, by negotiating the merger
of these four plans into one, new plan. In this case, Kroger associates accounted for
over 90% of the active participants in these plans (which covered almost 30% of
Krogers represented workforce). Together, the four plans had a current market
value funded ratio of about 73% and over $900 million of unfunded liabilities, about
$200 million of which was attributable to workers and retirees who had never
worked for Kroger (i.e., amounts that were shifted to Kroger on account of the lastman standing rule).
As part of the merger, Kroger agreed to accelerate its share of funding to the plan
and fund the liabilities attributable to workers and retirees of employers that previously exited the plans. Kroger also made a long-term commitment (until 2021) to
a defined benefit plan that is designed to provide competitive retirement benefits
for career Kroger associates covered by the new consolidated plan. In January, 2012,
Kroger contributed $650 million to facilitate the merger of the four plans and to
eliminate most of the current underfunding. As a result of this contribution, the new
consolidated plans current market value funded ratio rose from approximately 73%
to 91%.
B. Structural Impediments Prevent Faster Funding of Underfunded Plans
Notwithstanding these efforts, Kroger still faces significant exposure from underfunded plans, as do hundreds of other employers. The current funding structure of
multiemployer plans discourages companies like Kroger from addressing those plans
in which Kroger is not the dominant contributing employer. This is because the current funding rules effectively prevent employers like Kroger from eliminating their
share of plan underfunding, unless the other contributing employers can be persuaded to take similar action (or the plan attempts to address the issue through
special withdrawal liability rules and contribution agreements).
For example, the actions Kroger took last year to address underfunding in four
of its multiemployer plans would be difficult to replicate for plans in which Kroger
is a significant, but not dominant, employer. Special contributionssuch as the
$650 million contribution Kroger made to the new consolidated planwould improve the overall funding of the plan but would effectively benefit all contributing
employers. However, unless other contributing employers can be persuaded to make
special contributions, there is little reason for Kroger to unilaterally fund these
plans. To illustrate, if Kroger is an equal participant in a multiemployer plan with
four other employers, 80 cents of every additional dollar Kroger contributes towards
the current underfunding would serve to reduce the overall plan liability of other
contributing employers, and would actually increase Krogers share of the plans remaining unfunded benefits if Kroger were to withdraw.
In the case of the new consolidated plan, Kroger took action only after concluding
that because it was already the last man standing, the advantages of plan consolidation outweighed the cost of the additional contribution dollars. While special withdrawal liability rules and contribution agreements could be fashioned to encourage
others contributors to follow Krogers example, these steps would have to be voluntarily adopted by the plan trustees and cannot completely address all of the impediments to accelerated funding under current law. Unless other contributing employers can be persuaded to make a similar contribution, the current system effectively
discourages employers from committing significant dollars to address underfunding
in these plans.
V. Suggested concepts Congress may consider
A. Continue Funding Discipline Inherent in PPA Rules
The Pension Protection Act of 2006 (PPA) was designed to impose discipline on
pension funds and bargaining parties to ensure that the bargaining parties and plan
trustees acted responsibly and established reasonable benefit and contribution levels. The PPA also provided needed transparency for multiemployer plans. Prior to
PPA, even large employers like Kroger had difficulty securing information about the
plans to which they were contributing. Although the PPA included rules requiring
funding discipline and additional transparency, it did not change the basic structure
of the multiemployer pension plan rules (e.g., withdrawal liability or the last-man
standing rule).
The PPA rules applicable to multiemployer pension plans are scheduled to sunset
at the end of 2014. Congress should act to continue the funding discipline imposed
by the PPA by requiring bargaining parties and plan trustees to establish benefits
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based on available contribution levels, and to eliminate current underfunding over
a reasonable period of time. However, the tools currently available to plan trustees,
employers and unions wishing to responsibly address plan underfunding issues have
proven to be insufficient. The parties will need greater flexibility in order to develop
and implement the necessary measures to address the underfunding issue in a mutually satisfactory manner.
B. Greater Flexibility
Multiemployer plans, labor unions and employers are working together to develop
policy recommendations that would address the current underfunding of multiemployer plans. Because such a substantial proportion of our workforce relies on these
plans to secure their retirement, and because Kroger has had to devote significant
resources to fund the benefits of other workers in these plans, Kroger is deeply invested in finding a solution to these challenges. Kroger is committed to being part
of the problem-solving process.
What is clear is that multiemployer plans and bargaining parties must be provided with greater flexibility to address the underfunding situation. Given the
unique circumstances of each plan, the parties should be afforded as much flexibility
as possible. For example, the fortunes of some plans could be improved by encouraging consolidation as a means of promoting greater efficiencies and reducing expenses.
Plan trustees, unions and employers should be encouraged to take responsible
steps to place underfunded plans on solid footing. The parties need support and
flexibility so they can determine the best course of action to improve their funding
situation. There is no easy solution to this problem, and the way forward is unclear.
But solutions exist, and by working together, we can secure the retirement benefits
our employees are counting on.
VI. Conclusion
Kroger applauds this Subcommittee for its leadership in holding this hearing and
beginning the process of addressing the structural problems facing the multiemployer system. We are grateful for the opportunity to tell our story, and we look forward to working with you, the multiemployer plans and labor on a solution that will
ensure the continued viability of the multiemployer system.
Chairman ROE. I thank the panel. As I said, you all laid out the
problem very well.
It is the solution that is going to be the problem, as you said, Mr.
Henderson, and I want to tell you, you have my full attention, and
that we willthat you have my promise to work with you all as
best we can to help find some solutions here.
So let me start by saying that I started out my career in a defined benefit program, and we changed to defined contribution program 25 years ago because we saw we couldnt fund it. And I
served on the pension committee in my practice, which has 100
providers and 450 employees. So I do have some experience there.
I was also mayor of our local city, and what I noticed was that
we werewhen I started in 2003 as a city commissioner we were
paying 12 percent of payroll in retirement, and when I left in 2008
it was up to 19 percent to come to Congress. And Ms. McReynolds
has laid it out, and I want to startwe realized we could not continue that. The taxfuture obligation to taxpayers was
unsustainable.
So now our cityactually two cities in my districthave changed
to a defined contribution plan and capped those liabilities. So that
may be something you have to look forward. I realize these are contractually done in ain union contracts, and you have toobviously to sustain those.
Ms. McReynolds, I was fascinated by your comments and how
much$10.17 an hour in pension costs and $17,000that is an astonishing amount of money, and quite frankly, it is to make up a
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previous liability. If you put $17,000 per employee they wouldeverybody in your business would retire multiple wealthy.
So how do weI am going to start with you and then, Mr. Henderson, I want you to chime in, because you are out there trying
right now to run your businesses and not go broke. So I am going
to start with you. What suggestions do you have? And I heard Mr.
Hendersons four ways.
Ms. MCREYNOLDS. Well, I think, you know, you heard a variety
of comments, you know, across the witnesses that are testifying
here today, Mr. Chairman, and, you know, I appreciate the perspective of others and other plans. You know, our specific issues relate to the trucking industry, and, you know, really what you had
in 1980 when these rules came into placeyou know, the deregulation of the industry and then the ERISA rules that caused us to
have responsibility for employees who never worked for us, you
know, the industry was much different.
Over time we have had the failure of a number of companies that
were former contributors to these plans, and the current situation
is that we are acting as the PBGC for the trucking industry. Our
primary solution, you know, needs to involve eliminating an obligation for orphaned retirees who never worked for our company.
Chairman ROE. What percent of youryou may have said it; you
had a lotwhat percent of your contributions are for orphaned employees?
Ms. MCREYNOLDS. We believe that it is between 40 and 50 percent. We know 50 percent of our contributions go to Central States.
We have had factual information come from them that suggests
that 50 percent of our payments are for orphaned retirees. The
other funds have not given us the direct facts, but we believe
across the board it is similar, so I would say between 40 and 50
percent of what we pay
Chairman ROE. Significant amount.
Ms. MCREYNOLDS [continuing]. A significant amount. It is north
of $60 million a year for people who never worked for our company.
So our best solution is going to involve a solution for those retirees
of defunct employers
Chairman ROE. So here your business is. You are trying to compete in this market
Ms. MCREYNOLDS. Right.
Chairman ROE [continuing]. With a huge disadvantage financially to try to go out and get a contract.
Ms. MCREYNOLDS. That is right.
Chairman ROE. Mr. Henderson, I would like you to comment.
Mr. HENDERSON. Well, to the last point, we also compete in a
highly competitive industry and many of the new entrants in our
industry are notdo not work under collective bargaining agreements, which adds additional pressure to our business.
I guess the best way for me to answer that question is probably
from my experience as a trustee on these multiemployer plans.
First comment I would make is that I appreciated as a trustee the
provisions of the Pension Protection Act. When a plan goes in the
red zone status and that clock starts running it puts the necessary
pressure on trustees to collectively cooperate and come up with solutions, which I think we have done.
