Q. What is the difference between a UBCJA Supervision and a US DOL Trusteeship?
A. The only difference is in name.
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2006 UBCJA Constitution
Section 6D. The United Brotherhood of Carpenters and Joiners of America shall have the right to establish supervision over and to conduct the affairs of any subordinate body (including the removal of any or all officers of such subordinate body) to correct financial irregularities or to assure the performance of collective bargaining agreements and the responsibility of the subordinate body as a bargaining agent or to protect the interests and rights of the members or whenever the affairs of the subordinate body are conducted in such a manner as to be detrimental to the welfare of the members and to the best interests of the United Brotherhood, subject, however, to the provisions of Paragraph H of Section 10. The authority granted to the United Brotherhood herein includes the authority to establish supervision to prevent secession or disaffiliation by any subordinate body or bodies.
Source: http://franco1.info/UBCJA/UBC_Con_2006.pdf, pages 5-6
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Office of Labor-Management Standards (OLMS)
Trusteeships
Section 3(h) of the LMRDA defines a “trusteeship” as “any receivership, trusteeship, or other method of supervision or control whereby a labor organization suspends the autonomy otherwise available to a subordinate body under its constitution or bylaws.” The same definition applies under the CSRA. A “labor organization” includes any labor union except a state or local central body or a union representing solely public employees of a state or political subdivision of a state, such as a county or municipality. The term “subordinate body” means “subordinate labor organization.” Any trusteeship imposed over a body that meets the definition of “labor organization” is subject to the trusteeship provisions. The most common example of a trusteeship is an international or national parent body union imposing a trusteeship over a local labor organization.
Trusteeship Regulations
Trusteeship Publication
[US DOL] Last Updated: 11/16/06
Source: http://www.dol.gov/olms/regs/compliance/redesign_2006/redesign2006_trusteeships.htm
Existence of a Trusteeship
A trusteeship exists whenever a parent union suspends a subordinate union's constitutional or statutory autonomy; that is, whenever the parent assumes control over affairs that the subordinate would normally handle itself. Thus, an action referred to as an “administratorship,” “stewardship,” or “supervisorship” is a trusteeship if it involves a suspension of autonomy otherwise available, regardless of the word used to describe it. Even when the suspension of autonomy is only partial, a trusteeship exists and is subject to the LMRDA.
Source: http://www.dol.gov/olms/regs/compliance/trustreq.htm#et
2009-10-23
Retirement, Pension Benefits, and Union Carpenter Officers and Employees (USDOL, EBSA, Kay)
The following letter to Mr. Kay was sent 2009 October 22 at 1:09 PM.
Jonathan Kay, Director
U.S.
Employee Benefits Security Administration
New York
33 Whitehall St, Ste 1200
New York , NY 10004
Tel: (212) 607-8600 or (212) 607-8644
Fax: (212) 607-8681 or (212) 607-8689
1-866-444-EBSA (3272)
kay.jonathan(at)dol.gov
http://www.dol.gov/ebsa/
Employee Benefits Security Administration
Tel: (212) 607-8600 or (212) 607-8644
Fax: (212) 607-8681 or (212) 607-8689
1-866-444-EBSA (3272)
kay.jonathan(at)dol.gov
http://www.dol.gov/ebsa/
RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
Dear Mr. Kay:
On November 8, 2008, I began to protest to the New York City District Council of Carpenters (NYCDCC) Election Committee, and thereafter to the Election Monitor Steven Bennett and the UBC General President Douglas McCarron, that the incumbents Executive Secretary-Treasurer (EST) Michael J. Forde, President Peter Thomassen and Vice President Denis Sheil whom are receiving carpenters’ union pension plan benefits, and therefore are retired, were ineligible as candidates in the NYCDCC 2008 Election. Additionally, several other local union officers and NYCDCC employees are receiving pension plan benefits. Furthermore, since they and I are members of the same union I, as do many other union carpenters, insist that all carpenters’ union pension plans within the UBC are the equivalent of the United Brotherhood of Carpenters Pension Plan (aka International Plan) with respect to eligibility for office.
