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Pension Benefit Guaranty Corporation 

1200 K Street. N.W., Washington, D.C. 20005-4026 

DECO 12005 

Re: Case 200106, Slater Ste.els Fort Wayne Specialty Alloys 

'-;;;Oiy='-;is-;io-n--;-;Uc-ni;:-te-d;;-:;S=tee-' I Workers Pension Plan (the "Planlt) 

Deari'--_----' 

The Appeals Board reviewed the appeal filed by your client, I I and 

the sLiPplement ~ou flied on his behalf, regarding PBGC's January 27. 2005 determination 

that ( is not entitled to a 70180 retirement benefit ("70/80 Retiremenr). For the 

reasons stated below. the Appeals Board concluded that PBGe is unable to guarantee a 

701SO Retirement for[--- mm~because he did not meet the requirements for that benefit 

before the Plan's tennination date. 

PBGe's Determination and Your Appeal 

PBGC's detennination letter told L ____ )hat in addition to the age and service 

. requirements for eligibility for a 70/SO Retirement. -the Plan requires that the participant's 

continuous service be broken due to a shutdown. At the time of your termination of 

employment, the company had not yet shut down; therefore you were not ~ligible for the 

70/80 Retirement.· . . 

I ! February 13, 2005 appeal said that PBGC's reason for denying his 

entitlement to a 70180 Retirement was an incomplete representation of the Plan's 

language. He quoted the Plan's language. emphasizing that a participant could qualify for 

a 70180 Retirement by having his Continuous Service broken by either a plant shutdown or 

a layoff. His appeal letter stated as 'oHows: 

'11lerefore. ( believe I am entitfed to the full 70180 Pension because I meet the 70180 

ellglbftlty requirements and my 'continuous senrice • was broken on 1 ~31-03 \\'hen I was 

laid off and incuned a permanent separation from Slater Steels. This break in 

continuous service was spelled out in a document entitled 'Shutdown Agreement' dated 

October 26, 2003 (between Slater Steels and USWA) and approved by 1he Federal 

. Judge adjudicating Stater Steels bankruptcy and closure .••. If. 

Your March 10, 2005 letter requested an~x.tension of time to supplement the 

appeals of thirty Plan participants. Including C I until·30 days after PBGC's 

response to a request that would be flied .under the Freedom of Infonnation Act (FOIA). 

You filed your FOIA request on March 15,2005 and PBGe's Disclosure Officer responded 

to your request under cover leHer dated July 19, 2005. On August 2, 2005, you requested 
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.. another extension of time to me supplemental appeals for your clients until September 9, 

2005. The Appeals Board granted both of your extension requests. 

Your September 7,2005 supplemental appeal asserted that PBGC erred in finding 

that a permanent shutdown of the Fort Wayne plant did not occur before the November 6, 

2003 date of plan termination (-DOPr'). You stated that PBGC. in concluding that a 

permanent shutdown had not occurred before DOPT, had failed to take into account the 

October 26,2003 Shutdown Agreement between USW and Slater, which provided that a 

"permanent shUtdown had occurred [as of October 26. 20031 as a result of the idl1ng of the 

Fort Wayne facllity,- You therefore Contended that each employee who met the age and 

service requirements and terminated employment under the Shutdown Agreement before 

DOPT could qualify for 70lBO Retirement based on a -permanent shutdown." 

Law, Regulations and Policy 

PBGC records indicate that, when the Plan terminated on November 6, 2003. it did 

not have sufficient assets to satisfy the benefits guaranteed by PBGC under Title tV of the 

Employee Retirement Income Seculity Act of 1974 eERISA'*). The Appeals Board has 

limited this decision to whether I I met the necessary conditions for PBGe to 

guarantee 70/80 Retirement f~>r him. 

Entitlement to a guaranteed benefit is determined by the provisions of the Plan's 

governing document that were in effect when the Plan terminated, and by ERISA and 

PBGC's regulations. ERISA § 4022(a) provides that, subject to certain limitations, PBGC 

shaU guarantee the payment of all nonforfeitable benefits under a covered pension plan 

that terminates. ERISA defines a -nonforfeitable- benefit as -. . . a benefit for which a 

participant has satisfied the conditions for entitlement Lmder the plan or the requirements of 

[ERISA].D See ERISA § 4401 (a)(8), 29 U.S.C. § 1301 (a)(8); 29 C.F.R. § 4001.2 (definition 

of nomorfeltable benefit). PBGe regulations provide that a guaranteed benefit must be 

nonforfeitable on the plan's termination date. See 29 C.F.R. § 4022.3. 