39
And in the case that we are talking about here it is clear that
the last man standing, or the implication of orphans, is a major
problem in these plans, and in fact, in our case the four plans that
we consolidated lastwell, January 1st of this year, they collectively had approximately $3.5 billion worth of liability, and almost
$1 billion of that liability came from orphans in those plans.
Chairman ROE. My time is expired.
I am going to ask a question later, Mr. Sander, why you believe
that planyour plan is financially solvent. You cant answer it
right now because my time is expired, but I am going to come back.
Mr. Andrews?
Mr. ANDREWS. Thank you.
This is a refreshing panel because not only did you lay out the
problem but many of you started to talk about the solution. I would
like to follow up on that.
Do we have a consensus here this morning that court decisions
or law that would let companies walk away from their liability in
bankruptcythat is, discharge those liabilities in bankruptciesis
undesirable and should not be the law? Does everybody agree with
that?
Mr. SANDER. Think so.
Mr. ANDREWS. You should not be able to discharge these departure liabilities in bankruptcy. Does anybody disagree with that?
Okay. That doesnt make the present problem any better but at
least it keeps it from getting a lot worse. It would be catastrophically bad, in my opinion, if that happened.
Number two: Mr. Shapiro outlined that we had 20 percent of the
plans in the green zone I guess the beginning of 2009. That has
migrated to about over 60. So something is working.
Does everybody agree at least thematically that we should take
the incentives in the 2006 law that helped make that happen and
reconsider those and maybe strengthen them some? Everybody
agree with that, at least conceptually? Okay.
Here is the hard one: I think there are some plans for whom
those incentives dont work because they have a huge cash flow
problem, and I think really that is what Ms. McReynolds is talking
about. We could say that, you know, you have 2 years to get from
red to yellow and 2 years to get from yellow to green and I think
that might put your trucking company out of business, and it
would hurt Krogers big time.
So what we dont want to do is kill the goose that is laying the
golden egg. So I think there are some plans for which there is a
cash flow problem here that the present contributors are just not
going to be able to handle on their own. Does everybody agree with
that presumption?
Ms. MCREYNOLDS. Yes.
Mr. ANDREWS. Okay.
Would it help solve that cash flow problem if there were a credit
facility available that would help the fundin effect, literally put
cash into the fund, borrow it, put it in, and amortize that cash over
the future in order to reduce present contributions? Would that be
a good thing?
Yes. I dont think your mike is
Ms. MCREYNOLDS. Yes. I would like to speak to that.
40
The way that additional funding could help is if it does result in
reduced contribution levels for employers.
Mr. ANDREWS. Lets say that
Ms. MCREYNOLDS. I mean, you have to have the
Mr. ANDREWS. Lets say that we wrote a rule that said that is
the only way you could borrow the money, that the only way that
you could borrow it would be if the proceeds went exclusively to
buy down the contribution for present employeesor employers,
rather. Would that work?
Ms. MCREYNOLDS. Again, if it resulted in us no longer having to
bear the burden of employees that never worked for us
Mr. ANDREWS. What would a
Ms. MCREYNOLDS [continuing]. That would be a good
Mr. ANDREWS. You have estimated that as maybe 40 percent of
your contributions?
Ms. MCREYNOLDS. Yes.
Mr. ANDREWS. Lets say purely hypothetically we were able to
knock that 40 percent down to 10 by taking some of the pressure
off in cash flow. What would that do for your trucking company?
Ms. MCREYNOLDS. That would be a substantial improvement
from where we are today.
Mr. ANDREWS. What would that do for Krogers?
Mr. HENDERSON. Well, in our casethe best example I suppose
I can give is the consolidation that we achieved in late 2011. In the
four plans that we consolidated those planswe were the overwhelming contributor. We were, in fact, the last man standing.
Under the rules of PPA all those plans were in the red zone, so
we had enactedthe trustees had enacted certified rehabilitation
plans.
Mr. ANDREWS. Right.
Mr. HENDERSON. And if you added them all together Kroger was,
over the course of 7, 8, 9 years, largely responsible for funding all
of the unfunded liability. Realizing we had that liability and realizing that as one of the last remaining conventional retailersgrocery retailers in the United States, given our strong balance sheet,
we actually concluded that we could go to the regular capital markets and borrow money at a rate that was very favorable to us.
Mr. ANDREWS. So I think we have a sort of three-tier issue here.
We have got some plans like the ones that you are in, Mr. Henderson, where the capital markets, of their own volition, might put up
some of that money. There would be a second tier where they
wouldnt but perhaps consideration of asome guarantee would
draw them into that marketplace.
And there is a third level where they wouldnt at all because they
are in such trouble, and that suggests that we at least consider
some kind of publicly provided credit facility that might get you out
from under this. And I would just outline this as an analytical way
of looking at this.
I would also say this to you: I dont think anybody should have
any plan should have access to either the guaranty facility or the
direct loan facility unless it makes the kind of reforms that you are
all talking about here, unless it maxes out internally on what it
can do. But I think it might be a way to go after that group that
41
is thethat is really hurting and find a way to get them over the
hump, and I would be interested in exploring that idea with you.
Thank you.
Chairman ROE. I thank the gentleman for yielding.
Mr. Rokita?
Mr. ROKITA. Thank you, Mr. Chairman. I would like to yield as
much time as you would like to consume to you, sir, so you can follow up your questioning.
Chairman ROE. Mr. Sander, obviously yourthe plan you represent is relatively healthy, and obviously what would make all
these plans relatively healthier would be about a 10 or a 15 percent
improvement in the stock market, and interest rates changing
would help a lot.
But what is the difference between yoursI think I understand
it, but for the record I want you to explain the difference between
what Ms. McReynolds is experiencing and maybe Mr. Henderson,
and what you have experienced.
Mr. SANDER. Sure. First of all, I would like to thank Ms.
McReynolds for the footnote in her testimony which referenced our
plan and was very complimentary about the funding levels that our
trustees have maintained.
I really dont have the experience or the knowledge to speak to
other plans other than the Western Conference, but I can give you
an idea about, having been in this position since 1992, the steps
that our trustees have taken. Maintaining strong funding has always been the guiding principle of the Western Conference Plan,
and the trustees have always, if you will, lived within their means
when it came to using reasonable actuarial assumptions and investments assumptions and then structuring the plan of benefits so
that if we received reasonable investment returns they were not
going to be creating unfunded liability for employers.
I think the other thing that is so critical is our trusteeslabor
and management, working togetherhave always made hard decisions about the structure of the plan when it was necessary. The
dot-com bust, frankly, was a really difficult time for plans. Not as
difficult as 2008, but difficult. And out trustees, actually at the
unions suggestionunion trustees suggestionmet and cut the
accrual rate for future benefits, the earnings formula, proactively
so that the plan could return back to full funding as quickly as possible.
So that level of cooperation has always been a real trademark of
the Western Conference Plan.
We are fortunate to have a diversity of employer industries so
that if, for instance, construction falls on hard times for a year or
2 we will find another industryfoodthat is very steady or is
growing, and this has really provided a cushion for us and it is a
real strength for our plan, and other plans lack it. And we have
been very open with our employers; we are very open with the local
unions. We are very, very transparent.
We have always taken the position that we want to be the plan
of choice. You mentioned, Mr. Chairman, your own personal experience. We have a lot of small employers in our plan. We have gone
out, met with these employers at their request, we have said,
Look, this defined benefit formula is the best place for your em-
42
ployees to be. If you bargain this rate of contribution, we stay well
funded, then that is all we are going to be asking of you. Pay it
accurately, pay it timely, and we will take care, on the trustee end,
of producing a good family of benefits for your employees. And
that has really worked successfully for us.
Chairman ROE. I think one of the things that has happened is
when the actuaries have assumed a 7 percent accrual rate, and
that is just notcertainly in the last 10 to 12 years it hasnt been.
The 1990s, yes, but the last 10 or 12 yearsnow, Mr. Shapiro
pointed out, I think, the perfect storm, when thethe 1990s, when
things were going along just great, when you go over 100 percent
funded then the employer was punished if they put more in, and
that created a perfect storm where you couldnt get itthere are
going to be peaks and valleys and we havent rejected the economic
cycle. It will go up again; it will go down again. So we have to be
able to get through those times, and I think that is something I am
going to look strongly at is to allow those deductibilities to go to
be overfunded for a little while. I mean, some plans went years
without putting any money in there.
I am going to yield back to Mr. Rokita. I didnt mean to use all
of his time.
Mr. ROKITA. Thank you, Mr. Chairman.
Appreciate everyones testimony.
Mr. Henderson, I particularly appreciate you being here. My father-in-law was a Kroger union truck driver for 30-some years, although I think I botched that number exactly. So really appreciateI learned a lot through him and I learned a lot through all
your testimony here today.
If I can get this question in really quick to Mr. Ring, however:
Your testimony painted a sober picture of the situation facing
PBGC. Program has a deficit of $2.8 billion and you say it is reasonably possible that it will take an additional $23 billion in obligations to multiemployer plan participants.
Can you explain how and when PBGC provides financial assistance to insolvent plans?
Mr. RING. Yes. As a plan becomes insolvent it is actually a pretty
orderly transition. Notice is provided to the participants, benefits
are cut to what is known as the PBGC minimum, and the plan
then starts paying benefits at a lower rate, so there is an automatic
benefit reduction. And then the plan trustees petition for essentially what the law refers to as a loan from the PBGC, and the
PBGC picks up payment for all those pension benefits going forward.
Mr. ROKITA. Thank you. Time is out.
Chairman ROE. I thankMr. Rokita.
Mr. Kildee?
Mr. KILDEE. Thank you, Mr. Chairman.
