Pension Benefit Guaranty Corporation 

77-130 

February 10, 1977 

REFERENCE: 

 [*1] 3(16) Definitions. Administrator

4001(a)(1) Definitions. Administrator

4041(a) Termination by Plan Administrator. Filing of Notice of Intent to Terminate 

OPINION: 

 This will acknowledge receipt of your letter of * * * and the document submitted pursuant to § 4041 of the

Employee Retirement Income Security Act of 1974 (the "Act"). The Pension Benefit Guaranty Corporation (the

"PBGC") has been advised by the union trustees of * * * (the "Plan") that, in their view, the aforementioned document

does not constitute a valid notice of intent to terminate the Plan. 

As we understand the situation, a resolution authorizing the termination of the Plan was adopted at a meeting of the

Board of Trustees on * * * At the time the resolution was adopted, only the four trustees representing management were

in attendance at the meeting. On * * *, a notice of intent to terminate the Plan executed by the four management trustees

was filed with the PBGC. 

For such a document to constitute a valid notice of intent to terminate a defined benefit pension plan, it must be

submitted by the "plan administrator" of the plan, as defined in § § 3(16) and 4001(a)(1) of the Act. The present Plan

appears to be a plan [*2] jointly maintained by the * * * Consequently, the Board of Trustees established under the

terms of the Plan is the plan administrator within the meaning of the above-cited sections of the Act. 

It is not clear to us, however, that the decision of the four management trustees to file a notice of intent to terminate

the Plan constituted action by the Plan's Board of Trustees. The copy of the document submitted with the notice as item

10, the plan document, does not make specific provision for the establishment of a Board of Trustees or for any quorum

necessary for the Board to act. The copy of the last collective bargaining agreement, submitted as item 14, does state

in paragraph 43(b) that the the Plan shall be ". . . administered jointly and equally by the COMPANY and representatives

of the UNION." In view of this requirement, which we believe is also a requirement of the Plan, we are tentatively of

the view that the action of the management trustees taken in the absence of the union trustees does not constitute action

by the Plan administrator. It therefore appears to us that the notice submitted does not constitute a valid notice of intent

to terminate pursuant to § 4041 of the [*3] Act. 

Before reaching a final decision on this question, however, we offer the opportunity for you to submit any statement

you care to make regarding the matter above discussed. Please inform this Office within ten days whether you wish to

submit such a statement. We shall similarly offer the union trustees an opportunity to submit a statement. 

In addition, we request clarification with respect to the accuracy of item 10, the plan document, submitted in

conjunction with the notice of intent to terminate the Plan. The union trustees have submitted to us a copy of the Plan

document which appears to be a complete and accurate copy of the document, and which differs materially from item

10 of your submission. Page one of the union trustees' submission is headed, * * * This page contains, inter alia, a

provision establishing a Board of Trustees consisting of an equal number of management and union representatives. Page

one of your item 10 is headed, * * * and contains no provision regarding the establishment of a Board of Trustees. Please

advise us whether your item 10 is accurate and complete. 

* * * of this Office has been assigned to handle this matter. You may contact him in [*4] writing at the above

address, or by telephone at * * * 

Henry Rose 

General Counsel