The issue In this appeal is whether I Iqualified for 70180 Retirement 

because his "Continuous Service- was broken due to either a -layoff" or a ·permanent 

shutdown of a plant, department, or a subdMsion thereof." Conditions such as these, 

which involve how the employment relationship Is terminated, are substantive requirements 

established under Plan terms that must be satisfied by the tennination date. See Fetty v. 

PBGe, 915 F. Supp. 230 (D. Colo. 1996), aff'd, 104 F.3d 367 (10th Cir. 1996). cert. denied 

522 U.S. 812 (199n (subsidized early retirementbeneflts based upon plan shutdown are 

not guaranteed if the shutdown occurs after the date of plan termination); see also PBGe 

v.. Republic Technologies In». 386 F.3d 859 (681 Cir. 2004) (court affirms PBGe's selection 

of a pre-shutdown termination date that avoided vesting of shutdown benefits). 

A PBGe policy, "Payment of Benefits to Working Retirees, Ii provides guidelines for 

the agency's payment of shutdown benefrts under plans ttlat PBGe has terminated and 

trusteed. Under this policy. PBGC -will scrutinize shutdown benefits and make case- bycase determinations of whether facility shutdowns have occurred. - The poley defines a 

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"shutdown benefit" as "a subsidized early retirement benefit that becomes payable when all 

or substantially all of an employe"'s operations at a facilIty cease, resulting in a loss of Jobs 

that is expected to be permanent for all or substantially all of the employees at that facility 

who are pa.rticipants in the plan," 

Relevant Plan Provisions 

The Plan defines 70180 Retirement as follows: 

-4.04 70180 Retirement 

(a) Subject to the provisions of Section 5.03. jf aParticipanfs Continuous Service is 

broken due to a layoff, a permanent shutdown of a plant, department, or a 

subdivision thereof. or a Disability that does not qualify as a Permanent 

Incapacity Disability, and the participant has attained age 55 and completed at 

least 15 years of Continuous Service, or the sum of the. Partlelpanrs age and 

years of Continuous Service equals 80 or more; but he has not attained age 62 

as of such date, he may elect to retire under the 70180 retirement." 

Plan section 1.05 provides that a "Break in Service" means "a period which 

constitutes a break in an Employee'S Vesting Service. as provided in Section 3.01 (b)." 

Section 3.01 (a) provides that '"Vesting Service shall begin on an Employee's Employment 

Commencement Date and end on the Employee's Severance Date:' Subsections 3.01 (b) 

through (e) set forth additional vesting service rules that invoive situations such as reemployment, family leave, and military selVice; however, none of the subsections provides 

that a participant can incur a break in service before !he Severance Date. 

Plan § 1.36 defines a -Severance Dste" as the earliest of: 

-(a) the date an Employee quits, retires, is discharged (however. if the Employee is reemployed within six months of his initial Severance Date, such Severance Date shall be 

disregarded). tennination (if and when such termination ~urs pursuant to the 

provisions of the basic collective bargaining agreement) due to pennanent shutdown of a 

plant. department. or subdivision. thereof. or dies; (b) the first anniversary of the date on 

which an Employee is first absent from service, with or without pay. for any other reason 

such as vacation, sickness. disabHity, layoff, or leave of absence; or (c) the second 

anniversary of the date on which an Employee is first absent from service, with orwithout 

pay, by reason of compensable disability .... • . 

Background 

Slater and several of its affiliates filed Chapter 11 bankruptcy petitions in the United 

States Bankruptcy Court for the District of Delaware ("Bankruptcy Courr) on June 2, 2003. 

On October 8,2003, Slaler filed a motion seeking to idle its operations at Fort Wayne. 

Indiana, and Lemont, Illinois ("Idling Motion'. The Idling Motion stated that the "Slater 

Companies have faced increasing financial stress since 2002" and that they "together with 

many oCher companies in the steel industry. have been adversely affected by historically 
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high levels of stainless steel bar imports in the United States, increased output costs, a 

decrease in the average selling price of stainless steel bar products and production 

curtailments." 