Mr. Shapiro, can you discuss how more investment in international markets would affect the long-term stability of multiemployer pension plans. There has been discussion of broadening out
the investments. Have you done any looking at that or how that
may affect it? We are living in a global economy. Does that pose
too many dangers or might it have some opportunities?
43
Mr. SHAPIRO. That question actually has come up a fair bit in
our Retirement Security Review Commission. One of the steps that
we took early on in that process was to invite several investment
experts from various firms to talk to us about what they see happening in the equity markets in the coming decades with the particular question that we put to them, which is, many of our funds
are assuming or looking forward to, in their budgets, 7 or 7.5 percent return and we wanted them to tell us if they felt that that was
reasonable going forward. Certainly historically it has been very
reasonable over the long term, but that is not the same question.
Is it reasonable going forward?
And all of them, you know, gave us the answer. They felt that
it was but they all caveated the answer with some qualifications,
as investment people tend to do, and what they said was that in
order to achieve that going forward you really need to be looking,
you know, more globally than you have been historically, that there
is a need to diversify assets outside of traditional U.S. equity markets and to look for more innovative strategies that involve foreign
countries and also innovative strategies domestically.
So it is certainly our belief that if our plans are going to achieve
those levels of return going forward that it would help them to embrace a more global approach to investing. And plans have already
been doing that. If you look back over the past 5 or 10 years, multiemployer plans have absolutely been gradually increasing their investments internationally. I think that is a good trend and one that
I see continuing.
Mr. KILDEE. You at the table down there, you have an enormous
responsibility. We have an enormous responsibility. I have been on
this subcommittee for 36 years and I am leaving this subcommitteeleaving Congressat the end of this year. And how
well or not well have we done?
What are some of the good thingswhat are some of
Mr. ANDREWS. Has the gentlemans time expired? I worry about
that answer.
Mr. KILDEE. They can answer my question, cant they?
Anything good that you say weyes, Mr. Shapiro?
Mr. SHAPIRO. I think PPA was in large part a very good thing.
The Pension Protection ActI wish I could remember who said
this, because I quote it all the time and I feel like I am not giving
proper credit, but in the multiemployer world the Pension Protection Act, in many ways, legislated good practice. It didnt really create new ideas that plans should have been doingwe felt that
plans always should have a long-term focusbut under the rules
prior to PPA there was effectively an option for plans to kind of
look very short-term at their picture and not look ahead.
PPA put in place rules that said, You cant do that anymore.
You must look forward. And that, I think, is the strongest thing
about PPA, and I regard that as being a tremendous improvement
to our system.
Mr. KILDEE. Well you give me some comfort, then, as I leave
Congress. We did do something well there. Thank you.
Mr. SANDER. I could speak to that, too. Thirty-six years brings
you almost back to the passage of ERISA itself, and Congress has
taken a focus on retirement security and recognized it as a very im-
44
portant objective. The PPAI agree with Mr. Shapirowas a necessary and a good framework to carry us forward into this century
and the needs.
One of the real privileges I get in this job is to meet with some
of our plan participants who arewho have been in this plan and
receiving benefits sometimes for decades. We have over a dozen
that are 100 years old and older, and Iwe have a large group that
are in the 90s and heading toward that 100 year old.
When you meet with these folks again the universal comments
that we get is they are grateful for the security of the plan, they
are grateful for the structure, they are grateful for the fact that the
plans are built in a way to provide real retirement security. And
all of this, of course, on the defined benefit end comes from the
work of ERISA and from the subsequent legislation, and we certainly see it every day in our work.
Mr. RING. I dont want to beif you dont mindI dont want to
be a downer on that, but the one area where I think Congress, and
frankly, the industry has not addressed the problem is really dealing with these particular industries where the demographics have
left the plans with a substantial number of what has been referred
to as orphans. And it is an issue that really needs to be addressed.
There are many funds that arehave a diverse population, many
employers, but there are a number of funds that dont, and the current employers are saddled with the burden of really, as Ms.
McReynolds says, being the PBGC for the rest of the industry.
Mr. KILDEE. Thank you very much.
Thank you, Mr. Chairman.
Chairman ROE. I thank the gentleman for yielding and for his
36 years of service.
Dr. Bucshon?
Mr. BUCSHON. Thank you, Mr. Chairman.
Ms. McReynolds, your testimony noted several quotes from the financial analysts who are concerned about ABFs exposure to multiemployer plans. A recent Credit Suisse analysis painted a stark
picture for these plans.
Regardless of whether you agree with the report or not, is it fair
to say that financial analysts and eventually the financial markets
take these liabilities into account when looking at your stock
prices, determining stock prices?
Ms. MCREYNOLDS. Absolutely fair. It is the case that they do.
You know, there are times when it is a higher profile issue, and
obviously, you know, upon the heels of the Wall Street Journal article and, you know, the time after that, you know, there are, you
know, many more questions about it, but one thing that it does in
terms of our companyI meet with shareholders oftenis it is a
complexity. It is a nonsensical result that we have that we have
to pay for people who never worked for us, and that it is a tremendous difficulty for someone who is trying to understand the direction of the company, you know, what impact that can have on the
company going forward.
And I believe our company has done a tremendous job over the
years in addressing that, but going forward, an increasing burden
there, or a continuing burden there, is going to, you know, have an
impact on our company that I think others in the industry and the
45
shippers dont want it to have because our company is a high-quality carrier and wants to remain that.
Mr. BUCSHON. Mr. Henderson, are most of the people in the
your competitorsdo they have defined contribution plans or defined benefit plans? I mean, what are the new people getting into
this typeI am assuming there are always businesses coming into
and out of your industry. What is the trend? Because it seems to
me nationally the trend is defined contribution plans. Is that true?
Mr. HENDERSON. Yes. That would be the trend among newer entrants into our industry.
Mr. BUCSHON. I yield back.
Mrs. McCarthy?
Mrs. MCCARTHY. Thank you.
And I appreciate everybodys testimony, and it is very refreshing
to have everybody at the table agreeing that we need to look at
something. I actually had voted for thein 2006, the passage of the
Pension Protection Act. One of the things, unfortunately, that we
couldnt get into it was making it more flexible that if you were
having good years to be able to put more money into it.
Most of us kind of look that way when we are saving for our future, Hey, it is a good month. I can put another $50 away, or
something like that. I hope that we are able to look at that, because I do believe that we will come back and we will see, possiblyinterest rates going back to 7 to 8 percent, but that is going
to be down the road, so it is unrealistic for anybody to expect. I am
hoping that I get 4 to 4.5, to be very honest with you, especially
at my age.
One question I would like to ask, because I have a curiosityand
I know you alland I am not talking about what everybody gets,
but the average retiree that retires today, what would their average pension be when they retire, if they retire at 65?
Mr. Shapiro?
Mr. SHAPIRO. I brought with me my book just in case such a
question might come up. We have some survey data that I dont
have memorized but I can certainly reference for you.
The NCCMP started about 3 years ago a survey that we send to
all multiemployer plans asking them some very basic questions
about what is going on in their plan and we compile the results annually in a report. The first year we did this was in 2009. We got
a spectacular response that year. We had nearly 400 plans respond
out of a universe of about 1,400 plans, which exceeded our wildest
expectations.
And if you give me just a moment to find the right page I will
quote the number for you. From that report the median benefit
paid to a multiemployer plan participant from those 400 plans,
which we believe is representative of the whole universe, was approximately $900 per month.
Mrs. MCCARTHY. $900 a month.
Mr. SHAPIRO. $900. So the point there being that by and large,
you know, these plans are paying very modest benefits to people;
they are not exorbitant.
Another measure to look at is, you know, obviously a large portion of the retiree population is older, retired many decades ago, so
46
we also asked the question, What is the average benefit you are
paying to someone who retired in the past year, to get a better
sense of current benefit levels. And there the answer was approximately $1,400 per month. So certainly more of a reasonable
amount, but by no means exorbitant.
And with thatMike, do you have some numbers
Mr. SANDER. Yes. I speak specifically to the
Mrs. MCCARTHY. Mr. Sander, I know you are going to answer
that question, but I also want to say that I am very impressed on
the Western Conference Plan. You seem very realistic.
What I am asking is, when youlets go back to 2008. What
were you basically projecting as a possible interest rate? Were you
looking at the 7 or 8 percent or were you
Mr. SANDER. In 2008?
Mrs. MCCARTHY. Yes.
Mr. SANDER. Seven percent has been our assumption for a period
of time.
Mrs. MCCARTHY. Okay. Go ahead and, you can finish the other
part of the question.
Mr. SANDER. I was just going to mention that from our plans
standpoint itour average benefit for a normal retiree at age 65
and it does rangeranges because of the contribution rate, which
can be, obviously, a factor in driving it
Mrs. MCCARTHY. Sure.
Mr. SANDER [continuing]. Is closer to $1,200 to $1,300 a month.
We have some that are quite a bit higher due to higher contribution rates and longer lengths of service.
We also have a food processing component, which has been a history in our plan foralmost since its inception, where the contribution rate is very low but individuals still receive a regular monthly
benefit, albeit lower, out of that industry, which is very valuable
to them.
Mrs. MCCARTHY. And the other question I would like to ask is,
obviously there are certaindepending on how you are working
we work in CongressI worked as a nurse for over 32 years before
I came here; I probably wouldnt be working as a nurse at this particular time in my life because of my age, but being that you work
