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accrued. It is most likely that there were few pre-
1973 retirees still receiving benefits under that plan,
and that the issue was not even raised in that case.
There is certainly no indication from the court’s
opinion that it was raised by the parties. [Id.]
We conclude that the provisions of ERISA are meant to
preserve only those retirement benefits accrued by an employee
during his tenure as an employee. This conclusion follows from
the language of section 411(a)(7) that defines an accrued benefit
as one of an “employee” “commencing at normal retirement age”.
The same conclusion follows from the legislative history
emphasizing ERISA protection of pension rights which have been
“slowly stockpiled” and from the cases which maintain that ERISA
benefits were those which were “promised, anticipated, and
accrued.”
Respondent argues, in the alternative, that “if the NPF COLA
benefit is not considered to be an accrued benefit, it appears to
fit within the definition of a retirement-type subsidy” within
the meaning of section 411(d)(6)(B)(i).7 We disagree. The
concept of a retirement-type subsidy has an accepted meaning as
it is used in section 411(d)(6)(B)(i). It does not refer to
postretirement COLAs. It refers to amounts paid to early
retirees above their normal pension benefits.
7 Petitioner maintains that respondent’s alternate arguments
were not made in a timely fashion and that respondent thus bears
the burden of proof as to these arguments under Rule 217. In
view of our disposition of these issues, we need not decide where
the burden of proof lies.
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