Public employee union pension plan under ERISA

P/OPINION-76-101

                                                                   3(4)
                                                                   3(5)
                                                                   3(9) ✓
                                                                   3(12)
                    November 1, 1976

Dear          :

This is in further response to your letters of August 14,
1975, June 29, 1976, and July 1, 1976. In your letters you
have requested a ruling as to whether a pension plan (the
Plan) maintained by the ( Name ) is subject to the Employee
Retirement Income Security Act of 1974 (the Act). Your
letters state that ( Name ) is a labor organization repre-
senting employees of the State of ( Name ) and of political
subdivisions of that state, but is not itself a governmental
agency or instrumentality. In your July 1, 1976, letter you
indicate that you are unable to find anything in the Act which
specifically covers pension plans of organizations such as
( Name ).

This response deals solely with the coverage of the Plan
under Title I of the Act. Questions regarding the applica-
bility of provisions contained in Title II of the Act, which,
in general, sets forth certain amendments to the tax quali-
fication provisions of the Internal Revenue Code of 1954,
should be addressed to the Internal Revenue Service, while
questions regarding coverage of Title IV of the Act, relating
to plan termination insurance, should be addressed to the
Pension Benefit Guaranty Corporation.

The coverage of Title I of the Act is set forth in Section 4,
which provides, in relevant part, that Title I applies to any
employee benefit plan if it is established and maintained by
an employer engaged in commerce or in any activity or industry
affecting commerce. The term "employer" is defined in Section
3(5) of the Act to include "any person acting directly as an
employer”, while the term “person'' is defined in Section 3(9),
to include unincorporated organizations, associations and
employee organizations. In Section 3(4), the term "employee
organization" is defined, in relevant part, as any labor union
or any organization of any kind, or any employee representation
association, in which employees participate and which exists for
the purpose of dealing with employers concerning an employee
benefit plan, or other matters incidental to employment
relationships.
2

P/O-76-101

Thus, a voluntary employees' association such as ( Name ),
which serves as a labor organization representing employees,
is a person within the meaning of Section 3(9) and, with
respect to its own employees, constitutes an employer within
the meaning of Section 3(5) of the Act. Under Section 4(a)
of the Act, therefore, an employee benefit plan established
by such an organization which is engaged in commerce or in
any industry or activity affecting commerce is subject to
Title I, unless specifically excluded from coverage under
Section 4(b). Given the broad definition of "industry or
activity affecting commerce" in section 3(12) of the Act
and the Supreme Court's interpretation of this concept over
the last three decades, it is unlikely that a pension plan
maintained by ( Name ) would fail to meet the coverage
requirements of Section 4(a). Further, your letters do not
indicate ( Name ) would be subject to any of the exclusions
from coverage set forth in section 4(b). Accordingly, we
have concluded that the Plan is subject to Title I of the
Act.

Sincerely,