The Idling Motion further stated that 

"11. . .• the Slater Companies have determined that they lack suffICient liquidity ... to 

support the magnitude of losses that the Stainless Steel Bar ausiness [at the Fort 

Wayne Facility] continues to experience. . . . although there have been some 

expressions of interest, the Debtors had not yet received a satisfactory offer to purchase 

the Fort Wayne Facility as a going concern ..•. The Debtors hope that by idling their 

operations at the Fort Wayne Facility in an orderly manner, . .. they can preseNe the 

value of the Fort Wayne Facility in order to (a) maximize values for creditors, (b) 

minimize the disruption to the Slater Companies' remaining operations and (0) minimize 

the effort and expense necessary to renew operations in the event the Debtors are able 

to identify a buyer for the Fort Wayne Facility." and 

"13. In connection with their discussions with their lenders and other advisors, the 

Debtors have formulated a plan (the 'Idling Plan') for the idling of operations to protect 

the equipment and infrastructure at the Facilities .... " 

On October 28, 2003. the Bankruptcy Court issued an 'order that authorized 

Implementation of the Idling Plan. 

On October 26, 2003. Slater and USW entered Into a "Shutdown Agreement," which 

was subject to Bankruptcy Court approval. The Shutdown Agreement stated that: "The 

idling of the Fort Wayne facilHy is scheduled to commence upon the entry of a Bankruptcy 

Court order approving the Idling Motion, and Slater anticipates that most operations will be 

shut down by December 31, 2003."· The Shutdown AgreemeQt, among other things, 

provided: . 

"2. Termination of EmpJovrnent Relationship. Each employee covered by this 

Shutdown Agreement shall be deemed to have a permanent separation date 

from Slater and to have his or her continuous service broken as of the date laid 

off from the Fort Wayne facility follOwing 1he date hereof [OctoberD 20031-

3. Pension Plan. The parties agree that those employees separated on or after the 

date of this Shutdown Agreement as a result of the idling of the Fort Wayne 

facility, have had their 'Continuous Service' broken due to a layoff or pennanent 

shutdown of a pfant, deparbnent, or a subdMsion thereof. within the meaning of 

Section 4.04 of the Pension Agreement Between' Slater Steel, Fort Wayne 

Specialty Alloys Division and United Steelworkers of America Res1ated Effective 

January 1, 2001 (hereinafter the 'Pension PIarT), thus entitling those employees 

to receive a 70180 retirement benefit under the Pension Plan. If otherwise 

eligible •••. 

6. Prgcedures for Reductions in Fog. In reducing the 'workforce at the Fort 

Wayne faciJ'lly, Slater shall layoff employees based on seniority .•• except that 

Slater will use Its beSt efforts to layoff, as soon as posSible, those employees 

eligible for the 70180 retirement benefit under ~e Pension Plan, providing that 
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the eligible employees execute a release of Slater from any claims relating to 

such layoffs." . 

In an Order dated November 18, 2003, the Bankruptcy Court authorized Slater to enter into 

the Shutdown Agreement with the USW. 

I and a Slater representative signed a -General Release of Slater Steels 

Pursuant to the Shutdown Agreement." In this Release, Slater agreed that ,---I -,-------,------__ -----' 

Continuous Service would be deemed broken due to layoff effective 10131/2003 "in 

accordance with the Shutdown Agreement," and he agreed to release Slater from all claims 

related to the layoff. Approximately 30 other Slater employees signed similar releases.' 

On November 6, 2003, PBGC issued to Slater a Notice of Determination shlting that 

PBGe had determined that the Plan "will be unable to pay benefits when due" and "the 

Plan must be terminated in order to protect the interests of the Plan's participants" and, 

accordingly, the Plan should be tenninated effective November 6, 2003. PBGC and Slater 

then entered into an agreement, dated May 31, 2004, provi~ing that the Plan was 

tenninated effective November 6, 2003, and that PBGC was appOinted trustee of the Plan 

under 29 U.S.C. §1342(c). . 