The 2006 United Brotherhood of Carpenters and Joiners of America (UBC) Constitution, Section 31D, pg 33-34, states:
“A member cannot hold office or the position of Delegate or a Committee position, or be nominated for office, Delegate or a Committee position, if receiving a pension under the United Brotherhood of Carpenters Pension Plan, or unless present at the time of nomination, except that the member is in the anteroom on authorized business or out on official business, or prevented by accident, sickness, or other substantial reason accepted by the Local Union or Council from being present; nor shall the member be eligible unless working for a livelihood in a classification within the trade autonomy of the United Brotherhood as defined in Section 7 or in employment which qualifies him or her for membership, or is depending on the trade for a livelihood, or is employed by the organization as a full-time officer or representative; provided, further, that members who are life members, apprentices, trainees or probationary employees shall not be eligible. A member must have been twelve (12) consecutive months a member in good standing immediately prior to nomination in the Local Union and a member of the United Brotherhood of Carpenters and Joiners of America for two consecutive years immediately prior to nomination, unless the Local Union has not been in existence the time herein required, and must remain a member in good standing at all times in order to remain in the position to which he is elected or appointed. A member who retires after being elected may complete the term for which elected unless receiving a pension under the United Brotherhood of Carpenters Pension Plan. Contracting members are not eligible to hold office, nor shall a member who has been a contracting member until six months have elapsed following notification by the member to his or her Local Union in writing that he or she has ceased contracting.” [Underline and emphasis mine]
Please understand that a Carpenters’ Union member can retire via other Carpenters’ Union pension plans in addition to the United Brotherhood of Carpenters’ Pension Plan. The statement, “A member who retires after being elected may complete the term for which elected unless receiving a pension under the United Brotherhood of Carpenters Pension Plan” means that if a Carpenters’ Union member retires by any means other than the United Brotherhood of Carpenters Pension Plan then that member can complete the term for which elected and that if a Carpenters’ Union member retires by means of the United Brotherhood of Carpenters Pension Plan then that member must relinquish his/her elected or appointed position immediately.
Title 29, Chapter 18 (ERISA), Subchapter I, Subtitle A, § 1002. Definitions, Paragraph (2) (A) states:
“Except as provided in subparagraph (B), the terms “employee pension benefit plan” and “pension plan” mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program—
(i) provides retirement income to employees, or
(ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond,
regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. A distribution from a plan, fund, or program shall not be treated as made in a form other than retirement income or as a distribution prior to termination of covered employment solely because such distribution is made to an employee who has attained age 62 and who is not separated from employment at the time of such distribution.” [Underline and emphasis mine]
The “Frequently Asked Questions about Pension Plans and ERISA” webpage states:
What are defined benefit and defined contribution pension plans?
Generally speaking, there are two types of pension plans: defined benefit plans and defined contribution plans. A defined [pension] benefit plan promises you a specified monthly benefit at retirement. The plan may state this promised benefit as an exact dollar amount, such as $100 per month at retirement. Or, more commonly, it may calculate a benefit through a plan formula that considers such factors as salary and service - for example, 1 percent of your average salary for the last 5 years of employment for every year of service with your employer.
[Underline and emphasis mine]
The April 1, 2004, NYCDCC Pension Fund (aka “On-the-Tools” Pension) Summary Plan Description (SPD), page 31 states:
“Reemployment after Retirement:
If you return to Covered Employment following retirement and before age 70, pension payments may be suspended. This will happen for each month in which you work 40 or more hours in “disqualifying employment.”
“Disqualifying” employment means Covered Employment or any employment or self-employment within the collective bargaining jurisdiction of the Union (including work for the City of New York
You must notify the Trustees in writing if you perform 40 hours or more of “disqualifying employment” in any month. If you fail to notify, and your benefit is paid for a month for which it is later determined you were ineligible because of disqualifying employment, the overpayment will be deducted from future pension payments until the full amount has been repaid to the Plan.
You should also notify the Trustees when your disqualifying employment ends. Benefit payments will resume starting with the month following the last month for which benefits were suspended, with payments starting no later than the third month following the last month of suspension, as long as you gave the Trustees timely notice of the end of your disqualifying employment.
The way the benefit earned during your reemployment is calculated is determined by the rules described in the next section.” [Underline and emphasis mine]
The “Reemployment after Retirement” section of the 2004 NYCDCC Pension Fund SPD shows that a NYCDCC Pension Plan recipient is considered to be retired. If the recipient of pension benefits works 40 or more hours in “disqualifying employment” in a month that recipient must notify the Trustees in writing. If that recipient fails to notify the Trustees in writing, and the benefit is paid for a month for which it is later determined the recipient was ineligible because of “disqualifying employment”, the overpayment will be deducted from future pension payments until the full amount has been repaid to the Plan.
“Disqualifying employment” means “covered employment” or any employment or self-employment within the collective bargaining jurisdiction of the Union (including work for the City of New York Union ” means the Local Unions, the District and Regional Councils, and the United Brotherhood of Carpenters and Joiners of America. If I am mistaken, please provide supporting documentation that explains how I am mistaken and the specific definitions of “collective bargaining jurisdiction” and “Union ” and how derived.
Since a person who is a recipient of pension plan benefits is considered to be retired, it follows that a carpenters’ union member who is a recipient of a carpenters’ union pension plan benefits is therefore considered retired from union carpentry.
To receive rightfully NYCDCC Pension Plan benefits a member cannot work 40 hours or more per month.
If a member receives pension benefits, and is therefore retired, he/she is restricted to work less than 40 hours per month and therefore cannot be depending on the trade for a livelihood.
