Why one counting method saved GE from a nine-figure withdrawal liability
GE dodges a $227 million pension hit at the Eighth Circuit. The win turns on how you count construction workers.
On May 26, 2026, the United States Court of Appeals for the Eighth Circuit affirmed an arbitrator's ruling that General Electric qualified for the building and construction industry exemption from withdrawal liability under the Employment Retirement Income Security Act of 1974, the federal law governing private pension plans.
The Boilermaker-Blacksmith National Pension Trust, a multiemployer plan covering primarily employees in the building and construction industry, had assessed GE on two fronts. The first, approximately $205 million, was based on a 70% decline in contribution base units across three consecutive years. The second, $22 million, was tied to GE's closure of a manufacturing facility in Chattanooga, Tennessee.
GE argued it fit within the building and construction industry exception, known as the BCI. The carve-out exempts an employer from withdrawal liability when "substantially all" of its covered workers perform building and construction work. The parties stipulated that "substantially all" means 85%.
The whole dispute came down to one question: how do you count the workers?
GE's three relevant entities - APCom Power, Alstom Power, Inc., and Atlantic Plant Maintenance - employ workers who are all boilermakers but split into two types. Field workers repair and construct boilers at customer sites and count as construction workers under the statute. Shop workers, who manufacture the boiler components, do not. Field workers generally return to the union hall after a project to await their next job with a new employer. Shop workers are more likely to work consistently for the same employer over a longer period.
The Fund wanted a monthly headcount - a snapshot taken each month showing how many field workers and shop workers were employed. GE wanted a cumulative headcount across the entire eight-year lookback period. Under the monthly method, GE did not qualify. Under the cumulative method, it did.
The arbitrator sided with GE. The Western District of Missouri agreed. The Eighth Circuit made it three for three.
Writing for the panel, Circuit Judge Kelly found the statute silent on counting methodology and ambiguous as a result. The court then leaned on congressional intent. Congress designed the BCI around specific attributes of construction work - the mobility of employers and employees and the intermittent nature of employment. The arbitrator had already found that GE "clearly and consistently engaged in the construction industry" and did not "deviate from [its] substantial construction operations" during the lookback period.
The cumulative method, the court said, better accommodates the natural fluctuations of construction employment than a monthly snapshot, which it described as "largely a creature of" the parties' collective bargaining agreement.
For HR and benefits leaders at companies that contribute to a multiemployer pension plan, the ruling sharpens a key point. Withdrawal liability assessments can run into nine figures, and the methodology used to test eligibility for a statutory exemption can swing the outcome by hundreds of millions of dollars. The court also noted that employers and funds remain free to agree contractually on which counting method applies - a planning lever worth knowing about.
The Eighth Circuit affirmed the lower court's ruling in GE's favor.
