* Circuit Judge of the Second Circuit, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

No. 93-2211

_______________

In the Matter of:

APPLETREE MARKETS, INC., et al.,

Debtors.

SOUTH CENTRAL UNITED FOOD &

COMMERCIAL WORKERS UNIONS AND

EMPLOYERS HEALTH & WELFARE TRUST, et al.,

Appellants,

VERSUS

APPLETREE MARKETS, INC.,

Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________ (April 15, 1994)

Before VAN GRAAFEILAND * , SMITH, and WIENER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

There is only one issue in this case: When an employer withdraws from a multi-employer health insurance plan and establishes

a new health plan for its remaining employees, who must continue to

provide the health insurance mandated by COBRA to the qualifying1 Although COBRA is referred to by its own name, it is technically a set

of amendments to the Employee Retirement Income Security Act of 1974

("ERISA"), 29 U.S.C. § 1001 et seq.

2 emp loyees of the withdrawing employer? The district court held

that the multi-employer plan remains res ponsible for the COBRAqualified employees. Finding this conclusion consistent with the

plain language of the statute and coherent policy goals, we affirm.

I.

This matter involves an issue of first impression concerning

coverage under the Consolidated Omnibus Reconciliation Act of 1985

("COBRA "), 29 U.S.C. § 1161 e t seq

. ("COBRA"). 1 The issue was

submitted to the district court o n cross-motions for summary

judgment on an uncontroverted rec ord. Accordingly the facts set

forth below are undisputed.

Defendant-appellee AppleTree Markets, Inc. ("AppleTree"), a

supermarket c hain, is an employer that, pursuant to a collective

bargaining agreem ent, provided health benefits to its employees

through plaintiff, a mult i-employer health plan known as South

Central United Food & Commercial Workers Unions and Employers

Health & Welfare Trust ("UFCW"). UFCW is a multi-employer employee

welfare benefit plan for the purposes o f ERISA, 29 U.S.C.

§ 1002(1), providing health and medic al benefits to employees in

the retail food industry. UFCW is funded through contributions

from participating employers; AppleTree became a participating

employer in the plan in June 1988 and thereafter contributed to

UFCW monthly.3

In January 1992, AppleTree filed for bankruptcy under

chapter 11 of the Bankruptcy Code. In the course of its bankruptcy

proceedings, AppleTree obtained court approval to shed its

collective bargaining agreements. As a result of the termination

of the agreements, UFCW withdrew AppleTree's membership in the plan

when no agreement could be reached on AppleTree's prospective

contribution rate to the plan.

AppleTre e established its own group health plan as of

September 1, 1992, covering only employees active at that time but

not its former employees receiving coverage from UFCW under COBRA.

In other words, AppleTree withdre w its active employees from the

UFCW plan but left behind its COBRA insureds.

UFCW sued, claiming that AppleTree had an obligation under

COBRA to extend coverage under its new plan to its former employees

now receiving benefits from UFCW under COBRA. AppleTree contended

that UFCW was obligated to extend the COBRA benefits. Neither

party disputes that the former employees are entitled to COBRA

be nefits: The disagreement is whether UFCW or AppleTree should

provide it.

Relying upon the plain language of COBRA, the district court

granted summary judgment to AppleTree, holding tha t § 29 U.S.C.

§ 1161(a) defines UFCW as the sponsor of the plan that therefore is

responsible for the coverage. We affirm.

II.

We review a grant of summary judgment d e novo

. H anks v.2 "Qualifying events" include, among other things, the death,

termination, or divorce of a covered employee. See 29 U.S.C. § 1163.

4 Transcontinental Gas Pipe Line Corp. , 953 F.2d 996, 997 (5th Cir.

1992). Summary judgment is appropriate "if the pleadings,

d epositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law." F ED

. R. C IV

. P. 56(c). Here,

our task is made simpler because the facts are undisputed and we

deal almost exclusively with a qu estion of statutory

interpretation.

III.

A.

Section 1161(a) reads as follows:

The plan spon sor of each group health plan shall

provide, in accordance with this part, that each

qualified beneficiary who would lose coverage under the

plan as a result of a qualifying even is entitled, under

the plan, to elect, within the election period,

continuation coverage under the plan.

Thus, the plan sponsor of a group health plan must offer

continuation coverage to employees, their spouses, and dependents

who become qualified for such coverage while covered by the plan,

and that coverage is to be provided under the plan in which the

beneficiary par ticipated at the time the qualifying event 2

occurred. See id. ; 29 U.S.C. § 1167.

COBRA defines the "plan sponsor" as

(i) the employer in the case of an employee benefit plan5

established or maintained by a single employer,

. . . or

(iii) in the case of a plan established or maintained by

two or more employers or jointly by o ne or more

employers and one or more employ ee organizations, the

association, committee, joint board of trustees, or

other similar group of rep resentatives of the parties

who establish or maintain the plan.