If a member is retired and/or is not depending on the trade for a livelihood then he/she “cannot hold office or the position of Delegate or a Committee position, or be nominated for office, Delegate or a Committee position”.
If a member is retired and/or is not depending on the trade for a livelihood and he/she holds an office or the position of Delegate or a Committee position, or is nominated for office, Delegate or a Committee position then this appears to be a violation of the UBC Constitution, Section 31D.
Conversely, if a member is working 40 hours or more per month and is depending on the trade then he/she is working in “covered employment” and consequently ineligible for NYCDCC Pension Plan benefits.
If a member is working 40 hours or more per month in “covered employment” and is receiving NYCDCC Pension Plan benefits then this appears to be a violation of the NYCDCC Pension Plan and therefore may be pension fraud.
None of this escapes the fact that receiving pension benefits constitutes retirement and members who retire “after being elected may complete the term for which elected”, which logically follows that a member cannot be nominated again for office or as a Delegate or for a Committee position when taken in context of Section 31D of the 2006 UBC Constitution.
I am well convinced, based upon personal experience and correspondence, that there is a collective deliberate ambiguous interpretation of the UBC Constitution, the NYCDCC Pension Plan and/or ERISA, to (1) circumvent not only the letter of these laws but also their spirit, so that the few, i.e. officers, trustees, business representatives, etc, may benefit even more greatly from the many, i.e. the general membership (aka “rank & file”), and thereby cause the many to possibly suffer by the diminishment of the reserve of the NYCDCC Pension Plan more rapidly and haphazardly than anticipated, thereby endangering the stability, if not the existence, of the NYCDCC Pension Plan and (2) to ignore and evade probable pension fraud.
I am well convinced, based upon personal experience and correspondence, that the collective deliberate ambiguous interpretation of the UBC Constitution, the NYCDCC Pension Plan and ERISA is perpetually facilitate by the UBC, in particular General President McCarron, the NYCDCC officers and employees, in particular, former EST Michael J. Forde, President Peter Thomassen, and Vice President Denis Sheil, and the NYC local union officers and had been perpetrated by the 2008 NYCDCC Election Committee and the 2008 NYCDCC Election Monitor, Steven Bennett.
I am convinced based partly upon the following:
1. UBC General President McCarron stated in his letter to Forde dated February 1, 2008, “the receipt of a pension from the New York City District Council of Carpenters’ Pension Fund would not automatically render a member ineligible to be nominated for an officer position”. He was intentionally evasive and circumvented answering explicitly.
2. Forde, Thomassen, and Sheil just flat-out ignored the pension issue and the NYCDCC Election Committee evaded answering definitively during the 2008 NYCDCC Election cycle.
3. The mindset of many, if not most, of the officers and employees of the NYCDCC and NYC carpenter local unions is that it is acceptable to receive pension plan benefits from the NYCDCC Pension Plan while they are not working “on the tools”. They fail to understand, or refuse to accept, that the UBC Constitution disallows retired members to run for office, be a delegate, or hold a committee position and that those receiving NYCDCC pension plan benefits must work less than 40 hours per month when working within the jurisdiction of the union in its entirety in order to be eligible to receive Carpenters’ Union pension plan benefits. The UBC Constitution, Section 6A, states, “The jurisdiction of the United Brotherhood of Carpenters and Joiners of America shall include all branches of the Carpenter and Joiner trade, the industrial sector, and any kind of work being performed by any members of the United Brotherhood.” [Emphasis mine] This means that they are, whether knowingly or not, probably allowing and committing pension fraud while receiving pension plan benefits while working 40 or more hours per month within the jurisdiction of the UBC.
4. Election Monitor Bennett stated in his December 18, 2008, Decision to my pension issue complaint, “The UBC Constitution and the Rules speak in terms of UBC Pension Plan payments only.” and also states, “That express language is significant.” He then states, “If the drafters of the UBC Constitution and the Rules had meant receipt of any pension to disqualify candidates, they could have stated so. The use of the generic term "retires" later in Section 31(D) of the Constitution was not clearly intended to mean that receipt of any pension payment by a candidate while he or she is employed as an officer will render a candidate "retired" and ineligible for office.” He states that the “UBC Pension Plan” is “express language” but refutes “retired” is not “express language” but rather “generic”. With this “explicit” reasoning, are we then to draw the conclusion that there are supposed to be two “international” pension plans because Section 31B and 31D state “United Brotherhood of Carpenters Pension Plan” while Sections 45G and 59A state “United Brotherhood of Carpenters and Joiners of America Pension Plan”? A lawyer may, but UBC members do not. However, if the “explicit” versus “generic” distinction is meaningful, then the term “retired” is so basic that its definition is clear, unequivocal, and indisputable. If we were to forego the ERISA definition relating directly to pensions (http://www.law.cornell.edu/uscode/29/usc_sec_29_00001002----000-.html), the general English definition given by the Merriam-Webster dictionary is: “retired: 2 : withdrawn from one's position or occupation : having concluded one's working or professional career”. Additionally, “retire: 4 : to withdraw from one's position or occupation : conclude one's working or professional career”. Merriam-Webster Online Dictionary. 2009. http://www.merriam-webster.com (2009 Sep 14). Bennett attempts to make ambiguous the definition of “retired” in the UBC Constitution while he ignores the NYCDCC Pension Plan SPD and ERISA. In any case, in plain English, “retired” means retired and the receipt of pension plan benefits is incontrovertible evidence and acceptance to being retired.