with unions, because unions are in all your plans, from what I understand, and if they are construction or whateverphysical hard
workwhat is the average age of those people actually going in to
look for retirement?
Mr. SANDER. To our plan specifically, again, the age is about 61
years is the average retirement agethe people draw their benefit.
Mrs. MCCARTHY. Because I am only thinking of my two kid
brothers who are about readyone has retired and he is 6 years
younger than me, and the other one will probably retire by at least
62, only because physically their legs are gone, their hips are gone,
their knees are gone. Both of them just had their knees done in the
last 2 weeks. So that is a consideration, too, isnt it, as far as having a definedas far as having to make sure that they have some
sort of insurance before they can start collecting, going on Medicare, going intocollecting Social Security, even?
Mr. RING. In many of the transportation fundsor plans, the retirement ageeligibility for retirement age is much lower, and you
47
have people retiring, you know, early 50s, sometimes earlier. And
that is largely because it is a very, very physically demanding job,
but that means somebody is going to be receiving a pension for the
next 40, 50 years.
Mrs. MCCARTHY. Police officers, too.
Mr. RING. Correct.
Mrs. MCCARTHY. It is mandatory that they retire at a much earlier age than most people do. But you are right, these are things
to be considered, but I definitely am interested in the Western Conference Plan to look at as a model and the flexibility that obviously
we are going to need.
Thank you. I yield back my balance of my time.
Chairman ROE. I thank you for yielding.
And, Ms. Noem?
Mrs. NOEM. Thank you, Mr. Chairman.
And my question would be for Mr. Sander. I know that you are
tasked with the responsibility of not only representing the employees and the employer trustees, but also the labor and union trustees, as well, when you make management decisions, and I was
wondering if you would briefly describe that for us, how you strike
that balance in making those decisions about the plan, how you
represent management and labor at the same time, and also how
you represent the plans participants?
Mr. SANDER. One of the privileges of working on this plan for a
long as I have is to watch this board of trustees in operation. As
I mentioned before the funding integrity of the plan has always
been job one, principle one for this board. And as a result of that
I think it has really engendered a pride in what this plan has accomplished over the years and what it is accomplishing.
So we have an employer chairman, who represents the management side of the board; we have a union chairman that represents
the union side. They work together every day in trying to strike
balance in the various interests of moving the plan forward.
And then we have a variety of committees. We have a very intensive committee structure that has delegated authorities from the
board to investment committee, plan design committee.
These types of committees work together. They are equal number
of employer and union trustees on the committee. They make recommendations up to the full board. And this has worked very effectively for us.
As far as the participant end, I cannot remember a time when
some decision was in front of this board and the question was
raised, Remember, we act in the best interest of the participants.
Lets be sure we have got that covered first before we go to the secondary considerations. So that really has always been the touchstone for this plan.
Mrs. NOEM. Okay. Well, thank you. Just as a quick follow up,
then, having access to plan financial information is important, but
also not only to multiemployer plan participants but also to employers who are deciding whether to participate in that plan. So
what stepswhat action steps does the Western Conference Plan
have you taken to ensure that its financial information is transparent, that it is open and accessible to both the employees and the
participants that are effected?
48
Mr. SANDER. We have taken a number of steps. Transparency is
something we feel very strongly about. As I mentioned before, we
always feel the more you look at this planemployer, union, participantthe better you are going to like it.
So our main source of disseminating information right now is our
Web site, which receives several thousand hits a month. And we
have posted on there the last 3 or 4 years of audited financial
statements, actuarial reports, Form 5500s, and contact information
if the interested party wants to inquire further.
We also put our annual funding notices and any other information which becomes available. It is on there the next day, as soon
as it is published by the appropriate party.
We also do a variety of meetings. When an employer isfact, I
just offered Ms. McReynolds a meeting in Fort Smith, Arkansas.
We are ready to come out and lay out what this plan is about
our objectives, our history, how our funding is structuredmeet
with the employer community, as we do with the union community
and participants, to be sure they understand what is going on with
the plan and their confidence in the plan can remain strong.
Mrs. NOEM. Well, thank you. I appreciate that.
Mr. Chairman, I yield back.
Chairman ROE. I am going to take a prerogative of having a
if anyone has anymore questionsa second round of questions, this
is such an important issue.
And you have taken your time to come so I want to be sure that
we get allextract all the information we can.
I certainly understand this problem from a personal standpoint.
I had a father that was a factory worker who at 50 his job went
offshorewent to Mexico. He actually ended up, after 30 years,
after World War II with this plan, with essentially no pension plan.
So I know what it is like as a family to be left out in the cold like
that, and when you make a promise to people you ought to keep
your promise.
But the other side of that, and also, Mr. Sander, one of the
things I found being on our pension committee at work, I was very
interested in it doing well because that is how I was going to retire.
So I had a vested interest in that plan doing well, as I am sure
you have a vested interest in your plan doing well.
I think the problems that I can seeand I thinkthe ranking
member and I have been talking about some solutions up here, is
the commitment to a defined benefit. That is a safety net, and certainly these payments are not overly generous. They are to keep
you out of poverty when you retire and you worked somewhere for
many years.
I know I felt an obligation to my employees to provide them retirement. If you work for me for 30 years I want you to be able to
retire and have a comfortable retirement in your future. I felt a
moral responsibility to do that. So we do agree with we want to
make sure we keep those promises.
It looks like some of the problems is with the orphan employees
you have got more people now receiving benefits than are paying
in, as Ms. McReynolds clearly pointed out. I think the rate of return assumptions ought to be actuarially looked at, not so generous.
49
I think that you have got the remaining companies, like Ms.
McReynolds or maybe less so with Kroger, but they cant stay competitive under thisthere is no way you can whenwe always
hear about health care costs exceedingor forcing us not to be
competitive, well this is exceeding anybodys health care costs,
what you pointed out. So I think the downturn in the economy
I do believe the economy will turn around and get better. I think
this will look better, hopefully, in 2 or 3 years. And right now no
government agency really has a way to do anything. Actually, the
law actually hurt in the 1990s, it actually caused part of this problem.
And I think another problem is the PBGCI mean, we are talking about $9 per participant per year with 10 million people, I
mean, that is two lattes at the airport at Starbucks, so that is definitely got to be looked at.
Have I pretty much touched on all the problems? I am going to
open it up now for you all to give us the solution.
So if somebodyI dont see anybody jumping out of their chair,
but
Mr. SHAPIRO. I will talk
Chairman ROE. Go ahead, Mr. Shapiro.
Mr. SHAPIRO. You know, I definitely dont have the solution at
this point, so I cant truly answer your question as it was asked,
but I can certainly give some thoughts on the directions that we
have been thinking. You know, our commission really has been
asking the exact same questions that you just asked for the past
8 or 9 months. We dont have the answers yet but we are working
very close to a final proposal.
But in terms of, you know, you mentioned earlier defined benefit
plans and defined contribution plans as being the two ways to go,
and in todays environment that is correct. And I think it is pretty
clear to us at this point that defined benefit plans are posing a
problem for employers, as we have seen here and thousands more,
where the risks that they are taking in these plans is more than
they can deal with.
From our perspective, defined contribution plans have a different
problem, which is that there really is no guarantee ofor not even
anything close to a guarantee of lifetime income for participants.
And my personal feeling is that the recent move we have seen to
combined contribution plans in the past decades is setting us up for
a real problem of an entire generation of completely broke 75-yearolds, and that troubles me.
But if you look at, you know, defined benefit plans on one side
and defined contribution on the other, there is an ocean of space
that exists between those two plans but you can combine features
of both in such a way that you, you know, really mitigate and reduce the risk to the employers and at the same time, you know,
provide some real income security to participants. You know, the
whole focus of our commission has been exploring that space and
trying to find how we can find ways to really capture the best features of both worlds and put it into a model that, as of today,
doesnt exist, but we hope will exist when we are done. So that is
my quick perspectives on where we can go.
Chairman ROE. Thank you.
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I yield to the ranking member.
Mr. ANDREWS. Thank you.
I do think we have had discussion about solutions this morning,
led by the chairman and certainly helped by the panel, and I wanted to explore two of the success stories I think that we heard.
Mr. Sander, after the crash of 2008 your fund went down to what
percentage funded?
Mr. SANDER. Mr. Chairman, our PPA percentage was at 85 percent in 2009, which was the lowest point.
Mr. ANDREWS. Okay. And where are you now?
Mr. SANDER. 90.3.
Mr. ANDREWS. And what changes have you made to get that
progress?
Mr. SANDER. Well the trusteesactually, after the dot-com bust
the trustees took the action that I mentioned earlier and they were
able to improve funding to the point where they were able to actually improve benefits on temporary basis in 2006 and 2007. Those
temporary improvements were rolled back beginning in 2009 to,
again, to balance the books, if you will.
Trustees have also taken action with the investment portfolio to
take a look at some alternative forms of investment. We are looking at timberlands and farmland, things which may not return immediately but over the longer term are exceptional opportunities
for long-term growth. So