29 U.S.C. § 1002(16)(B). The UFCW plan was a multi-employer,

"joint" plan. Under the plain language of the statute, the

"association, committee, joint board , or other similar group of

representa tives" of UFCW is the plan sponsor. Therefore, under

§ 1161(a), UFCW, not AppleTree, is responsible for pr oviding

continuation coverage to the COBRA employees.

Once the statutory relationship is es tablished, it can be

terminated only for one of the reasons enumerated in 29 U.S.C.

§ 1162(2). UFCW has not alleged that any of the events listed in

§ 1162(2) has occurred; therefore, there is no legal basis for UFCW

to terminate coverage of these COBRA employees.

B.

1.

UFCW contends , however, that this case is controlled by

29 U.S.C. § 1162(1), defining "continuation coverage," and not by

§ 1161(a). Section 1162(1) provides:

The coverage must consist of cove rage which, as of the

time the coverage is being provided, is identical to the

coverage prov ided under the plan to similarly situated

beneficiaries under the plan with respect to whom a

q ualifying even has not occurred. If coverage is

modified under the plan for any g roup of similarly

situated beneficiaries, such coverage shall also be

modified in the same manner for all individuals who are

qualified beneficiaries under the plan pursuant to this

part in connection with such group.6

UFCW claims that § 1162(1) requires an employer that modifies

health coverage for its employees by tra nsferring them from one

plan to another, but does not terminate all of its health plans, to

transfer coverage for all COBRA-quali fied beneficiaries as well.

According to UFCW, "similarly situated beneficiaries" are

AppleTree's activ e employees and their dependents who have not

experienced a COBRA-qualifying event . Further, when the active

employees' "coverage" was "modified," the COBRA beneficiaries

coverage must be changed identically.

UFCW's reading of the statute is strained and insupportable by

the language of § 1162(1). A natural reading of § 1162(1) reveals

an intent to forbid plan sponsors from discriminating between COBRA

and active employees within a given plan

.

There is no support for UFCW's position that a discrete

movement from one plan to another can qualify as a modification of

coverage under the original plan. The statute refers to a

modification of coverage under the plan. This implication that the

statute is intended to prevent discrimination within a single plan

cannot reasonably be read to extend to those participating in a

separate plan.

Thus, § 1162(1) does not apply to this case and would become

relevant only if UF CW modified coverage to active employees

participating in its plan. If so, § 1162(1) would require it to

modify similarly th e benefits of beneficiaries of continuation

coverage. Nothing in § 1162(1) requires an entity that has never

previously sponsored health care coverage for an individual to7

provide continuation coverage to him simply because it later gives

coverage to others.

2.

UFCW relies upon proposed Treasury Department regulations to

buttress its clai m that "modification" includes elimination of

coverage for similarly situated e mployees. The authority of

proposed regulations has not been addressed by this circuit.

UFCW relies upon district court opinions holding that proposed

regulations are entitled to "great judicial deference." S ee Swint

v. Protective Life Ins. Co.

, 779 F. Supp. 532, 554 (S.D. Ala.

1991); Johnson v. Reserve Life Ins. Co.

, 765 F. Supp. 1478, 1480-82

(C.D. Cal. 1991). AppleTree argues that a proposed regulation has

no force or effect until it becomes final. See Oakley v. City of

Longmont

, 890 F.2d 1 128, 1133 (10th Cir. 1989), c ert. denied

,

494 U.S. 1082 (1990). Thus, proposed regulations are not entitled

to judicial deference and carry no more weight than a position

ad vanced in a brief by one of the parties. S ee Natomas N. Am.,

Inc. v. Commissioner

, 90 T.C. 710, 718 n.11 (1988); F.W. Woolworth

Co. v. Commissioner

, 54 T.C. 1233, 1265-1266 (1970). We agree with

AppleTree and hold that proposed regulations are e ntitled to no

deference until final.

Our view accords with other circuits that have considered the

question. In O akley

, 890 F.2d at 1 133, the Tenth Circuit noted

that "[u]nti l the agency completes formal rule-making and

promulgates f inal regulations, the proposed rules, which the8

Internal Revenue Service has already deemed interpretive

regulations, are unpersuasive." Similarly, when presented with

proposed regulations from the Securities and Exchange Commission,

the Fourth Circuit refused to conside r their effect, noting that

the "regulations are not in effect and we do not know when, if

ever, they will become effective." T elvest, Inc. v. Bradshaw

, 618

F.2d 1029, 1036 n.10 (4th Cir. 1980).

To give effect to regulations that have merely been proposed

would upset the balance of powers among t he constitutional

branches. Deference is due the Executive when Congress delegates

"authority to the agency to elucidate a specific provision of the

statute by regulation. Such l egislative regulations are gi ven

controlling weight unless they ar e arbitrary, capricious, or

manifestly co ntrary to the statute." C hevron U.S.A. Inc. v.

Natural Resources Defense Council

, 467 U.S. 837, 843-44 (1984)

(emphasis added).

