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C Pension Benefit Guaranty Corporation +15?0&37 

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U PBGC 1200 K Street, N.W.. Washinglon. D.C. 20005-4026 ",-urn 

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NOV 2 6 2003 

Re: Appeal 1, Nashville Textile 

Corp. Hourly Employees' Pension Plan (Plan or NTHP) 

Dear Mr. Byrd: 

The Appeals Board has reviewed the appeal you filed for your client, 

I of PBGC's July 22, 2003 benefit determination. For the 

reasons stated below, we are denying the appeal. 

Benefit Determination and ADD^^ 

PBGC determined that your client was not eligible to participate in the 

NTHP and, therefore, is '. . . not entitled to a PBGC benefit because [her] 

classification was covered..by a collective bargaining agreement under the 

Union of Needletrades Industrial and Textile Employees" (UNITE). 

Your August 21, 2003 appeal letter stated that PBGC's determination 

letter did not contain "any statutory authority or a factual basis for denia!." 

You requested "the legal and factual information [PBGC] relied upon in 

rendering its decision." You asserted that your client '. . . has information 

that other parties who were employed at the same time as [herselfl and 

members of the same union are . . . receiving benefits under. . ." NTHP. You 

asked '. . . why similarly situated individuals are treated different." 

Law and Reaulations 

PBGC Res contain documents showing that NTHP terminated April 30, 

1999 without sufficient assets to satisfy all benefits PBGC guarantees under 

Title IV of the Employee Retirement Income Security Act of 1974, as amended 

(ERISA). Therefore, the provisions of the NTHP, ERISA and PBGC regulations 

determine NTHP participants' benefit entitlements. ERISA 5 4022(a) provides 

that, subject to certain limits, PBGC shall guarantee the payment of all 

nonforfeitable benefits under a covered plan that terminates. ERISA defines 

a "nonforfeitable benefit" as ". . . a benefit for which a participant has 

satisfied the conditions for entitlement under the plan or the requirements 

of [ERISA]." ERISA 5 4001(a)(8); see also 29 Code of Federal Regulations 
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u (C.F.R.) 5 4001.2 (definition of "nonforfeitable benefit"). PBGC rules provide 

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01 that a guaranteed benefit, among other conditions, must be nonforfeitable 

3 on the plan's termination date. 29 C.F.R. !-j 4022.3. 

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Facts of the Case 

The Appeals Board has been advised that PBGC's auditor for NTHP 

accepted as accurate a list of participants included in the 1998 actuarial 

valuation of NTHP prepared by the Plan's former actuarial consultant, Hallman 

& Lorber Associates, Inc. When your client contacted PBGC about a benefit 

from NTHP, PBGC advised her that because she was not included on the list 

as a Plan member she must complete a PBGC "Plan Participation Information" 

(PPI) form and an "Authorization [for PBGC] to Obtain Earnings Data from the 

Social Security Administration" (SSA Report). On the PPI your client reported 

she was born bnd worked as a "machine operator" for 

Denise Lingerie-House of Ronnie from September 28, 1968 until April of 1998 

when the "factory closed." She checked boxes on the PPI indicating she had 

always been an hourly paid employee and was an NTHP ". . . participant 

covered by a collective bargaining agreement (union contract) with the 

employer. . .." She did not write on the PPI the dates of her employment in 

the bargaining unit position or the name of the local union. 

The SSA Report confirmed that your client received earnings from 

Denise Lingerie Corp. for the period in question. It also showed that she 

received payments from UNITE (formerly International Ladies' Garment 

Workers Union, ILGWU) for a number of the years while working for Denise. 

NTHP Provisions 

Documents in PBGC files reveal that NTHP was first effective April 1, 

1968 and was restated or amended from time to time until April 1, 1989, 

which is the effective date of the "Adoption Agreement to the Hallman & 

Lorber Associates, Inc. Defined Benefit Regional Prototype Pension Plan and 

Trust Agreement" (H&L Prototype). Prior to the adoption of the H&L 

Prototype, Article I1 of NTHP provided that after meeting certain age and 

service requirements an "Employee" was eligible to participate in the Plan. 