Mr. ANDREWS. And these reallyI know the decisions were made
in the context of the PPA, but you werent really under any gun
or deadline. These were voluntary decisions that were consistent
with your fiduciary duty, right?
Mr. SANDER. That is correct. The trustees, I think, felt that they
needed to take some steps in order to get back to their historic
funding level goals.
Mr. ANDREWS. Now, Mr. Henderson, you have mentioned consolidation as one of the waysand Kroger certainly put its money
where its ideas were by in effect prefunding some of the benefits
of that consolidation. You should be commended for that.
What other reforms did Kroger participate in, in some of those
multiple multi-plans that you are in. What worked?
Mr. HENDERSON. The situation we found ourselves in was that
we had become the dominant contributing employer to these four
plans, and they ranged anywhere from a $50 million plan, the administrative expenses of which were eating up about 25 cents of
every contribution dollar simply because it was a small plan, all
the way to a $2 billion plan. And when we looked at the underlying
investments in those plans we discovered that there were roughly
100 individual asset allocations that were managingI hate to use
the word, but only about $2.5 billion worth of assets.
And so working with labor and coming up with the solution to
this issue we were able to consolidate the plans. The benefits of
that should be significantly lower administrative expenses to run
the plan, lower asset management feeswhen you make larger
asset allocations you
Mr. ANDREWS. Better net returns.
Mr. HENDERSON [continuing]. Do enjoy lower fees.
Mr. ANDREWS. Yes.
51
Mr. HENDERSON. And then I guess it goes without saying that
when you allocate significantly larger numbers to folks like FIMCO
you do get a higher level of attention to your account.
Mr. ANDREWS. FIMCO would certainly agree with that.
Mr. HENDERSON. They would agree with that. And so we thought
there were a number of advantages to the plan, and also, with interest rate structures being what they are, we were able to take advantage of capital markets
Mr. ANDREWS. Now, what has happened to the funding levels of
some of those plans? Where did they start before these reforms and
where are they now?
Mr. HENDERSON. Before the consolidation all four of them were
in the red zone and had enacted certified rehabilitation plans. After
the contribution that we made the combined plan is now 91 percent
funded. And we were able to actually improve and secure the benefits of those participants.
Mr. ANDREWS. See I think the stories we just heard give us some
guiding principles for what we ought to do here. This was a combination of subtle and gentle incentives to make very hard decisions about benefits and consolidation. I am sure those were not
easy things to do. Coupled with an infusion of cashin this case
from KrogersI am not sure we are going to be fortunate enough
to have a Kroger in every one of those situations.
And where we are not I think we need to explore a rational and
fair situation where we can either entice private capital to play
that role in a balanced and fair way or perhaps, under certain circumstances, provide for more direct loan functions that would help
others. Because what I am hearing from Ms. McReynolds is that
even if the fund she is involved in made all of those reforms the
fact that there just arent enough men and women left standing
that are prosperous to solve the problem. Is that a fair characterization?
Ms. MCREYNOLDS. That is absolutely fair.
Mr. ANDREWS. Yes. And
Ms. MCREYNOLDS. Well, and, you know, one of the things that
hasnt been mentioned yet that I am very concerned aboutI guess
it has been mentioned on the positive side by Mr. Sanderis, you
know, whenever I meet with our employees I have to interact with
them, not necessarily respond because I am not totally responsible
for, you know, the red zone funds, but they are aware of the troubled funds.
$80 million a year is the number we contribute to red zone funds.
And I have to be able to look back and our employees, you know,
who are concerned about whether they are going to have a retirement benefit and we are contributing such tremendous dollars to
funds that need to be improved, and I think your point is right
Mr. ANDREWS. I realize my time is up, but I think that employers
like yours arelike you are in a situation here where you are not
in any way culpable or responsible for this problem but it is a huge
business problem for you and your employees, and I think we ought
to find some more fair way to address that.
Ms. MCREYNOLDS. Yes. Thank you.
Chairman ROE. Thank the gentleman for yielding.
Mr. Rokita?
52
Mr. ROKITA. Thank you, Mr. Chairman.
Hello again, everyone.
Following up on a conversation between Mr. Andrews and Ms.
McReynolds, do the other witnesses have anything to add or take
away from that? Do you agree, disagree?
Mr. Shapiro?
Mr. SHAPIRO. I would like to add one thing, which is, you know,
when you look at the multiemployer plan universe, the actualthe
largest sector of multiemployer plans by a healthy margin is actually the construction industry. That is where most of the plans are.
And they have a somewhat different problem, by and large. They
dont really generally have an orphan problem, per se, but they
have a work level problem. You know, the construction industry
right now is downin the union areasnumbers vary, but easily
in excess of 20 percent, and in some parts of the country it is more
like 50 percent. And much of the problems facing those plans would
be repaired simply by some economic recovery and get some construction going on. I think the vast majority of construction industry plans, even the ones that have some troubles, if they can get
their work levels even halfway back to where they were, you know,
5 years ago those troubles would go away pretty quickly.
So their perspective is a little different than what has been discussed here on this panel.
Mr. ROKITA. Thank you, Mr. Shapiro.
Anyone else?
Seeing none, I wanted to follow up with Mr. Ring again, along
the same lines we were discussing earlier. On page eight of your
testimony, at the last paragraph there you say, What is important
to understand is that in certain sectors of the economy and industries the extent of the multiemployer pension plan problem is much
worse than has widely been reported. Can you get any more specific on that, what you wrote or what has been said here today?
What exactly do you mean and how extensive is this?
Mr. RING. Yes. I would be happy to.
You know, we talked earlier about the fact that some reports say
red zone plans are 27 percent of the overall plans andmultiemployer plans in the country. But of those 27 percent there are a
number of those that are facing insolvency, and
Mr. ROKITA. How many?
Mr. RING. What is that?
Mr. ROKITA. How many? Roughly how many?
Mr. RING. I dont know if you have a number on
Mr. ROKITA. Mr. Shapiro?
Mr. SHAPIRO. I do. It is impossible to come up with a precise figure, and we have tried. Right now we have been estimating somewhere in the neighborhood of 5 percent of all plans have a danger
of insolvency.
Mr. ROKITA. Thank you.
Mr. SHAPIRO. It is not a precise number at all, but that is a ballpark figure of what we are looking at.
Mr. ROKITA. Thank you, Mr. Shapiro.
Mr. Ring?
Mr. RING. Well, and, you know, at our firm we have a number
of multiemployer plans and we meet regularly to talk about issues
53
facing the plans. I am familiar with about a dozen plans with
enough participants that it will not take thetake long to deplete
the PBGCs current funding. So, you now, while we could say, well,
there are a lot of plans that are doing fine and it is just a small
number of plans that are insolvent, those small number can really
wreak havoc relatively quickly.
Mr. ROKITA. Thank you.
Same question to the other witnesses. Anything to add there?
Hearing none, I yield back. Thank you, Mr. Chairman.
Mr. Kildee?
Mr. KILDEE. Just briefly, between the AmericansUnited States
system and the Canadian systemwe have many companies that
operate in both the countries, and their economies are similarare
there elements of the Canadian systemI will address this to Mr.
Sanderthat perhaps we could emulate, embrace, or are there
some elements that we should avoid? Anything we could learn from
looking at our neighbor to the north?
Mr. SANDER. I have really been focused so much more on the
Western Conference side, I think maybe Mr. Shapiro has some
ideas in that regard.
Mr. KILDEE. I defer to Mr. Shapiro.
Mr. SHAPIRO. Another aspect of our commission that, again, that
has been going on for many months now is we actually had people
come and talk to us from other countries to ask the questions of,
how do your plans work? You know, what do you think of them?
What are the strengths and what are the weaknesses?
And we had a fellow come and speak to us a few months ago
from Canada and he gave us a very excellent presentation on how
their plans work. There are some similarities and some differences.
You know, on the surface they looktheir multiemployer plans
look much like ours. The benefit structures I think are similar; the
way they are managed is fairly similar.
But one thing which is fairly different is in most of the provincesand they actually have different rules that vary by provincebut in most of the provinces there is no concept of withdraw
liability. So if an employer chooses to leave they leave and the plan
has to make due as best it can.
And in some waysit is interesting because a lot of the employers that we have that want to leave the system, you know, they
dont leave because of withdraw liability but they also want to
leave because of withdraw liability. Once you take it away there is
not as much reason to leave in the first place.
So it is sort ofit is hard to say what the true impact is of that
concept, but in Canada that concept is absent. What that means is
ultimately if the assets of the plan are insufficient to pay benefits
because of a crisis or because of whatever reason their benefits, in
contrast to ours, are not guaranteed. So what would happen then
is if the fund does not have enough money to pay benefits the
trustees ultimately, after they have exhausted all of their other options of trying to negotiate more money, of trying to fix things perspectively, do have the authority to lower benefits. That is a power
that by and large our trustees do not have.
54
That concept has certainly gotten a lot of discussion with our
commission and I think at this point I cant really comment on, you
know, to what degree we feel like we would be interested in that,
but I can certainly say that we have discussed it extensively.
Mr. KILDEE. Thank you very much.
Thank you, Mr. Chairman.
Chairman ROE. Thank the gentleman for yielding.
Mrs. Roby?
Mrs. ROBY. Thank you, Mr. Chairman.
Thank you all for being here today. We really appreciate it. In
the short time I have been here you have already given me a lot
of insight and I look forward to reviewing the first round of questions that were asked today.
Mr. Ring, can you discuss some of the well-intentioned but possibly constraining legal boundaries limiting plan trustees as they
consider changing the benefits under the law? And I think the perfect example is the anti-cutback rules, but could you expand on
that?
Mr. RING. Well, as was said, the PPA put in place some very,
very good requirements and tools for trustees of plans, and in a