The Chevron doctrine is based upon separation of powers: As

Justice Stevens's use of the ter m "legislative regulations"

suggests, Congress is delegating to the Executive Branch authority

to act in an essentially legislative manner to fill the interstices

of the statute. "The power of an administrative agency to

admin ister a congressionally created . . . program necessarily

requires the formulation of policy and the making of rules to fill

any gap left, implicitly or explicitly, by Congress." Id. at 843

(quoting Morton v. Ruiz , 415 U.S. 199, 231 (1974)).

In effect, statutory ambiguity cedes legislative authority to9

the Executive. The Executive Branch need not promulgate rules that

best mirror legislative intent; its r ules only need not be

arbitrary or capricious. Absent executive rulemaking, it remains

the duty of courts to construe the statute in order to divine

congressional intent. In other words, if final executive

regulations interpreting an ambiguous statute are promulgated, then

the Executive is the "gap-filling" institution; if there is no

authoritative statement from the Executive, the court s "fill the

gap" by attempting to divine congressional intent.

Once it is recognized that Executive rulemaking is actually

interstitial legislat ion, it becomes inappropriate to defer to

proposed regulations, as that would upset the constit utional

balanc e of power among the branches in the same manner as would

deference to laws considered but not enacted by Congress.

C.

UFCW argues that by contributing to the plan, AppleTree

"established and maintained" the plan within the lang uage of

29 U.S.C. § 1002(16)(B). Thus, when AppleTree quit contributing to

the plan, UFCW no longer was the plan sponsor as to these

individual s. Under this reading, the plan sponsor changes as

members enter and exit the plan. The statute indicates, however,

that multi-employer plans have only one sponsor, the joint board of

trustees. Membership changes in the plan do not affect this

definitional fact.

Furthermore, once the UFCW board became the plan sponsor, it10

could not be relieved of this duty until the occurrence of an event

listed in § 1162(2). UFCW admits that it was the plan sponsor for

at least the time that AppleTree contributed to the plan; from then

on it remained the plan sponsor, as nothing in § 1162(2) permits a

plan sponsor of a multi-employer plan to terminate its COBRA

obligation to qualified individuals because a participating

employer subsequently sponsors its own plan for other covered

persons.

IV.

UFCW contends that adopting AppleTree's reading of the statute

would lead to an inequitable result and therefore should be

eschewed. UFCW argues that allowing AppleTree to relieve itself of

responsibility for the COBRA beneficiaries would create an "adverse

selection" problem allowing AppleTree to foist po or-risk COBRA

beneficiaries onto the plan, while retaining the good risks in its

new plan.

An adverse selection problem ari ses because even though the

COBRA beneficiaries continue to pay premiums, the amount they can

be charged is limited by law. Moreover, the plan cannot condition

the availability of COBRA coverage on evidence of insurability.

See 29 U.S.C. § 1162(4); 26 U.S.C. § 4980B(f)(2)C). As a result,

"Former employees choose continuation coverage only when that is

cheaper than insurance at market prices." H errmann v. Cencom Cable

Assocs.

, 978 F.2d 978, 979 (7th Cir. 1992). "[F]ormer employees

would like to treat continuation coverage as an option, to be11

exercised only if they are sure that they face medical costs

exceeding the premiums. If they turn out to be healthy, they do

not enroll and pay nothing. If medical needs loom, they exercise

their option." I d. Because COBRA-qualified beneficiaries

rationally will elect coverage only if their premiums will be less

than their benefits, the remaining members of the plan subsidize

their benefits. In turn, employers would prefer to provide

coverage only for good risks, rather than subsidizing the COBRAqualified bad risks as well.

Allowing AppleTree to abandon coverage of its COBRA-qualified

ex-employees allows it to bring only the good risks within its new

plan, while leaving the bad risks in the UFCW plan. UFCW contends

that this result is inequitable and contrary to congressional

intent. UFCW claims that it is more equitable to require AppleTree

to subsidize its poor risks, rather than having the remaining plan

members subsidize them. Thus, we should ignore the plain language

of the statute and force AppleTree to cover the COBRA

beneficiaries.

We reject the UFCW's argument for two reasons. First, to

ignore the plain language of the statute would be to substitute

improperly our own policy predilections for the express intent of

Congress. Second, coherent and sensible policies undergird the

plain language of the statute.

A.

T he allegedly inequitable result the plain language of3 Meredith v. Time Ins. Co. , 980 F.2d 352, 357 (5th Cir. 1993).

12 § 1161(a) commands results from Congress's caps on rates and its

forbidding conditioning of availability on evidence of

insurability, not from the statutory definition of "plan sponsor."

If the plan could charge the market price for insuring these highrisk individuals, there would be no adverse selection problem.

UFCW would have us accept the price caps as given and define

the term "plan sponsor" to account for the side-effects of the

caps. We could as easily accept § 1161(a)'s definition of plan

sponsor, and then declare the price caps invalid as inequitable.

There is no more ground for ignoring the statutory definition of

"plan sponsor " than for ignoring the rate caps or the ban on

evidence of insurability.