5. Moreover, the disqualifying statement of “a member cannot hold office or the position of Delegate or a Committee position, or be nominated for office, Delegate or a Committee position, if receiving a pension under the United Brotherhood of Carpenters Pension Plan” is almost meaningless due to that NYC local union carpenter members, as well as the vast majority of the members within the jurisdiction of the UBCJA, do not contribute to the UBC Pension Plan. Based upon the 2007 UBCJA Pension Plan IRS Form 5500, there appears to be about 4,600 participants (which would include members and employees), of which less than 1,700 are active participants and the remaining 2,900 receiving or will receive benefits. Based upon the 2008 UBCJA US DOL Form LM-2, there are approximately 511,000 members. Because I am unable to determine at this time how many of the 4,600 UBCJA Pension Plan participants are members, I will default to use all 4,600 as members. 4,600 divided by 511,000 is approximately 0.9%. 2,900 divided by 511,000 is approximately 0.57%. That means that less than 1% of the membership contributes to the UBC Pension Plan and that less than 0.57% are receiving or will receive benefits. Additionally of note is that the UBC Pension Plan’s effective date is later than the two NYCDCC pension plans’ effect dates.
- The New York District Council of Carpenters Pension Plan, 51-0174276, started January 01, 1956.
- The Retirement and Pension Plan for Officers and Employees of the NYDCC and Related Organizations, 51-0167964, started April 01, 1961.
- The United Brotherhood of Carpenters Pension Plan, EIN 52-6075035, started January 01, 1967.
In essence, I am seeking from EBSA affirmation that:
1. the terms “pension plan” and “retirement plan” are interchangeable, i.e. a “pension plan” is a “retirement plan” and a “retirement plan” is a “pension plan”,
2. the receipt of pension plan benefits equates retirement, i.e. one is who is receiving pension plan benefits is retired,
3. those receiving NYCDCC Pension Plan benefits, if working, must be working less than 40 hours per month within the jurisdiction of the UBCJA,
4. all carpenters’ union pension/retirement plans within the UBCJA are the equivalent of the United Brotherhood of Carpenters Pension Plan with respect to eligibility for officer, delegate and/or committee member
5. members who were receiving pension/retirement plan benefits, and therefore retired, were ineligible as candidates in the 2008 NYCDCC officer election,
6. members who were receiving pension/retirement plan benefits, and therefore retired, were ineligible as appointees to the 2008 NYCDCC Election Committee,
7. members who were receiving pension plan/retirement benefits, and therefore retired, were ineligible as officer or delegate candidates in any carpenters’ union election since at least the implementation of the January 1, 2006 UBC Constitution.
8. members who were receiving pension plan/retirement benefits, and therefore retired, were ineligible as appointees in any carpenters’ union committee since at least the implementation of the January 1, 2006 UBC Constitution.
In other words, to clarify what I am asking EBSA:
1. Are the terms “pension plan” and “retirement plan” interchangeable? Yes or no?
2. Does the receipt of pension plan benefits equate retirement? Yes or no?
3. Those receiving NYCDCC Pension Plan benefits, if working, must be working less than 40 hours per month within the jurisdiction of the UBCJA? Yes or no?
4. Are all carpenters’ union pension/retirement plans within the UBCJA the equivalent of the United Brotherhood of Carpenters Pension Plan with respect to eligibility for officer, delegate and/or committee member? Yes or no?
5. Were the members who were receiving pension/retirement plan benefits, and therefore retired, ineligible as candidates in the 2008 NYCDCC officer election? Yes or no?
6. Were the members who were receiving pension/retirement plan benefits, and therefore retired, ineligible as appointees to the 2008 NYCDCC Election Committee? Yes or no?
7. Were the members who were receiving pension plan/retirement benefits, and therefore retired, ineligible as officer or delegate candidates in any carpenters’ union election since at least the implementation of the January 1, 2006 UBC Constitution? Yes or no?
8. Were the members who were receiving pension plan/retirement benefits, and therefore retired, ineligible as appointees in any carpenters’ union committee since at least the implementation of the January 1, 2006 UBC Constitution? Yes or no?
This letter is solely an inquiry. It is not a complaint. It is not a request for any action other than to affirm my statements or to answer each of the questions simply with either “yes” or “no”.