PBGC found; based on Plan actuarial valuation reports, that there were 435 active 

plan participants as of January 1, 2001, 420 active plan participants as of January 1 , 2002, 

and 366 active plan participants as of January 1, 2003. Additionally, PBGe records 

con.tain monthly -Inter-Office Correspondence" prepared by Diana Scruggs, who was 

Slater's Administrative Coordinator for Human Resources, for the months ending 

September 30 through December 31. 2003. This correspondence contains the following 

end-of-month employment statistics for the unionized Production and Maintenance (P&M) 

positions, the unionized Office and Technical (0& T) positions, and Salaried positions at the 

Fort Wayne facility. 

Date of Employee Count P&M O&T Salaried Total 

Sept 30. 2003 250 27 84 361 

Oct. 31,2003 182 24 80 286 

Nov. 30,2003 113 17 58 188 -

Dec. 31, 2003 25 4 . 25 54 

Also, it appears from the correspondence dated December 1, 2003, that 96 of the 98 

employees who terminated employment during November 2003 had done so after the 

November 6, 2003 DOPT. 

In a memorandum dated September 23,2004, PBGC concluded that, based on the 

information It had concerning Slater's employment levels, -the Fort Wayne plant was still 

operating on November 6, 2003 (DOpn." Accordingly, because a permanent shutdown 

had not occurred before DOPT, PBGe determined that Plan participants -are not eligible to 

receive the 70180 shutdown pension benefits." 
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Discussion 

1 . Break in Continuous Service due to Lay~ff 

Your clienfs original appeal letter suggested that,ln addition to the age and service 

eligibility requirements for a 70180 Retirement, he satisfied the third eligibility requirement 

by having his Continuous Service broken due to a layoff, as provided by the Shutdown 

Agreement. 

As noted above, Plan § 1.36 defines the ·Severance Date" as the earliest of three 

possible dates, with the following governing entitlement to a benefrt based on layoff: "the 

first anniversary of the date on which an Employee is first absent from service, with or 

without pay, for any •.. reason such as ... layoff .... - Also, Plan sections 1.05 and 3.01 

establish that a "Break in Service does not occur prior to the Severance Date. Thus, the 

Plan's terms clearly provide that a "Break in ServiceP based on layoff cannot occur before 

the first anniversary of the date the participant was first ~Iaced on layoff. Accordingly, the 

Board concluded that, based on Plan terms,1 _ could not qualify for a guaranteed 

70/80 Retirement benefit based on a layoff, because he did not experience a "Break in 

Servicen based on layoff before the Plan's DOPT. 

2. When the Shutdown Occurred 

Your supplemental appeal letter argued that: 

"PBGC erred In finding that a pennanent shutdown of the Fort Wayne plant did 

not occur before the DO PT. Remarkably, in the two docum'ents that PBGC fumished in 

reply to the USW's information request - a September 23. 2004 memorandum from Tom 

Skotedis. Actuary, TPD7 to Susan Strassman, OPSS. and a July 8, 2005 e-mail 

message from Tom Skotedis to Virginia Wright - PBGC fails to mention and review the 

October 26. 2003 Shutdown Agreement between the USW and the Company. The 

Shutdown Agreement, which determined within 'the meaning of the Ptan that a 

permanent shutdown occurred as a result of the idling of the Fort Wayne facirrty and that 

each affected employee terminated service upon the last date of employment, controls. 

In its September 23, 2004 memorandum, PBGe relies upon several news 

articles reporting levels of employment at the plant. including an article that relates" that· 

as of December 2. 2003, there were approximately 190 employees working at the plant 

These news articles are not primary evidence. Nowhere in its record does PBGC 

describe the 'tYOrk that was performed at the Fort Wayne plant after the OOPT.· 

The Appeals Board agrees that the news articles are not primary evidence. 

However, the employment totals discussed in PBGe's memorandum essentially are 

consistent with the totals in the Inter-Office Correspondence prepared byl I (see 

"Background" above). These documents, which you received in response to your request 

for information under the Freedom of Information Act, constHuta reliable evidence of 

employment levels at the Fort Wayne facUlty. Accordingly, the Board concluded that the 
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~clusions in PBGC's memorandum are valid, notwithstanding the references to news 

articles. . 