The Plan includes the following definitions: 

Section 1.08 defines "Employee" as '. . . any person who appears 

on the Employer's books as a hourly Employee at all times when 

his eligibility to participate or to continue to participate shall be 

ascertained, . . . excluding any person who is a member of a 

collective bargaining unit on whose behalf the Em~lovee 

representativeand the Employer have engaged in good faith 

bargaining for retirement benefits." (Emphasis added.) 
Section 1.09 defined "Employer" as '. . . Nashville Textile 

Corporation, Denise Textile Corporation and Bristol Textile 

Corporation . . .." 

The Adoption Agreement and the H&L Prototype continued the exclusion 

of hourly employees in the collective bargaining unit whose representative 

negotiated in good faith regarding pensions. The Appeals Board obtained a 

copy of the 1995-1998 Collective Bargaining Agreement between Denise 

Lingerie and Local #426, Southern and Western District Council of the Upper 

South Dept., ILGWU (CBA). In Article XVI of the CBA, Section 1 (Health, 

Welfare, Retirement and Health Services Fund) provides that the Employer 

shall pay a percentage of ". . . its total gross weekly payroll . . . of all 

employees covered under the Agreement (whether Union or non-Union 

workers, and whether regular or trial period workers) employed by the 

Em~lovers . . . .." Paraara~h 2 of Section 1 SDecifies the Dercentaae the , 

Employer is to pay "towards the Upper South ~epartment ~etiremenc~und, 

ILGWU. a trust fund established bv a collective baraainina aareement - - for the 

purpose of providing pension or-annuities for employees covered by this 

Agreement on retirement." (Emphasis added.) 

Decision 

Having applied the pr.ovisions of the law and NTHP to the facts of this 

case, the Appeals Board found that your client was not an NTHP participant 

while she worked.for Denise in a position covered by the CBA. Further, there 

is no evidence she ever held a non-bargained position at Denise. She, 

therefore, is not entitled to a pension payment From PBGC. This is the 

agency's final action on this case and your client may, if she wishes, seek 

court review of this decision. 

Other Matters 

It is noted that your client may have a pension from the multi-employer 

pension plan to which the employer contributed. For further information 

about such a benefit, please contact: 

ILGWU National Retirement Fund 

Attention: Loraine Balcom 

730 Broadway, gth Floor 

New York, NY 10003 

You stated that your client knows of individuals employed at the same 

time and in the same union as herself who were receiving/received benefits 

under both NTHP and the ILGWU retirement plan, and you questioned PBGC's 

apparent disparate treatment of your client and these people. During a recent 

telephone conversation with me your client named several of these 
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U individuals. Our records indicate that none have filed appeals. The Appeals 

i Board, therefore, does not have the authority to review their cases. Further, 

I the Privacy Act prevents me from disclosing any specific information about 

them to you. 

u In general, however, please know that as reported on an Attachment 

to the Form 5500 filing for the period ending March 31, 1996, Denise had 218 

hourly employees -- 198 identified as ineligible for NTHP and 20 as NTHP 

participants. The latter possibly may have been hourly paid supervisors or 

office staff during some or all of their employment with Denise and 

apparently not eligible for pensions from the ILGWU retirement fund for such 

periods of employment. PBGC cannot speak about the payments ILGWU is 

making. During our review, we contacted PBGC's auditor for NTHP for 

information. As he has access to appeals documents he is aware of your 

client's concern and has indicated that his office will review PBGC payments 

to assure compliance with the provisions of the NTHP and PBGC rules. 

Please know that PBGC will always, even after an appeal is closed, 

review any new, specific documentaty evidence which demonstrates that the 

appellant is entitled to a PBGC payment. If your client has evidence showing 

that a period of her employment with Denise was in a position not covered 

by the CBA, which may qualify her for an NTHP benefit, or if she needs 

information from PBGC's auditor on this Plan, she should write to: 

Pension Benefit Guaranty Corporation 

Insurance Operations Department 

Attention: John Graul, Auditor 

P.O. Box 151750 

Alexandria, VA 22315-1750 

She may also call PBGC's Customer Contact Center at 1-800-400-7242 and 

ask to speak to Mr. Graul. 

Sincerely, 

Harriet D. Verburg 

Chair, Appeals Board