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and, if so, the amount of the payment not to exceed the amount of
available assets. It was always intended that the annual benefit
under the COLA Fund would equal approximately 3 percent of the
pensioner’s annual retirement benefit from the Plan, multiplied
by the number of years, up to 15, that he or she had received a
pension from the Plan (the 3-percent COLA).
The COLA Fund was set up as a supplemental payment plan
under the Employee Retirement Income Security Act of 1974
(ERISA), Pub. L. 93-406, sec. 3(2)(B)(ii), 88 Stat. 829,
(currently codified at 29 U.S.C. sec. 1002(B) (ii) (1994)), as
amended by the Multi Employer Pension Act of 1980, Pub. L.
96-364, sec. 409, 94 Stat. 1307. The employers who maintained
the COLA Fund initially contributed to the fund 5 cents per every
hour worked by an employee of theirs. Each employer who
maintained the COLA Fund also maintained the fund (NPF Fund)
underlying the Plan, but not all employers who maintained the NPF
Fund also maintained the COLA Fund. Thus, not all Plan
participants participated in the COLA Fund.
In 1985, the COLA Fund’s assets were insufficient to pay the
full 3-percent COLA. Accordingly, the NPF Fund made an “ad hoc”
payment to each retiree and beneficiary under the Plan who was
eligible that year to receive a benefit from the COLA Fund. (The
minutes of the meeting authorizing the ad hoc payment in 1985,
like those for subsequent years, contained the recital: “Noting
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