As discussed above, PBGC's "Payment of Benefits to Working Retirees· policy 

defines a shutdown benefit as -8 subsidized early retirement benefit that becomes payable 

when aU or substantially all of an employer's operations at a facility cease, resulting in a 

loss of jobs that is expected to be permanent for all or substantially all of the employees at 

that facility who are participants in the plan.· The shUtdown benefit provisions in this policy 

reflect PBGe's interpretation of the guaranteed benefit provisions under Title IV of ERISA 

and under PBGe's regulations. Additionatlv, the guidance in the Policy is based on 

PBGC's experience in administering plan provisions similar to those involved in this appeal. 

Finally, the meaning of "shutdown" in PBGC's PoliCy is fully consistent with the plain 

meaning of the term, and there also is nothing in the Plan document or the Collective 

Bargaining agreement ("Basic Agreement") that would indicate that a different meaning 

was intended to apply in this case. 

Accordingly, in light of the substantia' level of employment at the Fort Wayne facUity 

on the Pian'S termination date; the Appeals Board decided that a "Permanent shutdown" of 

the Fort Wayne facility had not occurred on or before the Plan's November6, 2003 DOPT. . 

The information provided by Slater, which shows that approximately 180 P&M Workers and 

. 24 Office Workers were employed on DOPT at the facility, plainly is inconsistent with a 

concluSion that *all or substantially all of an employer's operations at a fac!IHy" had ceased. 

The Board further observes that the Shutdown Agreement, which states that "Slater 

anticipates that most operations will be shut down by December 31, 2003," is conSistent 

with the conclusion that the Fort Wayne facility was still operating on OOPT. 

3. The Shutdown Agreement 

Your appeal letter stated that: 

"The Shutdown Agreement. which recogniZed that a pennanent shUtdown WOUld 

occur upon the idrrng of the facilHy, construed Section 4.04 of the Plan, which 

establishes the 70180 Retirement Benefit Further, the acknowledgement that 

employees would tennlnafe continuous service upon the permanent shutdown of the 

plant is consistent with Section 3.01 (a) of the Plan, which provides that a 'Severance 

Date' occurs when 'an Employee quits, retires, is discharged ...• [or upon] tennination (if 

and When such termination occurs pursuant to the provisions of the basic collective 

bargaining agreement) due to pennanent shutdown of a plant, department, or 

subdivision,lhereof[.r 

The Shutdown Agreement did not include PBGe as a party. was negotiated without 

PBGC's partiCipation, and was not approved by the Bankruptcy Court until after PBGC had 

Issued its Notice of Determination that the Plan should be terminate~. Furthennore, this 

Bankruptcy Court approval did not occur until- after the Plan's tennination date. 

Accordingly, the Shutdown Agreement has no legal effect upon PBGe with respect to its 

obligation to' guarantee benefits under rltle IV of ERISA. See ERISA §§ 4022, 4061; 

29 U.S.C. §§ 1322, 1361. 
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So that participants might know when they have satisfied the eligibility requirements 

for a benefit payable under a qualified. defined-benefit pension plan, ERISA requires that 

every pension plan shall be established and maintained pursuant to a written instrument. 

ERISA § 402,29 U.S.C. § 1102. Of course, plan administrators (or others in authority) 

may issue qocumenls to construe ambiguous plan terms, and such interpretations may be 

separate from the formal plan document. However, even if a document is intended to be . 

an interpretation of plan language with respect to a given factual situation. the document is 

ineffective in detennining rights under a pension plan when it conflicts with unambiguous 

plan provisions. 

The Appeals Board found that, rather than being an Interpretation or construction of 

the Plan's and Basic Agreemenfs provisions in light of the events that were occurring at 

the Slater facility, the Shutdown Agreement introduced a new' way to meet the third 

eligibility requirement for 70180 Retirement Although the Shutdown Agreement attempts to 

define "permanent shuJtjown" by equating it to the "idling'" of the Fort Wayne facility, there 

is a substantive difference between those two terms. As discl;Jssed above, a "shutdown" 

occurs when "all or substantially all of an employer's operations at a facility cease, resulting 

in a loss of jobs that is expected to be permanent." An -idling," on the other hand, was 

described in the Idling Agreement as "an orderiy cessation of operations at the Facilities 

during which time. and after which, the Debtors will seek a buyer for the Facilities and their 

respective assets." It may have seemed probable. when the fdling and Shutdown 

Agreements were made, that a permanent shutdown eventually would occur at the Fort 

Wayne facility. However. the Appeals Board is unable to conclude, based on the record 

before it,. that the events that occurred before DOPT were equivalent to a permanent 

shutdown. 