number of the plans that are well-funded and have a broad base
of employers those type of tools are very useful and have kept the
plans in good shape.
The plans that are of real concern are the ones that are facing
insolvency. And in those places, in those plans those tools and restrictions of the PPA actually tie the hands of the trustees to a certain extent.
I serve as counsel to a number of trustees, boards, and they are
incredibly frustrated that they have nothing to donothing that
they can really do except watch the plan slide towards insolvency.
They have cut benefits to the absolute bare minimum. They really
cant cut any further. And they have raised contributions to a place
where they know they are going to bankrupt their contributing employers.
We know of plans that have actually just capped the highest contribution rates because they know and they have gone out and got
studies to show that if they raise the contribution rates any higher
they will put their golden gooses out of business. So those are
there are no other tools, and that is the thing Iand Congressman
Andrews mentioned it earlier, they areI think trustees in particularly in those type of plans need to have some tools to be able
to address these type of funding issues.
Mrs. ROBY. In your experience, I mean, how can plan funding
concerns have affected business or legal decisions made by your clients?
Mr. RING. Well, theso many contributing employers these days
are fixated on this pension problem. Collective bargaining is absolutely focused on the pension problem. When unionized employers
look at their overall labor costs most of the time the wages and
other cost structures are probably in line with their competitors; it
is the pension cost that is just completely off the mark.
And so, you know, in collective bargaining that is ait is a huge
issue. It affects the contributing employers in their ability to attract investors, to get any type of financing. And so it really limits
55
and constrains employers in these plans and their ability to compete in the marketplace.
Mrs. ROBY. Can we just go back for 1 secondthe potential
toolsand you may have discussed this already, but going back to
my first question, can you give some examples of what some of, you
know, the best tools would be that we could provide to deal with
this limiting structure that is in place now?
Mr. RING. Well, Mr. Shapiro mentioned it, it is something that
I think is going to have to be looked at, and that is, there may be
certain financial benchmarks where trustees are going to have to
be able to look at reducing accrued benefits for retirees. It is a kind
of the third rail of pension discussions because no one wants to address that, butand I understand, you know, the sensitivities because these promises were made to the pensioners.
On the other hand, their benefits are going to be cut to PBGC
minimums if nothing is done and it will be an even greater cut.
And in many ways these pensioners, while they continue to receive
their full pensions, the active employees are receiving very little accruals on their pension; they are receiving even less, you know
I have been involved in negotiations for concessions where employees are making 15 percentor they have taken 15 percent wage
concessions, currently.
So, you know, in terms of the shared sacrifice in this economy
maybe looking at some type of benefit modifications for pensioners
is going to be necessary.
Mrs. ROBY. Thank you.
My time is expired.
Chairman ROE. Thank the gentlelady for yielding.
Mr. Thompson?
Mr. THOMPSON. Thank you, Chairman. Thanks for hosting this
subcommittee hearing. A very important issue. When I came to
Congress along with the chairman here in January 2009 some of
the first businesses that I visited this was an issue. These were obviously economic tough times at that point, but some of these were
very solvent, strong companies doing well and the only potential financial threat was trying to deal with these pension programs.
And in fact, the potential programthe pension programs at that
pointand I think itsome of it was an unintended consequence
of the Pension Protection Act of 2006. It was the pension program
and those funding requirements that had almost the potential to
put them out of business, whereas they were solvent, going well
even in tough economic times.
And so I want to come back to the whole issue of competitiveness. Ms. McReynolds, I know you touched on that. You talked
about, you know, the significant differences in terms of pension
costs. Looking at your testimony, you know, talk about 257 percent
higher for those average nonunion employers and it was an astronomical number, your 2011 per employee pension costs were 1,437
percent higher than those competitorsone or two for nonunion
competitors.
I wanted to look at the broader implications of that. What is the
broader implications in terms of competitiveness, solvency on your
business as a result of that issue?
56
Ms. MCREYNOLDS. If we had the orphan retiree problem solved
in other words, we didnt have to bear thethe cost for people that
never worked for us, our company would be much more competitive
in the marketplace. By that I mean, you know, there is a certain
we are in the less-than-truckload business. There is a market for
that, okay? There is a variety of types of customers and they require a variety of service levels and will pay certain prices. Some
of those customers are more price sensitive than others.
What happens to us as we have to deal with this cost is that we
more and more have a smaller slice of that market that is available
to us. It is like the very most premium, where we give, you know,
the highest level of service because we have higher prices, we are
worth it, you know, when you get right down to it, and I wouldnt
suggest that we are not, but if we were more competitive we would
have a broader part of the less-than-truckload market available to
us and that would allow us to grow our company and add jobs to
our company.
And, you know, let me say, you know, again, we are very comfortable paying the retirement benefits for our own employees. We
are very concerned about them having benefits when they retire.
Our basic problem is having to pay for people who never worked
for us.
Mr. THOMPSON. Just as a follow up, you know, one way to ensure
plan solvency is to continually raise contributions. Can you explain
whether these problems can be solved simply by requiring larger
contributions?
Ms. MCREYNOLDS. We have experienced that. I think in my testimony I also reference in our last collective agreement that began
in 2008, because of PPA and the requirements for red zone and yellow zone plans we had a 7 percent increase in our pension cost
every year that actually resulted in 40 percent higher pension
costs, you know, from 2008 until 2013. That was a period of time
where no one was able to increase pension costs because of what
was going on with the economy, yet we had to deal with that.
And so, you know, we are in a situation where because of the requirements under PPA kind of the normal collective bargaining
process cant function the way that it needs to, and I think Mr.
Ring commented about this earlier. We need the tools to be able
to address our costs in a way that make sense at the collective bargaining table rather than having to have ever increasing contributions that just are a burden and make us less competitive.
Mr. THOMPSON. Thank you very much.
Chairman, I yield back.
And I want to thank the panel today, the witnesses, for taking
your time to testify in front of the committee. It has been an extremely informative committeesubcommittee hearing, and I will
yield now to the ranking member for closing remarks.
Mr. ANDREWS. Well, thank you, Mr. Chairman, forand your
staff and our staff for working hard to put together an excellent
panel. I think the members have been educated by this and we
thank the panel for all their preparation.
Again, I think it is both welcome and refreshing that there have
been ideas put forward here about how to address this problem,
57
and I am not suggesting that these are universally agreed to or
that they are all right, but I am hearing some things I think sound
good. One is, with respect to plans that are burdened because of
a lot of orphaned retirees there ought to be some credit facility
available that helps that plan get through the present situation so
it can see the light at the end of the tunnel, at least reduce those
costs. Where the private sector can provide that credit facility,
great; where it cant, I think we need to look at some other mechanism.
I also think that any such credit facility that is made available
should carry with it the obligation to enact some of the reforms we
have heard about this morning so the plan can strengthen itself internally. I think it shouldnt be a blank check; I think it should be
a quid pro quo where if you do your part, if there is truly shared
sacrifice there is a benefit for that shared sacrifice.
I certainly think there should be no discharge in bankruptcy of
a withdraw liability. I think this would be a catastrophic result for
this whole sector and I think working with our friends on the Judiciary Committee we need to address that if, in fact, there is an adverse court decision.
And then finally, for those who are in the enviable position of
being able to choose to overfund their plans, I dont think there
should be any retardation of that at all. I think such overfunding
should be completely deductible. My personal view is that if the
moneyif the employer or the trustees want to they ought to be
able to transfer that money into another ERISA trust, like for
health care, if they want to. I think that we ought to encourage
people to put money away to help their employees in an ERISA
trust under just about any circumstances.
And I think we have learned a lot today, and I am sure some of
those ideas would work, some wouldnt. We would welcome additional ideas, certainly, from the community.
But as I said at the very outset, this is a problem that has a solution. It doesnt require the parties to fight each other, and we
heard none of that this morning. It does require us to listen and
learn, and I think we learned a lot from you this morning.
And, Chairman, I commend you for your leadership on this and
promise you that our side will work in good faith very hard to try
to get this problem fixed. Thank you.
And I want to thank the committee once again, and learnedI
learned a lot today and certainly am committed to try to helpbe
of any assistance that we can be to help solve this problem. And
certainly I think Ms. McReynolds statement is that we dont mind
paying for our employees is one of the most reasonable things I
have ever heard, but for people that have never worked for our
company we have a little bit of a problem with that, and I certainly
get that. I put myself as a fiduciary in a single-employer system
and think, What if I were asked to pay for the pension benefits
of my competitors across town? That is exactly what you are
askedhave been asked to do with this through the way it is set
up.
I agree with Mr. Andrews. I think there are solutions here, and
we are certainly committed to trying to find those, and I think we
58
need to get on with it, because 18 months is notthat is how long
it is between now and 2014.
So I thank you all, and we look forward to working with you.
And being no further business, the subcommittee stands adjourned.