Since this inquiry is time sensitive, please inform me immediately by email or phone after reading this inquiry whether I have sent it to the correct office/ division/ administration within the US DOL. If I have addressed this inquiry to the wrong office/ division/ administration within the US DOL, please inform me as to the correct office/ division/ administration within the US DOL to avoid further delay.
If any one or more of these questions can be answered immediately, please do not wait until all questions are answered before contacting me. Please contact me as soon as possible to inform me of the answers to the questions that are immediately answerable.
If you feel I have not expressed my information and inquiries clearly enough, please do not hesitate to contact me immediately. If there is any misunderstanding as to what I am asking, please do not hesitate to contact me immediately.
I thank you for your time and prompt attention regarding these matters.
Sincerely,
/s/ Daniel J. Franco /s/
Local Union 157, UBC
2009-10-22
Union Carpenters for a Democratic NYCDCC
Dear Fellow Carpenters,
This notice is to inform you that meetings for NYC carpenters’ local union members will commence within the next two weeks to discuss:
- Financial and activities transparency of the NYCDCC, the NYCDCC Benefit Funds, the
- The creation and instituting of NYCDCC et al and affiliated NYC carpenters’ local unions procedural systems to detect, notify, prevent, and remedy incompetence and corruption.
- The possibility of bringing of charges against at least Peter Thomassen, Denis Sheil, Maurice Leary, Scott Danielson, and Edward McWilliams for violations of at least the UBC Constitution, NYCDCC By-Laws, the Collective Bargaining Agreements, and/or the Consent Decree.
- Any other matter of wide importance regarding the NYCDCC et al and the affiliated NYC carpenters’ local unions.
- The nature, schedule and location of future meetings.
Please respond by email as soon as possible to indicate whether you would like to attend. I can then provide you with the location, date and time of the meeting.
In solidarity,
Daniel J. Franco
Local Union 157, UBC
danieljfranco1(at)gmail.com
2009-09-22
Letters to Spencer
Mr. Frank G. Spencer
Eastern District Vice President
UBC Eastern District
14 Kings Highway West
P.O. Box 375
Haddonfield, NJ 08033
Tel: 856-428-1650
Fax: 856-428-1826
RE: Petition for Complete Transparency of NYCDCC Activities and Financings
Dear Mr. Spencer:
I petition the NYCDCC for the complete transparency of all its activities and financings since at least July 1, 1988.
I petition the New York City District Council of Carpenters (NYCDCC), the NYCDCC Pension Fund et al, and the NYCDCC Apprenticeship Journeymen’s Retraining, Education and Industry Fund, and any other fund, group, or organization that is directly operated therewith, that has information pertaining to any activities and/or financings of the aforementioned since at least July 1, 1988, to make available any such information, regardless of the type of media, without reservation or retribution, at no cost to any member or employee affiliated therewith upon request.
Detailed information that is to be made available shall include, but shall not be limited to, the obligations/duties, daily activities, special activities, court activities, lawsuits, elections, compensations (salaries, reimbursements, gifts), picketing, organizing efforts, organizing statistics (companies attempted to be unionized, companies unionized, number employees unionized, etc.) with regard to the NYCDCC Executives, NYCDCC Trustees (both labor and management), Business Managers, Business Agents, Organizers, NYCDCC employees, Shop/Job Stewards, and any other associated NYCDCC representative or position. Also to be made available are the detailed accountings and explanations of all transportation/travel, lodging, and food expenses, caterings, promotional events and items, golf “outings”, donations, lawyer fees, vehicle acquisitions (purchase, lease, etc.), vehicular maintenance and repair, vehicular fueling, and parking expenses.
In particular, to be made available are the NYCDCC accountings of the December 1988 1% Assessment, the accountings of the June 2000 $0.30 Assessment, and the accountings of the January 2007 $0.30 Assessment, any other information as to how the Assessments and all other NYCDCC monies have been used, are being used, and as to their intended use, with all such information to be updated at least monthly to be made available without reservation or retribution, at no cost to any member or employee affiliated therewith upon request.
Sincerely,
/s/ Daniel J. Franco /s/
Local Union 157, UBC
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Receipt of the above emailed letter was acknowledged Tuesday 2009 September 22. The above letter is a slightly revised version of the following letter sent via emial Wednesday 2009 September 9.
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Mr. Frank G. Spencer
Eastern District Vice President
New York District Council of Carpenters
395 Hudson Street
New York, NY 10014
Tel: 212-366-7500
Fax: 212-675-3118
RE: Petition for Complete Transparency of NYCDCC Activities and Financings
Dear Mr. Spencer:
I petition the NYCDCC for the complete transparency of all its activities and financings since at least July 1, 1988.
I petition the New York City District Council of Carpenters (NYCDCC), the NYCDCC Pension Fund et al, and the NYCDCC Apprenticeship Journeymen’s Retraining, Education and Industry Fund, and any other fund, group, or organization that is directly operated therewith, that has information pertaining to any activities and/or financings of the aforementioned since at least July 1, 1988, to make available any such information, regardless of the type of media, without reservation or retribution, at no cost to any member or employee affiliated therewith upon request.