Additionally. the Appeals Board found no language in the Plan or the Basic 

Agreement to suggest that a participant could qualify for a 70/80 Retirement based on 

layoff by signing a release agreeing to accept a layoff and an immediate termination of 

employment inantJcipation of a permanent shutdown of a plant. As discussed above, the 

Plan document clearfy provided that a participant could not qualify for 70180 Retirement 

based on layoff until at least one year after the date the participant was first put on layoff. 

The Shutdown Agreement accordingly appears to be nothing more than an attempt to allow 

certain participants to vest in 70180 Retirement prior to the Plan's termination by PBGe, 

even though the terms of the Plan and the Basic Agreement do not provide for such 

vesting. Indeed, we know of no reason why Slater and USW provided in the Shutdown 

Agreement that employees eligible for 70180 Retirement benefit could be laid off first -- not 

necessarily In accordance with the seniority provisions of the Basic Agreement - outside of 

an attempt to require PBGe to guarantee 70180 Retirement fori land others in 

his situation. We note that section IX of the Basic Agreement· establishes as a basic 

principle that "no employee shall remain at work while a qualified employee with more 

continuous service seniority is on an extended layoff." 

Accordingly, . the provisions that Slater and USW adopted In the Shutdown 

Agreement with respect to qualification for 70180 Retirement cannot be treated as a plan 

interpretation. Rather. since the provisions of the Shutdown Agreement as applied to the 
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facts of the case essentially caused a change in the existing terms of the Plan and Basic 

Agreement, such changes should have been implemented through the plan amendment 

process. And if the parties had adopted a plan amendment at the time that Slater and 

USW entered Into the Shutdown Agreement, PBGe would have been unable to guarantee 

benefits under it because the amendment would have been adopted less than one full year 

before the Plan terminated. See ERISA § 4022(b)(1); 29 U.S,C. § 1322(b)(1); and 

29 C.F,R. §-402224, .25. 

We further note that the Shutdown Agreement did not include PBGC as a Party, 

was negotiated without PBGe's participation, and was not approved by the Bankruptcy 

Court until after PBGe had issued its Notice of Determination that the Plan should be 

terminated. Furthermore, this Bankruptcy Court approval did not occur until after the PJan's 

termination date. Accordingly, the Shutdown Agreement has no legal effect upon PBGe 

with respect to its responsibilities under Title IV of ERISA. 

In conclusion. the Appeals Board found that I ~id not intur a break in . 

Continuous Service before the Plan's termination date as a result of a permanent 

shutdown of his plant. Furthermore, even though he accepted a layoff arid immediate 

termination of empfoyment In accordance with the terms of the Shutdown Agreement. the 

acceptance of layoff did not constitute a break In ContinUous Service under the Plan's 

terms. Therefore. he did not Qualify before the Plan's termination date for 70/80 

Retirement based on layoff. We regret that the outcome of your appeal Is not favorable, 

but ERISA and PBGe regulations do not allow PBGC to guarantee shutdown or layoff . 

benefits to participants who did not meet the eligibnity requirements for such benefits 

before their plan terminated. 

Decision 

Having applied the law, Plan provisions, and PBGe rules to the facts of this case, 

the Appeals Board decided thatl I did not qualify for a 70/80 Retirement prior to 

the Plan's termination, and therefore PBGe is unable to guarantee that form of benefit for 

him. This decision is the agenCy's final action regarding the issues decided in this appeal. 

I I may. if he wishes, seek court review of the Board's decision that he is not 

entitled to a guaranteed· 70/80 Retirement benefit. 

As was stated in PBGGs determination, I Iwill ~eceive a full determination 

of his PBGe benefits no later than June 1,2007, and he will have an opportunHyto appeal 

that determination. If you or your client needs other information from PBGe, please call 

PBGe's Customer Contact Center at 1-800-400-7242. 

Sincerely, . 

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Michel Louis 

Appeals Board Member 
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