[Additional submissions of Chairman Roe follow:]
July 3, 2012.
Hon. PHIL ROE,
U.S. House of Representatives, Washington, DC 20515.
DEAR CHAIRMAN ROE: As members of the Construction Employers for Responsible
Pension Reform, a coalition of trade associations representing thousands of construction companies that contribute to multiemployer defined benefit pension plans
(MEPPs), wish to express our concern with a statement made by Mr. Josh Shapiro, Deputy Director for Research and Education, National Coordinating Committee for Multiemployer Plans. Mr. Shapiro spoke during the June 20, 2012, hearing on Assessing the Challenges Facing Multiemployer Pension Plans before the
Education and Workforce Subcommittee on Health, Employment, Labor and Pensions. Mr. Shapiro properly acknowledged that recent reductions in industry activity
is a significant problem for construction employers that contribute to MEPPs, but
his response in answer to a question that if the work levels get even halfway back,
their problems will go away vastly understates the multiple challenges construction
industry plans are facing nationwide.
Construction industry employers contributing to MEPPs are in a particularly precarious position at this time. It is true the economic recession has affected the construction industry to a far greater degree than most industries, and the decline in
demand for construction services has led to an extraordinary decline in work hours
for construction workers. At the same time, however, severe investment losses have
devastated plan assets, and rigid Pension Protection Act (PPA) funding rules and
anti-cutback restrictions have put pressure on contributing employers. Bankruptcy
and abandonment by other contributing employers brings even more pressure to
those remaining employers. Unfortunately, the collapse/insolvency of defined benefit
pension plans is a real and immediate problem. Even for plans not currently in a
precarious funding position, collapse/insolvency is a highly predictable outcome.
It is clear that recovery of the construction economy alone will not solve the
MEPP crisis plaguing contributing employers. While plans may be able to improve
their funded status as the construction economy improves, the level of improvement
would likely be insufficient to overcome the combined effects of the economic downturn, decline in competitive market share, withdrawal of contributing employers,
and an aging workforce. The reasons include:
Current and future construction industry economic contractions will lower contribution income, which is based on hours worked; while, at the same time, contribution rates are going up and competition for business is great.
Stock market instability for the foreseeable future. Under the best of circumstances, plans would take 15 years or more to recover from 25 percent-plus market losses incurred in 2008 and 2009.
Shrinking contribution base causing a progressively unfavorable active-participants-to-retired-participants ratioi.e., fewer and fewer construction employers are
contributing to MEPPs, and those remaining have a shrinking market share, causing a decline in hour-based contributions for active participants (workers) while
plans are facing benefit pay-outs to ever-increasing numbers of baby-boomer retirees.
Ironic position of successful employers ultimately at risk because pension fund
and withdrawal liability rules leave the last surviving company with all the liability
for pension fund solvency.
Instability of plans in other industries, such as the trucking industry, affecting
the viability of construction employers that contribute, or previously contributed, to
those plans.
The risk, even for employers contributing to plans not in immediate danger, is
unsustainable. It is an unstable system with very real and foreseeable dire consequences. The industry cannot rely on market growth alone as a solution for these
plans recovery. According to Segal, in 2001 construction industry plans had an average funded ratio of 98 percent; however in 2006, the year construction industry
employment and man hours peaked, plans were only funded at an 80 percent ratio.
As you know, we are committed to developing constructive solutions to the problems facing multiemployer pension plans. We continue to work diligently with a
59
broad coalition of labor and management from affected industries to jointly present
ideas to Congress. Congress and the agencies have a coming window of opportunity
to make needed structural changes to ERISA that will ensure the long-term viability of multiemployer pension plans. We look forward to working closely with you on
that critical project.
Sincerely,
ASSOCIATED GENERAL CONTRACTORS OF AMERICA,
ASSOCIATION OF THE WALL AND CEILING INDUSTRY,
EASTERN CONTRACTORS ASSOCIATION, INC.,
INTERNATIONAL COUNCIL OF EMPLOYER OF BRICKLAYERS AND ALLIED
CRAFTWORKS,
MECHANICAL CONTRACTORS ASSOCIATION OF AMERICA,
NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION,
SHEET METAL AND AIR CONDITIONING CONTRACTORS NATIONAL ASSOCIATION,
THE ASSOCIATION OF UNION CONSTRUCTORS.
Prepared Statement of the U.S. Chamber of Commerce
The U.S. Chamber of Commerce would like to thank Chairman Roe, Ranking
Member Andrews, and members of the Subcommittee for the opportunity to provide
a statement for the record. The topic of todays hearingchallenges facing multiemployer pension plansis of significant concern to our membership.
As sponsors of multiemployer defined benefit plans, a number of Chamber members have a substantial interest in the viability of the multiemployer plan system.
Funding for multiemployer plans comes entirely from employers, who are at financial risk when a plan faces funding problems. Therefore, funding and accounting
issues create substantial challenges not just in maintaining the plan but also for
the employers business.
While all defined benefit plans have been negatively impacted by the financial crisis, certain multiemployer plans have been particularly hard hit as the current financial crisis exacerbates long-term funding problems resulting from shifting demographic trends and financial problems within certain industries. While current law
requires insolvent employers to pay their share of liability upon withdrawal from
the plan, most bankrupt employers are unable to realistically meet that liability.
Therefore, the remaining employers become financially responsible for the retirement liabilities of the orphaned retirees. This system results in untenable contribution levels for the remaining employers, which can force them into insolvency
as well.
Moreover, in a multiemployer plan, there is joint and several financial liability between all employers in the plan. Therefore, when one employer goes bankrupt, the
remaining employers in the plan are responsible for paying the accrued benefits of
the workers of the bankrupt employer. Because of this liability, there is the fear of
an employer being the last man standing or the last remaining employer in the
multiemployer plan.
Reform of the Multiemployer Plan System is Necessary. The Chamber supports
multiemployer funding reform. Without such reform, many employersincluding
many small, family-owned businessesare in danger of bankruptcy.
In April, the Chamber released a white paper entitled Private Retirement Benefits in the 21st Century: A Path Forward. The paper makes recommendations for
all retirement plans and includes a special section for multiemployer plans to address the unique challenges faced by them. In that paper, we offered the solutions
detailed below.
Withdrawal liability is a great burden that may force employers to stay in multiemployer plans even when it is not economically feasible. The Chamber feels that
a comprehensive solution must be sought to allow for a more robust multiemployer
plan system and to maintain equity among contributing employers.
Another problem arises from the nature of multiemployer plan funding. Benefit
increases are not anticipated in funding but are often granted at contract renewal.
These increases often apply not only to active workers, but also to retirees. This
practice may put the plan into an underfunded situation because the benefit increases cause a loss for the year. This loss is generally funded over a long amortization period, such as 20 years. While this additional expense may be projected by
the plan to be affordable for active employers that are contributing a negotiated contribution rate (usually dollars per hour or a percentage of pay), a withdrawing employer may be immediately liable for its share of the underfunding.
In order to prevent bankruptcy among remaining employers in multiemployer
plans and unanticipated bankruptcy on withdrawing employers, comprehensive
60
funding reform should focus on allowing plans to be financially solvent on an ongoing basis. Examples of such provisions include, but are not limited to, additional
tools for trustees to maintain solvency, partitioning plans and promoting mergers
and acquisitions between certain plans.
Even for plans that are not at financial risk, changes could ensure that they remain financially viable. For instance, the assumptions used to determine withdrawal liability should be consistent with those used to determine contribution requirements. They should not be more conservative, forcing the withdrawing employer to subsidize active employers. In addition, benefit increases should be moderated. In the past, benefits were increased if the plan became overfunded and, as
noted above, granted even when the benefit increase would make the plan underfunded. This prevented plans from being able to fall back on extra contributions in
later years. As a result, any future underfunding would require additional contributions by current employers. Reform efforts should focus on moderating benefit increases so that they are not made simply because the plan is overfunded. One way
to do this would be to require disclosure of the amount of liability associated with
benefit increasesnot just contribution increases.
Finally, the procedural rules that allow employers to arbitrate disputes over the
amount of withdrawal liability require change, at least with respect to small employers. For example, the time frame for requesting arbitration is very short, and
a small employer, who may not have significant administrative resources, is likely
to miss it.
The suggestions above are just examples of steps that policymakers can take. The
Chamber is committed to addressing multiemployer funding issues and is willing to
discuss any viable ideas that allow participating employers to remain financially solvent.
Reform of the Multiemployer System is NOT a Union Bailout. As mentioned
above, contributions to multiemployer plans are funded entirely by employers, not
unions. Therefore, it is employers at financial risk, not unions and reforms to multiemployer plans have no financial impact on unions or their activities. Misleading
characterizations, such as this, hinders progress that is essential to implement
much-needed reform.
Without a real reform to the multiemployer system and resolutions to the underlying problems, more employers will be forced into bankruptcy and more workers
will be left without a secure retirement. We stand ready to work with Congress and
all interested parties to resolve these issues as soon as possible. Thank you for your
consideration of this statement.
[Additional submission of Mr. Andrews follows:]