Detailed information that is to be made available shall include, but shall not be limited to, the obligations/duties, daily activities, special activities, court activities, lawsuits, elections, compensations (salaries, reimbursements, gifts), picketing, organizing efforts, organizing statistics (companies attempted to be unionized, companies unionized, number employees unionized, etc.) with regard to the NYCDCC Executives, NYCDCC Trustees (both labor and management), Business Managers, Business Agents, Organizers, NYCDCC employees, Shop/Job Stewards, and any other associated NYCDCC representative or position. Also to be made available are the detailed accountings and explanations of all transportation/travel, lodging, and food expenses caterings, promotional events and items, golf “outings”, donations, lawyer fees, automobile acquisitions (purchase, lease, etc.), maintenance, fueling, and parking expenses.
In particular, to be made available are the NYCDCC accountings of the December 1988 1% Assessment, the accountings of the June 2000 $0.30 Assessment, and the accountings of the January 2007 $0.30 Assessment, any other information as to how the Assessments and all other NYCDCC monies have been used, are being used, and as to their intended use, with all such information to be updated at least monthly to be made available without reservation or retribution, at no cost to any member or employee affiliated therewith upon request.
Sincerely,
/s/ Daniel J. Franco /s/
Local Union 157, UBC
2009-09-16
Retirement, Pension Benefits, and Union Carpenter Officers and Employees
September 9, 2009
Mr. John Lund, Deputy Assistant Secretary
Office of the Deputy Assistant Secretary
Tel: (202) 693-0122
U.S. Department of Labor
Employment Standards Administration
Office of Labor-Management Standards
200 Constitution Avenue, NW, Room N-1519
Washington, DC 20210
General Tel: (202) 693-0125
Fax: (202) 693-1344
LMRDA assistance: (202) 693-0123
olms-public@dol.gov
http://www.dol.gov/esa/olms/
RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
Dear Mr. Lund:
On November 8, 2008, I began to protest to the New York City District Council of Carpenters (NYCDCC) Election Committee, and thereafter to the Election Monitor Steven Bennett and the UBC General President Douglas McCarron, that the incumbents Executive Secretary-Treasurer (EST) Michael J. Forde, President Peter Thomassen and Vice President Denis Sheil whom are receiving carpenters’ union pension plan benefits, and therefore are retired, were ineligible as candidates in the NYCDCC 2008 Election. Additionally, several other local union officers and NYCDCC employees are receiving pension plan benefits. Furthermore, since they and I are members of the same union I, as do many other union carpenters, insist that all carpenters’ union pension plans within the UBC are the equivalent of the United Brotherhood of Carpenters Pension Plan (aka International Plan) with respect to eligibility for office.
The 2006 United Brotherhood of Carpenters and Joiners of America (UBC) Constitution, Section 31D, at pg 33-34, states:
A member cannot hold office or the position of Delegate or a Committee position, or be nominated for office, Delegate or a Committee position, if receiving a pension under the United Brotherhood of Carpenters Pension Plan, or unless present at the time of nomination, except that the member is in the anteroom on authorized business or out on official business, or prevented by accident, sickness, or other substantial reason accepted by the Local Union or Council from being present; nor shall the member be eligible unless working for a livelihood in a classification within the trade autonomy of the United Brotherhood as defined in Section 7 or in employment which qualifies him or her for membership, or is depending on the trade for a livelihood, or is employed by the organization as a full-time officer or representative; provided, further, that members who are life members, apprentices, trainees or probationary employees shall not be eligible. A member must have been twelve (12) consecutive months a member in good standing immediately prior to nomination in the Local Union and a member of the United Brotherhood of Carpenters and Joiners of America for two consecutive years immediately prior to nomination, unless the Local Union has not been in existence the time herein required, and must remain a member in good standing at all times in order to remain in the position to which he is elected or appointed. A member who retires after being elected may complete the term for which elected unless receiving a pension under the United Brotherhood of Carpenters Pension Plan. Contracting members are not eligible to hold office, nor shall a member who has been a contracting member until six months have elapsed following notification by the member to his or her Local Union in writing that he or she has ceased contracting.” [Underline and emphasis mine]
[http://franco1.info/UBCJA/UBC_Con_2006.pdf]
Title 29, Chapter 18 (ERISA), Subchapter I, Subtitle A, § 1002. Definitions, Paragraph (2) (A) states:
Except as provided in subparagraph (B), the terms “employee pension benefit plan” and “pension plan” mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program—
(i) provides retirement income to employees, or
(ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond,
regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. A distribution from a plan, fund, or program shall not be treated as made in a form other than retirement income or as a distribution prior to termination of covered employment solely because such distribution is made to an employee who has attained age 62 and who is not separated from employment at the time of such distribution. [Underline and emphasis mine]
[http://www.law.cornell.edu/uscode/29/usc_sec_29_00001002----000-.htm]
The April 1, 2004, NYCDCC Pension Fund (aka “On-the-Tools” Pension) Summary Plan Description (SPD) at page 31 states:
Reemployment after Retirement:
If you return to Covered Employment following retirement and before age 70, pension payments may be suspended. This will happen for each month in which you work 40 or more hours in “disqualifying employment.”