UFCW has cited no evidence that Congress was aware that its

price regulation created an adverse selection process or that

Congress intended to rectify the problem by requiring courts

deliberately to misread § 1161(a). We can avoid the unintended

consequences spawned by COBR A's price caps only be eviscerating

§ 1161(a). Correcting the ill effects of price caps by choosing

which provisions in ERISA's "complex an d highly technical

regulatory program" 3 will be given effect is the duty of Congress,

not the judiciary. Such a course invites us to substitute our

policy preferences for those reflected in the lan guage of the

statute. We reject this invitation and construe § 1161(a)

according to its plain meaning.13 B.

If we examine the policies underlying the statutory language,

we must reject UFCW's classificatio n of them as absurd or

inequitable. Multi-employer benefit plans such as UFCW are

concerned that participants such as AppleTree will exit the plan,

leaving the high risk employees behind. But the coverage agreement

between the employer and the plan is a voluntarily-bargained

document; thus, the agreement can provide for this concern. Since

all elements of the agreement between the plan and an employer are

freely negotiated at the time of joining the plan, the parties can

allocate this risk.

Indeed, establishing actuarial risk is easier as the size of

the participant pool grows. Thus, there are strong countervailing

forces providing AppleTree with incentives to remain in the

program. For smaller employees, these pressures to remain in a

multi-employer plan are even stronger. In fact, multi-employer

plans can refuse to admit prospective members who are unable to pay

their way.

The statutory solution to a loss of revenue because of a

withdrawal of participants is not to terminate coverage for some,

as UFCW attempted to do here. Rather, if revenue falls because of

defections, § 1162(1) requires the joint board to change coverage

for all participants, not to terminate coverage for some while

retaining full coverage for others.

Finally, we reject UFCW's premise that it is somehow more

"equitable" for AppleTree than for the other UFCW plan members to14

subsidize coverage for the COBRA beneficiaries. When UFCW became

the plan sponsor, it assumed responsibility for these

beneficiaries. It is not inequitable to hold it to its statutory

responsibilities.

V.

Giving the statutory language its plain meaning and construing

it in light of reasonable congressional policy goals, we conclude

that AppleTree is entitled to judgment as a matter of law.

Therefore, we AFFIRM the district court's grant of summary

judgment.JACQUES L. WIENER, Jr., Circuit Judge, specially concurring.

I fully recognize that, inasmuch as I am concurring in Judge

Smith's typically well-crafted opinion for the panel in this case,

affirming the equally well-crafted opinion of the district court,

I run the risk of gilding the proverbial lily w h en I write

separately. I do so nonetheless in the hope of adding a bit of

perspective to th e situation and thereby bolstering further this

court's position in the instant appeal. I am satisfied that when

the instant case is viewed in the framework of the purposes for

which multiemployer p lans are created, the types of workers and

types of industries which such plans are generally intended to

serve, and certain overarching features of ERISA, such as its "Type

of B enefit Coverage" provision and its "Written Instrument"

requirement, our ruling today will be seen not solely as the

product of a fair reading of the plain language of the statute "in

a vacuum," but more broadly as a fair and sensible determination

that is wholly consistent with the goals and purposes of ERISA in

general and multiemployer plans in particular.

I

PLAIN LANGUAGE REVISITED

First, I would re-emphasize the point that ERISA's "Type of

Benefit Coverage" provision does not require AppleTree as an

employer participating in a multiemployer welfare benefit plan, to

provide COBRA benefits to those of AppleTree's former employees and

their dependents who had been receiving, or became eligible to

receive, COBRA coverage under the UFCW prior to September 1, 19924 29 U.S.C. § 1162(1).

5 Id. (emphasis added).

16 ( "SCP Qualified Beneficiaries"). Section 602(1) of ERISA 4

provides:

(1) The coverage must consist of coverage which,

as of the time the coverage is being provided,

is identical to the coverage provided under

the plan to similarly situated beneficiaries

u nder the plan with respect to whom a qualifying event has not occurred. If

coverage is mo dified u nder the plan for any

group of simi larly situated beneficiaries,

such coverage shall also be modified in the

same manner for all individuals who are

q ualified beneficiaries under the pla n pursuant to this part in connection with such

group. 5

In applying § 602(1) to the instant case, UFCW's joint board (the

"Board") S Q the designated plan sponsor SQ interprets the term

"similarly situated be neficiaries under the plan for whom a

qualifying event has not occurred" to mean AppleTree's employees.

But the Board's interpretation ignores the unambiguous wording of

the statute which specifies that similarly situated beneficiaries

are those beneficiaries who are participating in the same plan as

the COBRA qualified beneficiaries.

Section 602(1) describes the "type of benefit coverage" to be

provided to C OBRA qualified beneficiaries under a plan.

S pecifically, § 602(1) requires the plan sponsor to pro vide

identical health care coverage to the COBRA qualified beneficiaries

of th e plan as is provided to other persons who are "similarly

situated" to them and who are participating in the same plan . To

achieve this objective, § 602(1) also requires that if the plan17

sponsor modifies coverage for such "similarly situated" persons, it

must also modify the coverage for COBRA qualified beneficiaries in

the same manner. Correctly applying the above quoted language of

the statute, no support can be discerned for the Board's

interpretation that individuals become "similarly situated" to

COBRA qualified b eneficiaries of one plan when the individuals

participate in another plan. Instead, the language of § 602(1)

demonstrates that the intent of Congress was to proh ibit plan

sponsors from discriminating between COBRA qualified beneficiaries

and active employees who are participating in the same plan.