June 20, 2012.
Hon. PHIL ROE,
U.S. House of Representatives, Washington, DC 20515.
DEAR REPRESENTATIVE ROE: As employers in the construction industry, the Construction Employers for Responsible Pension Reform, we would like to express our
fundamental components for multiemployer pension plan reform that will create
long-term viability for employers. The group of 8 leading construction trade associations represents more than 34,000 construction employers, the vast majority of
which are small family-owned business.
Multiemployer pension plans are common in the unionized sector of the construction industry and provide employers the opportunity to provide their employees with
a defined benefit plan that gives them portability to earn continuous benefits as
they go from job to job within the same industry. Of the 10 million participants in
multiemployer defined benefit plans, nearly 54 percent are construction industry
plans.
The majority of multiemployer plans suffered significant losses as a result of the
financial crisis. Recently enacted relief legislation and some improvements in investment returns have helped some plans, but the current rules, long-term demographics, and market conditions continue to put at risk the viability of the plans
and their contributing employers. This is particularly true for the construction industry, which has been affected by the economic recession to a far greater degree
than most industries. In short, further legislative reform is needed and, with the
Pension Protection Act nearing sunset, the process must begin now.
We believe that Congress should enact reforms that will:
Recognize the unique relationship between the employer and workers in the
construction industry
Promote a reasonable and sustainable retirement benefit through shared risk
61
Provide flexible rules to allow trustees of plans facing financial instability to
adapt to changing economic and market conditions as they occur
Mitigate the unintended consequences of the last man standing rule enacted
in the Multiemployer Pension Amendments Act
Guarantee transparency and reporting by plans to all affected parties
These principles are needed to help the tens of thousands of small employers that
contribute to the plans and to protect the retirement security of their hardworking
employees.
Sincerely,
ASSOCIATED GENERAL CONTRACTORS OF AMERICA,
ASSOCIATION OF THE WALL AND CEILING INDUSTRY,
FINISHING CONTRACTORS ASSOCIATION,
INTERNATIONAL COUNCIL OF EMPLOYER OF BRICKLAYERS AND ALLIED
CRAFTWORKS,
MECHANICAL CONTRACTORS ASSOCIATION OF AMERICA,
NATIONAL ELECTRICAL CONTRACTORS ASSOCIATION,
SHEET METAL AND AIR CONDITIONING CONTRACTORS NATIONAL ASSOCIATION,
THE ASSOCIATION OF UNION CONSTRUCTORS.
[Whereupon, at 11:43 a.m., the subcommittee was adjourned.]

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ASSESSING THE CHALLENGES FACING

MULTIEMPLOYER PENSION PLANS

ONE HUNDRED TWELFTH CONGRESS

HEARING HELD IN WASHINGTON, DC, JUNE 20, 2012

Serial No. 11263

For sale by the Superintendent of Documents, U.S. Government Printing Office

COMMITTEE ON EDUCATION AND THE WORKFORCE

George Miller, California,

Barrett Karr, Staff Director

SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS

Robert E. Andrews, New Jersey

Hearing held on June 20, 2012 ...............................................................................

ASSESSING THE CHALLENGES FACING

The subcommittee met, pursuant to call, at 10:01 a.m., in room

Chairman ROE. Thank you.

Mr. SANDER. Chairman Roe, Ranking Member Andrews, and

Chairman ROE. Thank you, Mr. Sander.

Mr. SHAPIRO. Chairman Roe, Ranking Member Andrews, and

Chairman ROE. Thank you, Mr. Shapiro.

Chairman ROE. Thank you, Mr. Ring.

Mr. HENDERSON. Chairman Roe, Ranking Member Andrews, and

[Additional submission of Mr. Andrews follows:]

[Whereupon, at 11:43 a.m., the subcommittee was adjourned.]

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