“Disqualifying” employment means Covered Employment or any employment or self-employment within the collective bargaining jurisdiction of the Union (including work for the City of New York).
You must notify the Trustees in writing if you perform 40 hours or more of “disqualifying employment” in any month. If you fail to notify, and your benefit is paid for a month for which it is later determined you were ineligible because of disqualifying employment, the overpayment will be deducted from future pension payments until the full amount has been repaid to the Plan.
You should also notify the Trustees when your disqualifying employment ends. Benefit payments will resume starting with the month following the last month for which benefits were suspended, with payments starting no later than the third month following the last month of suspension, as long as you gave the Trustees timely notice of the end of your disqualifying employment.
The way the benefit earned during your reemployment is calculated is determined by the rules described in the next section. [Underline and emphasis mine]
[http://www.nycdistrictcouncil.com/PensionSPD.pdf, page 31]
The “Reemployment after Retirement” section of the 2004 NYCDCC Pension Fund SPD shows that a NYCDCC Pension Plan recipient is considered to be retired. If the recipient of pension benefits works 40 or more hours in “disqualifying employment” in a month that recipient must notify the Trustees in writing. If that recipient fails to notify the Trustees in writing, and the benefit is paid for a month for which it is later determined the recipient was ineligible because of “disqualifying employment”, the overpayment will be deducted from future pension payments until the full amount has been repaid to the Plan.
“Disqualifying employment” means “covered employment” or any employment or self-employment within the collective bargaining jurisdiction of the Union (including work for the City of New York). I am quite certain that “collective bargaining jurisdiction” means within, affiliated to, or directly related to the carpentry trade and that “Union” means the Local Unions, the District and Regional Councils, and the United Brotherhood of Carpenters and Joiners of America. If I am mistaken, please provide supporting documentation that explains how I am mistaken and the specific definitions of “collective bargaining jurisdiction” and “Union” and how derived.
Since a person who is a recipient of pension plan benefits is considered to be retired, it follows that a carpenters’ union member who is a recipient of a carpenters’ union pension plan benefits is therefore considered retired from union carpentry.
To receive rightfully NYCDCC Pension Plan benefits a member cannot work 40 hours or more per month.
If a member receives pension benefits, is therefore retired, he/she is restricted to work less than 40 hours per month and therefore cannot be depending on the trade for a livelihood.
If a member is retired and/or is not depending on the trade for a livelihood then he/she “cannot hold office or the position of Delegate or a Committee position, or be nominated for office, Delegate or a Committee position”.
If a member is retired and/or is not depending on the trade for a livelihood and he/she holds an office or the position of Delegate or a Committee position, or is nominated for office, Delegate or a Committee position then this appears to be a violation of the UBC Constitution, Section 31D.
Conversely, if a member is working 40 hours or more per month and is depending on the trade then he/she is working in “covered employment” and consequently ineligible for NYCDCC Pension Plan benefits.
If a member is working 40 hours or more per month in “covered employment” and is receiving NYCDCC Pension Plan benefits then this appears to be a violation of the NYCDCC Pension Plan and therefore may be pension fraud.
None of this escapes the fact that receiving pension benefits constitutes retirement and members who retire “after being elected may complete the term for which elected”, which logically follows that a member cannot be nominated again for office or as a Delegate or for a Committee position when taken in context of Section 31D of the 2006 UBC Constitution.
In essence, I am seeking rulings that concur that:
1. the receipt of pension plan benefits equates retirement,
2. those who are receiving pension plan benefits or any other type of retirement benefit from any source directly associated with or to carpenter local unions, affiliated councils, or the UBCJA cannot hold office or the position of Delegate or a committee position, or be nominated for office, Delegate or a committee position,
3. all carpenters’ union pension/retirement plans within the UBCJA are the equivalent of the United Brotherhood of Carpenters Pension Plan with respect to eligibility for office,
4. those receiving pension plan/retirement benefits, and therefore retired, to have been ineligible as a candidate in the 2008 NYCDCC election, and
5. those receiving pension plan/retirement benefits, and therefore retired, to have been ineligible as a candidate in any election, delegates, or committee member, since at least the implementation of the January 1, 2006 UBC Constitution.
