Continental Can Co., Inc. v. Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund

• Decision Date: 17 October 1990
• Docket Number: No. 89-3759,89-3759
• Citation: 916 F.2d 1154
• Parties: , 12 Employee Benefits Ca 2545 CONTINENTAL CAN COMPANY, INC., Plaintiff-Appellant, v. CHICAGO TRUCK DRIVERS, HELPERS AND WAREHOUSE WORKERS UNION (INDEPENDENT) PENSION FUND, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1154

916 F.2d 1154

59 USLW 2268, 12 Employee Benefits Ca 2545

CONTINENTAL CAN COMPANY, INC., Plaintiff-Appellant, v. CHICAGO TRUCK DRIVERS, HELPERS AND WAREHOUSE WORKERS UNION (INDEPENDENT) PENSION FUND, Defendant-Appellee.

No. 89-3759.

United States Court of Appeals Seventh Circuit.

Argued Sept. 19, 1990.

Decided Oct. 17, 1990.

Charles R. McKirdy, Matthew R. McArthur, Pope, Ballard, Shepard & Fowle, Chicago, Ill., for plaintiff-appellant.

Joseph M. Burns, Stephen B. Horwitz, Jacobs, Burns, Sugarman & Orlove, Chicago, Ill., for defendant-appellee.

Before FLAUM, EASTERBROOK and KANNE, Circuit Judges.

EASTERBROOK, Circuit Judge.

Would a company whose customer paid 50.1% of the bill think it had received "substantially all" of the price? Not likely. Nonetheless, Continental Can Company insists that when a majority of a pension fund's assets come from firms engaged in the trucking business, contributing employers qualify for a treatment that is available only if "substantially all of the contributions required under the plan are made by employers primarily engaged in the long and short haul trucking industry", 29 U.S.C. Sec. 1383(d)(2).

When Continental Can employed truck drivers to transport some of its goods in the Chicago area it made pension contributions to the Chicago Truck Drivers Pension Fund. Continental closed its trucking operation in July 1985 and withdrew from the Pension Fund, which demanded that it make good its share of the Fund's underfundedness--as it must, 29 U.S.C. Secs. 1381, 1391, unless "substantially all" of the Fund's assets come from "employers primarily engaged in the long and short haul trucking industry". An arbitrator determined that 61.6% of the Fund's assets are attributable to such employers and that "substantially all" means 85%; he ordered Continental to make withdrawal payments exceeding $700,000. Continental asked the district court to set this award aside; the court enforced the award, 1989 U.S.Dist. LEXIS 13997 (N.D.Ill.), concluding (in line with several other courts) that less than 85% cannot be "substantially all". Republic Industries, Inc. v. Teamsters Joint Council, 718 F.2d 628, 643 n. 19 (4th Cir.1983) (dictum); Central States Pension Fund v. Bellmont Trucking Co., 610 F.Supp. 1505 (N.D.Ind.1985), affirmed on other grounds, 788 F.2d 428 (7th Cir.1986); Peick v. PBGC, 539 F.Supp. 1025, 1060 (N.D.Ill.1982), affirmed on other grounds, 724 F.2d 1247 (7th Cir.1983).

"Substantially all" sounds like "less than all, but not much less". Arbitrators and courts must convert this phrase to a percentage in order to make it work, which raises the question why Congress did not enact a percentage in the first place. It is as easy to write "a majority" or "two thirds" or "three quarters" or 85% or e-0.162 as it is to write "substantially all"--and any of the former choices would have prevented disputes of this kind. Perhaps, however, "substantially all" is an attractive standard because it enables Members of Congress to say different things to different interest groups. The genesis of Sec. 1383(d)(2), which was Sec. 4203(d)(2) of the Multiemployer Pension Plan Amendments Act of 1980, suggests something of this kind--although it is also consistent with the possibility that the sponsor pulled the wrong language out of his pocket.

On May 22, 1980, the House unanimously passed H.R. 3904, its bill to establish a system of withdrawal liability for under-funded pension plans. This bill lacked an exclusion for the trucking industry. Many of that industry's plans are chronically under-funded. The business also is characterized by frequent entry and exit (many firms are small). Exit does not necessarily threaten pension plans, because when one firm leaves another picks up the slack. Continental's departure had exactly this effect: although Continental closed its trucking operations, it still needs to move its goods. When the Senate's Labor and Human Resources and Finance Committees reported the Senate equivalent of H.R. 3904 to the floor on July 24, 1980, the bill had a special rule for the trucking business, in exactly the language that became Sec. 4203(d)(2). The report accompanying the bill did not discuss the meaning of "substantially all".

