Rockwell pension pattern bargaining after 1973

                                                      OPINION 77-20 A

                                                      211(c)(1)
Mr. Edwin C. McManus
Staff Vice President
Employee Benefits Program
Rockwell International Corp.
[Recipient address omitted]

Dear Mr. McManus:

This is in reply to your letter of January 12, 1977
requesting our prompt confirmation of your interpretation
of section 211(c) of the Employee Retirement Income Security
Act of 1974 (ERISA) that, based on the facts set forth in
your letter, (1) the lifetime supplement described therein
constitutes a "supplementary or special plan provision" and
(2) the Rockwell International Corporation Hourly Rated
Employees Pension Plan (the Plan) is "a plan maintained on
January 1, 1974 pursuant to a collective bargaining
agreement" which is still in effect.

Your letter contains the following facts and representations:
The benefits provided by the Plan have historically been
patterned after the plan maintained pursuant to the collective
bargaining agreement between General Motors Corporation and
the UAW. This pattern has existed since 1950, which was the
date on which the Plan was adopted by Rockwell International
Corporation (Rockwell). Since 1950 there have been nine
negotiations between Rockwell and the UAW. In each of these
negotiations whenever General Motors agreed to increase
benefits, Rockwell has also increased benefits. The benefits
provided by Rockwell throughout this period have, with two
exceptions, been the same as those provided by General Motors.
In 1968 and in three negotiations since that time, the
benefits were substantially identical. The language of the
Plan is substantially the same as the General Motors Pension
Plan.

In 1973, General Motors and the other two major automobile
manufacturers introduced a six-year pension agreement contain-
ing a supplementary lifetime benefit for certain employees which

                                                     OPINION 77-20 A
                          -2-


benefits commence at age 65. You believe that this benefit
clearly is a "supplementary or specia1 plan provision" within
the meaning of section 211(c)(1) of ERISA. Rockwell, consistent
with the foregoing pattern, agreed to include this supplement
in the Rockwell Plan on February 5, 1974, as part of a
six-year pension collective bargaining agreement.

You believe that Rockwell's long standing tradition of pattern
bargaining with the UAW, in which Rockwell has followed the
General Motors Corporation's plan benefit increases, compels
the determination that the Plan containing such provisions was
maintained on January 1, 1974. The UAW staggers its
negotiations with the major autoworkers and their suppliers.
The major autoworkers pension collective bargaining agreement,
which Rockwell had traditionally followed, was entered into
prior to January 1, 1974. You believe that if it is concluded
that the Plan is not deemed to be maintained on January 1, 1974
pursuant to the collective bargaining agreement still in effect,
the result would be inequitable and would disrupt orderly and
historical collective bargaining relationships.

Section 211(c) of ERISA provides that:
     (c)(1) In the case of a plan maintained on January 1, 1974,
      pursuant to one or more agreements which the Secretary
      finds to be collective bargaining agreements between
      employee organizations and one or more employers, no plan
      shall be treated as not meeting the requirements of
      sections 204 and 205 solely by reason of a supplementary
      or special plan provision (within the meaning of
      paragraph (2)) for any plan year before the year which
      begins after the earlier of--
         (A) the date on which the last of such agreements
          relating to the plan terminates (determined without
          regard to any extension thereof agreed to after the
          date of the enactment of this Act), or
         (B) December 31, 1980.
      For purposes of subparagraph (A) and section 306(c),
      any plan amendment made pursuant to a collective
      bargaining agreement relating to the plan which amends
      the plan solely to conform to any requirement contained

                           - 3 -
                                              OPINION 77-20 A



      in this Act or the Internal Revenue Code of 1954 shall
      not be treated as a termination of such collective
      bargaining agreement. This paragraph shall not apply
      unless the Secretary determines that the participation
      and vesting rules in effect on the date of enactment
      of this Act are not less favorable to participants, in
      the aggregate, than the rules provided under sections
      202, 203, and 204.
      (2) For purposes of paragraph (1), the term "supple-
      mentary or special plan provisions" means any plan
      provision which--
         (A) provides supplementary benefits, not in
         excess of one-third of the basic benefit, in
         the form of an annuity for the life of the
         participant, or
         (B) provides that, under a contractual agreement
         based on medical evidence as to the effects of
         working in an adverse environment for an extended
         period of time, a participant having 25 years of
         service is to be treated as having 30 years of
         service.
       (3) This subsection shall apply with respect to a
       plan if (and only if) the application of this sub-
       section results in a later effective date for this
       part than the effective date required by subsection
       (b).

Your letter does not contain sufficient information concerning
the Plan's provisions regarding supplementary lifetime benefits
to determine whether such provisions constitute a "supplementary
or special plan provision" within the meaning of section 211(c)(2)
of ERISA. Accordingly, we cannot issue any opinion in response
to your request in that regard.

In regard to your question with respect to whether the Plan
was maintained on January 1, 1974 pursuant to a collective
bargaining agreement which is still in effect, it is our
opinion that, on the basis of the representations in your
letter of January 12, 1977 as to all the facts and circumstances
surrounding the agreement of February 5, 1974, the action taken
by Rockwell International Corporation with respect to the
patterned bargaining of certain supplementary lifetime benefits
relates back to the pre-l974 pattern agreement for purposes

                             -4-               OPINION   77-20 A



of section 211(c)(2) of ERISA. It should be noted that this
opinion is limited to the facts and circumstances of this
request and should not be interpreted as imploing, as a
general proposition, that later patterned bargaining will
be deemed to be concluded at the same time as the agreement
of the pattern setter for purposes of the applicability of
any ERISA provisions.

Notwithstanding the above, this letter should not be deemed to
be an opinion of the Department as to whether section 211(c)
applies to the Plan. In this regard, we are issuing no opinion
herein as to whether the agreements mentioned in your letter
constitute "collective bargaining agreements" for purposes of
section 211(c)(1) of ERISA or whether the Plan's participation
and vesting rules in effect on the date of enactment of ERISA
were not less favorable to participants, in the aggregate, than
the rules provided under sections 202, 203, and 204 of ERISA.
This letter constitutes an advisory opinion as defined in ERISA
Procedure 76-1 (copy enclosed). Accordingly, this letter is
issued subject to the provisions of such procedure, including
section 10 thereof relating to the effect of advisory opinions.
Sincerely,



Fred W. Stuckwisch
Director
Office of Regulatory
  Standards and Exceptions

Enclosure