Further, the plain language of the statu te does not support

the Board's contention that Appl eTree S Q a formerly participating

employer SQ somehow caused a modification of the coverage within the

meaning of § 602(1) when it sponsored its own group health plan for

its employees after the SCP Qualified Beneficiaries became eligible

for and began to receive COBRA co verage under the UFCW. The

statute refers to a modification of coverage under the same plan

.

The language of § 602(1) reflects that the intent of Congress was

to prohibit a plan sponsor from modifying coverage to provide

coverage to C OBRA qualified beneficiaries different from the

coverage provided to "similarly situated" active employees of the

same plan . Nothing in § 602(1) requires an entity that has never

sponsored health care coverage for an individual to provide COBRA

benefits for that individual simply because the entity happened to

have been his employer when he experienced a COBRA qualifying event

under a multiemployer plan and the entity subsequently establishes18

a group health plan for its own employees. The majority opinion

makes this abundantly clear.

To reach a different conclusion would not only ignore the

plain language of the statute but would also fail to recognize the

purpose and structure of multiemployer plans.

The primary purpose of multiemployer plans is to provide

benefits to workers of a particular industry or area. Through this

structure, the workers are able to continue their cov erage under

the plan despite moving from one employer to another SQ a phenomenon

typical of certain industries, including reta il food sales and

service SQ

within the group of employers participating in the plan.

To terminate an individual's COBRA coverage under a multiemployer

plan just because he happened to work for one particular employer

among the m any at the time he became eligible to receive COBRA

b enefits under the plan would fly in the face of a pr incipal

purpose of multiemployer plans. More about this later.

Applying the foregoing principles, § 602(1) would be applicable in

t he instant case if SQ but only if SQ the Board modified the c overage

of the active employees and their dependents who are participating

in the UFCW and who are similarl y situated beneficiaries with

respect to the SCP Qual ified Beneficiaries. Here, no such

modification of coverage occurred . Accordingly, § 602(1) is

inapplicable and does not relieve the Board of its obligation to

provide COBRA coverage to the SCP Qualified Beneficiaries; neither

can § 602(1) be stretched to shift such obligation to AppleTree.

II19 DEFINITION OF PLAN SPONSOR

ERISA's "definition of plan sponsor" actually prohibits

AppleTree from replacing the Board as plan sponsor of the SCP

Qualified Beneficiaries, absent some express written provision to

that effe ct in the UFCW or its plan documents. Nevertheless, as

amicus, the National Coordinating Committee for Multiemployer Plans

("NCCMP") ins ists, on behalf of the Board, that AppleTree was

required to relieve the Board of its COBRA obligations on August

31, 1992. I disagree.

Recognizing as it must that COBRA requires the "plan sponsor"

to provide COBRA coverage, NCCMP proceeds to argue that AppleTree

"established and maintain e d" the UFCW by making contributions

thereto; and that as a result when AppleTree ceased contributing to

the UFCW and established a group health plan for its employees on

September 1, 1992, the Board ceased to be the pla n sponsor as to

AppleTree's former and active employees, and the duty of providing

COBRA benefits reverted to AppleTree as plan sponsor of those

individuals on that date. On the basis of that bit of legal

legerdemain, NCCMP conclu des that AppleTree is the party

responsible for providing the SCP Qualified Beneficia ries with

COBRA coverage as of September 1, 1992.

This contention, however, finds no support in the statute, the

plan documents, or reality. ERISA provides the specific statutory

definition of "plan sponsor": Multiemployer plans have only one

plan sponsor, the joint board of trustees. Changes in the identity

of employers who from time to time participate in the plan have no20

effect on the party designated by ERISA to be the "plan sponsor."

The joint board of trustees remains the "plan sponsor" regardless

of which employers are permitted to withdraw from (or join) the

plan.

III

THE MULTIEMPLOYER PENSION PLAN AMENDMENT ACT - A COMPARISON

Indirect but strong support for the conclusion that withdrawal

of an employer from a multiemployer welfare benefit plan does not

change the party designated as plan sponsor is found in the

adoption by Congress of the Multiemployer Pension Plan Amendment

A ct of 1980 ("MPPA"). Congress enacted the MPPA in response to

concerns about the extreme finan cial hardships of multiemployer

pension plans (as distinguished from multiemployer welfare benefit

plans) and the resulting potential liability of the Pension Benefit

Guaranty Corporation to pay for certain unfunded pension benefits.

These concerns arose because of t he tension between the plan

sponsors on the one hand and the contributing employers of

multiemployer pension plans o n the other S Q tension resulting from

the disparate identities and interests of those parties.

