The Board of Trustees of the Sheet Metal Workers' National Pension Fund - Page 21




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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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