employed as of such date." Revenue Procedure 89- 65 Sec. 4.02(2).
Here, Amphenol's 1990 plan year ended on December 31, 1990. Thus, in order for Amphenol to take advantage of Model Amendment III's freeze on benefits, Amphenol must show that at a time before December 31, 1991, it provided proper § 1054(h) notice of the extension of the benefit freeze to all participants employed on the date of such notice. If Amphenol cannot show this, then the freeze on benefits expired on December 31, 1990. Thereby making Amphenol's 1990 Amendment, which reduced benefits effective January 1, 1989, an improper reduction of accrued benefits in violation of § 1054(g).
At first blush, there appears to be a disputed issue of fact as to whether proper notice was given under § 1054(h) with respect to an extension of the suspension of benefits beyond December 31, 1990.
Defendant states that notice of the extension of the freeze past December 31, 1990 was posted at the Sidney Division plant on or about December 14, 1990, and subsequently delivered to salaried employees on January 14, 1991. (See Stulman Opp. Aff., PP3, 4, Exhs. A-C). However, Defendant offers no evidence, in fact they do not even argue, that the bulletin they posted actually provided notice "to all participants employed as of such date," as required by Revenue Procedure 89- 65 Sec. 4.02(2). In opposition, Plaintiffs offer the affidavits of five persons who were employed at the Sidney Plant in December 1990, all of whom state that they did not see any postings concerning the pension plan for salaried employees. (See Peters Aff.; Krantz Aff.; Marmillion Aff.; Long Aff.; Cole Aff.).
Even after resolving all ambiguities and drawing all reasonable inferences against the moving party, see Matsushita Elec., 475 U.S. at 586, it is clear that Defendant has failed to demonstrate that a genuine issue of fact exists as to whether "notice described in section 204(h) of the Employee Retirement Income Security Act of 1974 [was] provided no later than the end of the 1990 plan year to all participants employed as of such date." Revenue Procedure 89- 65 Sec. 4.02(2).
Accordingly, the Court finds that Amphenol did not extend the freeze on benefits past December 31, 1991. Thus, Amphenol's attempted retroactive application of the 1990 Amendment violated § 1054(g)'s prohibition on reducing accrued benefits.
In summary, the Court finds that Amphenol amended the 1987 Plan no later than January 25, 1990. However, it was not until February 1, 1991, when Amphenol met the notice requirements of § 1054(h) by providing "a written notice . . . to each participant" in the 1987 Plan, that the 1990 Amendments became retroactively effective.
Furthermore, the Court finds that Amphenol did not extend the freeze on benefits past December 31, 1991. Consequently, Amphenol's attempted retroactive application of the 1990 Amendment violated § 1054(g)'s prohibition on reducing accrued benefits. The Court finds that Defendant is liable to Plaintiffs for accrued early retirement benefits calculated under the reduction factors as they existed in the 1987 Plan for the time period from January 1, 1989 through February 1, 1991.
It is therefore ORDERED that Plaintiffs' Motion for Partial Summary Judgment is GRANTED IN PART. Defendants' Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
January 31, 1997
Binghamton, New York
HON. THOMAS J. McAVOY
Chief U.S. District Judge