In response to those concerns, Congress elected n ot to

redesignate the plan sponsor of a multiemployer pension plan upon

the withdrawal therefrom of an employer. Instead, the legislative

solution was to impose withdrawal liability on an employer who

withdraws. Through the enactment of MPPA, Congress amended ERISA

to require an employer who withdraws from a multiemployer pension

plan to continue to pay additional contributions to the plan to21

fund adequately certain unfunded pension benefits.

The obvious significance of the history of the MPPA to the

instant case is that no comparable amendment act was ever adopted

for welfare benefit plans. And the reason is equally obvious:

The pertinent rules that apply to pension plans simply do not apply

to welfare benefit plans. Given the substantial differences

between pension plans and welfare benefit plans, the latter just do

not experience the funding problems that are endemic to the former.

For example, pension plans are subject to ERISA's vesting

requirements and funding obligations, whereas welfare benefit plans

are not.

IV

THE QUALIFYING EVENT

COBRA imposes on the sponsor of the plan that covered the

individual when he e xperienced a qualifying event the duty of

providing COBRA coverage. This statutory obligation arises at the

moment the individual experiences a qualifying event that triggers

a loss of coverage under the plan, and ends only upon the

occurrence of one of the terminating events specified in § 602(2)

of ERISA. Nothing contained therein permits the sponsor of a

multiemployer plan to terminate or transfer its COBRA obligation to

a withd rawing employer simply because, at a time after the

individual experiences a qualifying event, the employer withdraws

from the plan and sponsors its own plan for its own employees. On

the contrary, the obligation to provide COBR A coverage to the

individual remains with the plan sponsor of the multiemployer plan.6 See Langbein & Wolk, Pension and Employee Benefits Law

,

48-52; 359-2d, BNA Tax Management , "Multiemployer Plans SQ Special

Rules," A-1.

22 T o recap: The UFCW is a multiemployer plan, and the plain

language of E RISA expressly designates the Board as the plan

sponsor of the UFCW. The SCP Qualified Beneficiaries experienced

their COBRA qualifying events prior to September 1, 1992, at a time

when they were covered under the UFCW. Thus COBRA expressly

imposes on the Board the duty to provide COBRA benefits to the SCP

Qualified Beneficiaries until a terminating event occurs. The fact

that AppleTree ceased making contributions to the UFC W on August

31, 1992, and thereafter sponsored a group health plan for its

employees could not and does not relieve the Board of its

obligatio ns to provide COBRA benefits to the SCP Qualified

Beneficiaries. V

ERISA's "WRITTEN INSTRUMENT" REQUIREMENT

Another aspect of ERISA that helps to frame the proper

perspective within which to consider the narrow issue of this case

is the statute's "wri tten instrument" requirement. It prohibits

the Board from shifting its COBRA obligation to AppleTree absent

the required documentation SQ documentation which here is nonexistent. To appreciate fully the true significance of this

requirement in the instant appeal, a more extensive explanation of

the above alluded to purpose and structure of multiemployer plans

should prove beneficial.

Multiemployer plans typically are established and maintained

to provide employee benefits to workers in particular industries. 67 Langbein & Wolk, Pension and Employee Benefits Law at 49.

8 See Central States, Southeast and Southwest Areas Pension

Fund v. Central Transport , 472 U.S. 559 (1985); Schneider Moving

& Storage Co. v. Robbins , 466 U.S. 364 (1984); Central States,

Southeast and Southwest Areas Pension Fund v. Gerber Truck , 870

F.2d 1148, 1154 (7th Cir. 1989) (en banc).

23 Multiemployer plans tend to be prevalent in those industries that

have in common lower level workers who are employment-peripatetic

by nature, such as the retail food, garment, trucking, mining,

construction, and entertainment industries. Multiemployer plans

are common in these and other similar industries, which are

typified by many small companies that are "too small to justify an

individual plan." 7 Multiemployer plans comprise the pooled assets

of numerous employers (each of which usually makes co ntributions

pursuant to collective bargaining agreements) and the income

generated by those assets. 8 Thus, multiemployer plans generally

have participant populations that are larger than those of singleemployer plans, and generally experience better risk-spreading

opportunities. To the extent multiemployer plans are larger, they

also enjoy economies of scale unavailable to all but the largest

single-employer plans. As a result, multiemployer plans often

provide more favorable coverage to the participants and their

beneficiaries than single employer plans are able to provide.

Of particular importance to the instant case is the widely

recognized fact that multiemploye r plans are common in those

industries in which, due to seasonal or irregular employment and

high labor mobility, few workers would qualify for coverage under9 Langbein & Wolk, Pension Employee Benefit Law at 49.