The House accepted most of the Senate's amendments to H.R. 3904. Representative Thompson, the floor manager, commented on this particular change:

The [Senate] bill also contains a special withdrawal liability rule for certain trucking industry plans where substantially all of the contributions are made by employers primarily engaged in the long and short haul trucking industry, the household goods moving industry or the public warehousing industry. The phrase "substantially all" appears in several provisions of the tax laws--including the industrial development bond and the private foundation rules--where the Internal Revenue Service has interpreted the phrase to mean at least 85 percent. It is our intent that, as used in this special trucking industry withdrawal liability rule, the substantially all requirement would only be satisfied where at least 85 percent of the contributions to the plan are made by employers who are primarily engaged in the specified industries.

126 Cong.Rec. 23040 (Aug. 25, 1980). The House passed the legislation unanimously the same day.

One day later the Senate also passed H.R. 3904, making a few changes in the House's latest version, amendments irrelevant to Sec. 4203(d)(2)--which the House accepted verbatim. In a text sandwiched between two "speeches" marked by a . (indicating that the remarks were inserted after the debate rather than delivered on the floor) Sen. Durenberger explained why special treatment for the trucking industry is appropriate and added:

[I]t should be observed that if the majority of the contributions to any pension plan are made by employers engaged in over the road (long) and short haul trucking ... this withdrawal liability procedure will apply to all employers who contribute to such a plan.

126 Cong.Rec. 23286-87 (Aug. 26, 1980). This remark, coming after both House and Senate had agreed to the language of Sec. 4203(d)(2), is the first time anyone implied that "substantially all" means "majority".

Because the House was unwilling to accept all of the Senate's further amendments, the chambers held a conference. Section 4203(d)(2), language common to the two versions, was not mentioned in the Conference Committee's report. On September 26, 1980, President Carter signed the bill into law. That was not, however, the end of Senator Durenberger's efforts to explain his amendment. On November 19, 1980, the Senator inserted into the Congressional Record still another bulleted statement:

Recently ... I found out that on the very day that I clarified the intent of this special withdrawal liability procedure for the trucking industry, Mr. Thompson told the House of Representatives that this special rule would only apply if at least 85 percent of the contributions to the plan were made by employers previously engaged in the specified industries. Mr. Thompson based his statement upon unrelated interpretations of the phrase "substantially all."

Since this amendment originated in the Senate without Mr. Thompson's participation, I am amazed that he would undertake an interpretation of the intent of the language.

My interpretation was based on information supplied to me as to the diversity of Teamster representation, and I am convinced that an 85-percent contribution requirement would emasculate the special withdrawal procedure.

Therefore, as a final clarification, I will reiterate that the withdrawal liability procedure will apply to any multiemployer pension plan in the trucking industry if the majority (50.1 percent) of contributions to the plan are made by employers who are primarily engaged in the long- and short-haul trucking industry, the household goods moving industry, or the public warehousing industry. .

126 Cong.Rec. 30203 (Nov. 19, 1980). Representative Thompson did not file a surrebuttal, perhaps thinking that the race is to the swift--for he had gotten his thoughts into the record before the House voted, while Senator Durenberger's two statements came after the Senate first adopted Sec. 4203(d)(2), and the Senator's second statement came nearly two months after the bill became law.

Although Senator Durenberger was "amazed" that anyone would dare to interpret language he had not written, we do not view Representative Thompson's speech as an exercise in temerity. The Senate amended H.R. 3904 and wanted the House to accept its revisions. Members of the House were entitled to form their own understanding of the language before deciding whether to enact it. Words do not have meanings given by natural law. You don't have to be Ludwig Wittgenstein or Hans-Georg Gadamer to know that successful communication depends on meanings shared by interpretive communities. See In re Erickson, 815 F.2d 1090 (7th Cir.1987). Texts are addressed to readers, in this case initially to the Representatives. Authors' private meanings--meanings subjectively held but not communicated--do not influence the readers' beliefs. The Senate, and then the House, and the Senate once again, passed Sec. 4203(d)(2) without knowing Senator Durenberger's belief that "substantially all" means 50.1%. At the time the President signed the bill, Rep. Thompson's specific statement of August 25 and Sen. Durenberger's vague one of August 26 were the only ones on paper. Representative Thompson's was in line with a frequent meaning of the phrase and must have supplied the meaning for the bulk of Members and the President, if the phrase was ever present to their minds. That is why statements after enactment do not count; the legislative history of a bill is valuable only to the extent it shows genesis and evolution, making "subsequent legislative history" an oxymoron. Pierce v. Underwood, 487 U.S. 552, 566-68, 108 S.Ct....