10 Id.

11 Id.

12 Id. at 52.

13 Id.

24 an individual employer's plan if one were established. 9 For

example, construction workers are frequently hired by a contractor

for a single project that takes only a matter of weeks or months to

complete. 10 Once the project is finished, those workers may be

unemployed until another contractor needs their particular skills

for a different project. 11 Thus, multiemployer plans, in contrast

to single-employer plans, promote portability of benefits by

workers wh o SQ

g enerally not on their own volition SQ move from one

employer to another. 12

A worker is eligible to participate in a single-employer plan

because of his employment relationship with one particular

emplo yer . In contrast, a worker is eligible to participate in a

multiemployer plan because of his employm ent relationship with a

particular industry and the several employers which participate in

the plan. Consequently, multiemployer plans S Q unlike singleemployer plans SQ

are able to achieve portability of benefits through

a plan structure that permits a worker who moves from one employer

to another within the plan's group of participating employers to

enjoy continuou s coverage under the plan. 1 3 The United States

Department of Labor ("DOL") also recognizes that mult iemployer

plans are primarily established and maintained for the purpose of14 See 29 C.F.R. § 2510.3-37(c). The DOL requires a

substantial business purpose before a multiemployer plan may be

established. Such business purpose includes the interest of a

labor organization in securing employee benefit plans for its

members. The DOL examines four factors to determine the

existence of a substantial business purpose, any one of which may

be sufficient: (1) maintenance of a plan by a substantial number

of unaffiliated contributing employers covering a substantial

portion of a trade, craft or industry in terms of employees or

locality; (2) closeness of relationship of benefits to years of

service within the trade, craft or industry rather than with a

given employer; (3) extent of collective bargaining in matters

other than employee benefit plans between the employer

organization and the employers maintaining the plan; and (4) the

extent to which the administrative burden and expense of

providing benefits through single-employer plans would be greater

than through multiemployer plans.

15 29 U.S.C. § 1102(a)(1).

16 Id.

17 Cefalu v. B. F. Goodrich Co. , 871 F.2d 1290, 1296 (5th

Cir. 1989).

25 permitting portability of benefits for the workers of a particular

industry. 14

Within that framework, the "written instrument" requirement is

all the more meaningful. Section 402(a)(1) of ERISA expressly

requires that "[e]very benefit plan shall be established and

maintained pursuant to a written instrument." 15 The written

instrument must "provide for one or more named fiduciaries who

jointly or severally shall have the authority to control and manage

the operation and adminis tration of the plan." 1 6 One purpose of

ERISA's "written instrument" requirement is to protect the

interests of employees and their beneficiaries in employee benefit

plans by giving them a clear understanding of their rights and

obligations under the plan. 17 Recognizing that ERISA requires that18 Id. at 1297.

19 See §§ 1.33 and 4.5 of the UFCW; §§ 1.8, 7.1, 7.2, 7.3,

8.1 and 9.2 of UFCW's Trust Agreement.

20 See § 2.8 of the UFCW.

26 emp loyee benefit plans and any changes made to such plans be in

writing, we have held that we lack the power to create a federal

common law remedy in this area because E RISA specifically and

clearly address es the issue. 1 8 Thus, participants and

beneficiaries of employee benefit plans must be able to rely on the

plans' written instruments for determination of benef its and

determination of the party responsible for providing those

benefits. Here, the UFCW designates the Board as that responsible

party, and does so expressly and in writing. 19

Further, the UFCW expressly grants its participa nts and

beneficiaries the right to elect COBRA coverage under the UFCW when

a qualifying event triggering loss of coverage thereu nder is

experienced. 20 There is nothing written in the UFCW, however, that

permits the Board to terminate an individual's COBRA coverage under

the plan when and if that individual's former emp loyer withdraws

from the plan and subsequently sponsors a group health plan for its

own employees. Under the statute, the pertinent plan provisions,

and the applicable legal authorities, it is the Board SQ not a

formerly participating employer SQ which is obligated by law and

under the terms of the UFCW to provid e COBRA benefits to the SCP

Qualified Beneficiaries. For us to hold otherwise would violate

ERISA's "written instrument" requirement and improperly deny the27

SCP Qualified Beneficiaries their right to uninterrupted COBRA

coverage under the UFCW.

Additionally, for us to rule in this case in the manner urged

by the Board could broadly but adversely affect the current

structure and operation of multiemployer plans, including the

rights and obligations of the participants and partic ipating

employers alike. As noted, over longer periods of time, workers in

a given industry tend to work for numerous employers within that

industry. It was principally in recognition of this revolving door

facet of such employment that employers and union representatives

devised the multiemployer plan. Such a plan provides the means to

ensure maintenance of a desired level of benefits for workers who

toil in a particular industry and who change employers with some

frequency. Through participation in a multiemployer plan, both the

workers and the employers understand that the plan will continue to

provide health coverage to such workers even though they may work

for two or more employers which participate in the plan at

different times. Clearly, if we were now to permit plan sponsors

t o shift their COBRA obligations to employers such as AppleTree,

plan sponsors of multiemployer plans wo uld be able to deny

participa nts their "portability of benefits" right without being

required to amend the plan's written instrument as required by

ERISA.

In turn, the denial of the portability rig ht could severely

affect other benefit righ ts of the participants in multiemployer

plans. For example, if AppleTree were required to provide the SCP21 See §§ 2.3 and 2.5 of the UFCW.

28 Qualified Beneficiaries with COBRA coverage under the new, singleemployer AppleTree plan, the SCP Qualified Benefici aries would

become participants in the AppleTree plan and would be terminated

as participants in the UFCW as of Aug ust 31, 1992. This

termination of coverage u nder the UFCW might well produce harsh

consequences to the SCP Qualified Beneficiaries. First, to the

extent that the level of coverage provided under the AppleTree plan

were less favorable than the coverage provided under the UFCW, the

SCP Qualified Beneficiaries would suffer a diminution in coverage

(for, as noted earlier, multiemployer plans generally provide more

favorable coverage than single-em ployer plans given economies of

scale).

Seco nd, such a termination of participation might adversely

affect the level of the SCP Qualified Beneficiaries' coverage under

the UFCW when and if they were subsequently to become employed by

other participating employers during their COBRA coverage period.

For example, if an SCP Qualified Beneficiary were to be employed

subsequently by a participating employer of the UFCW, that worker

would again be required to meet the eligibility requirements of the

UFCW prior to receiving the level of coverage to which he had been

entitled immediately before his participation in the UFCW ended on

Augus t 31, 1992. 2 1 Also, to the extent that the "pre-existing

condition" exclusion of certain ailments or diseases might apply to

the SCP Qualified Beneficiary, he would now be denied coverage for

such conditions, even though he would otherwise have continued to22 See § 4.4 of the UFCW.

29

be entitled to coverage for them had his COBRA coverage not been

terminated. 22

Clearly, the public interest SQ and the intent of Congr ess S Q in

encouraging the formation of empl oyee benefit plans could be

adversely affected if we were to hold that AppleTree, rather than

the Board, is obligated to provide COBRA benefits to the SCP

Qualified Beneficiaries. And just as participants and

beneficiaries must be able to rely on the plan's written

instrument, so too must employers be able to re ly on the plan's

written instrument to determine their obligations. Employers are

frequently discouraged from parti cipating in or forming employee

benefit plans if they perceive potential exposure to unlimi ted

liability for participants' benefits. This is another reason for

which ERISA r equires the instrument to define in writing the

employers' obligations under the plan.

Notably, neither the UFCW nor any other plan document either

expressly or impliedly permits the Board to shift its COBRA

obligations to AppleTree simply because the SCP Quali fied

Beneficiaries h appened to have been employed by AppleTree when

those beneficiaries experienced their COBRA qualifying event under

the UFCW SQ

and AppleTree subsequently sponsored a group health plan

for its own employees. That is n ot to say that the UFCW or the

other plan documents could not have so provided. I simply note the

fact that the UFCW does not in writing impose any liability on the

withdrawing employer to subsidize the plan's cost of prov iding30

COBRA benefits; but neither does it permit recovery b y the

withd rawing employer of any reserves attributable to the

contributions such employer may have made to the UFCW. Again, I do

not mean to suggest that the plan documents could not so provide;

I simply observe that no such writing exists in connection with the

UFCW. The admittedly belabored point I make is that in the absence

of contrary written provisions ERISA does not allow the Board to

evade its COBRA obligation simply because the financial soundness

of the UFCW may be adversely affected if the Board is required to

provide COBRA coverage to the SCP Qualified Beneficiaries.

VI

AD HOMINEM

In closing, I am constrained to comment on another aspect of

the position urged by the Board in this case. Given the strong

motivation of the entities and organizations that bar gain so

vigorously with the employers for the adoption of mult iemployer

plans SQ

a central feature of which is the designation of the Board

rather than the employer as the plan sponsor SQ I find illogical, if

not disingenuous, the strident urgings of the Board to this court

that we mystically pass the mantle of plan sponsor from the Board

to the em ployer, thereby imposing liability on AppleTree for the

costs of providing COBRA benefits to the SCP Qualified

Beneficiaries. The constant emphasis of such bargaining is, as

noted above, the ability to ensure to the workers the portability

of their plan benefits and the avoidance of breaks in coverage and

such attendant evils as requalification, delay periods for31

eligibility, and exposu re to denial of coverage of "new" preexisting conditions that were not pre-existing SQ and thus were not

excluded from coverage SQ for purposes of former participation in the

same plan. It ill behooves those whose minions benefit so greatly

from th e Board's position as plan sponsor to gainsay such

sponsorship for the expediency of s hifting COBRA costs to the

departing or withdrawing employer.

VII

CONCLUSION

To repeat, I wholeheartedly concur in Judge Smith's opinion

that, based on the plain language of ERISA and UFCW's written

instruments, the Board is the plan sponsor and thus is obligated to

provid e COBRA coverage to SCP Qualified Beneficiaries under the

UFCW until a statutory event should occur to trigger termination of

such coverage. The fact that AppleTree withdrew from the UFCW and

thereafter sponsored a single-employer group health plan for its

employees after the SCP Qualified Beneficiaries became entitled to

receive COBRA coverage under the UFCW is clearly not an event that

terminates the Board's obligations to provide COBRA coverage to the

SCP Qualified Beneficiaries. I find that the broad perspective in

which thi s decision can and should be viewed provides additional

undergirding for the majority opinion, consistent with the

policies, reasons and rationale of ERISA and COBRA and the raison

d'etre of multiemployer plans.