Sincerely,
/s/ Daniel J. Franco /s/
Local Union 157, UBC
cc: Denise Boucher, Director
U.S. Department of Labor
Employment Standards Administration
Office of Labor-Management Standards
Office of Policy, Reports and Disclosure
Frances Perkins Bldg
200 Constitution Ave NW, Room N-5613
Washington, DC 20210
Tel: (202) 693-1185
boucher.denise(at)dol.gov
cc: Stephen J. Willertz, Director
U.S. Department of Labor
Employment Standards Administration
Office of Labor-Management Standards
Office of Enforcement and International Union Audits
200 Constitution Ave NW
Washington, DC 20210
Tel: (202) 693-1182
willertz.stephen(at)dol.gov
cc: Ralph Gerchak, District Director
U.S. Department of Labor, OLMS
New York District Office
201 Varick St., Room 878
New York, NY 10014
Tel: (646) 264-3190
gerchak.ralph(at)dol.gov
Mr. John Lund, Deputy Assistant Secretary
Office of the Deputy Assistant Secretary
Tel: (202) 693-0122
U.S. Department of Labor
Employment Standards Administration
Office of Labor-Management Standards
200 Constitution Avenue, NW, Room N-1519
Washington, DC 20210
General Tel: (202) 693-0125
Fax: (202) 693-1344
LMRDA assistance: (202) 693-0123
olms-public@dol.gov
http://www.dol.gov/esa/olms/
RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
Dear Mr. Lund:
On November 8, 2008, I began to protest to the New York City District Council of Carpenters (NYCDCC) Election Committee, and thereafter to the Election Monitor Steven Bennett and the UBC General President Douglas McCarron, that the incumbents Executive Secretary-Treasurer (EST) Michael J. Forde, President Peter Thomassen and Vice President Denis Sheil whom are receiving carpenters’ union pension plan benefits, and therefore are retired, were ineligible as candidates in the NYCDCC 2008 Election. Additionally, several other local union officers and NYCDCC employees are receiving pension plan benefits. Furthermore, since they and I are members of the same union I, as do many other union carpenters, insist that all carpenters’ union pension plans within the UBC are the equivalent of the United Brotherhood of Carpenters Pension Plan (aka International Plan) with respect to eligibility for office.
The 2006 United Brotherhood of Carpenters and Joiners of America (UBC) Constitution, Section 31D, at pg 33-34, states:
A member cannot hold office or the position of Delegate or a Committee position, or be nominated for office, Delegate or a Committee position, if receiving a pension under the United Brotherhood of Carpenters Pension Plan, or unless present at the time of nomination, except that the member is in the anteroom on authorized business or out on official business, or prevented by accident, sickness, or other substantial reason accepted by the Local Union or Council from being present; nor shall the member be eligible unless working for a livelihood in a classification within the trade autonomy of the United Brotherhood as defined in Section 7 or in employment which qualifies him or her for membership, or is depending on the trade for a livelihood, or is employed by the organization as a full-time officer or representative; provided, further, that members who are life members, apprentices, trainees or probationary employees shall not be eligible. A member must have been twelve (12) consecutive months a member in good standing immediately prior to nomination in the Local Union and a member of the United Brotherhood of Carpenters and Joiners of America for two consecutive years immediately prior to nomination, unless the Local Union has not been in existence the time herein required, and must remain a member in good standing at all times in order to remain in the position to which he is elected or appointed. A member who retires after being elected may complete the term for which elected unless receiving a pension under the United Brotherhood of Carpenters Pension Plan. Contracting members are not eligible to hold office, nor shall a member who has been a contracting member until six months have elapsed following notification by the member to his or her Local Union in writing that he or she has ceased contracting.” [Underline and emphasis mine]
[http://franco1.info/UBCJA/UBC_Con_2006.pdf]
Title 29, Chapter 18 (ERISA), Subchapter I, Subtitle A, § 1002. Definitions, Paragraph (2) (A) states:
Except as provided in subparagraph (B), the terms “employee pension benefit plan” and “pension plan” mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program—
(i) provides retirement income to employees, or
(ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond,
regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. A distribution from a plan, fund, or program shall not be treated as made in a form other than retirement income or as a distribution prior to termination of covered employment solely because such distribution is made to an employee who has attained age 62 and who is not separated from employment at the time of such distribution. [Underline and emphasis mine]
[http://www.law.cornell.edu/uscode/29/usc_sec_29_00001002----000-.htm]
The April 1, 2004, NYCDCC Pension Fund (aka “On-the-Tools” Pension) Summary Plan Description (SPD) at page 31 states:
Reemployment after Retirement:
If you return to Covered Employment following retirement and before age 70, pension payments may be suspended. This will happen for each month in which you work 40 or more hours in “disqualifying employment.”
“Disqualifying” employment means Covered Employment or any employment or self-employment within the collective bargaining jurisdiction of the Union (including work for the City of New York).
You must notify the Trustees in writing if you perform 40 hours or more of “disqualifying employment” in any month. If you fail to notify, and your benefit is paid for a month for which it is later determined you were ineligible because of disqualifying employment, the overpayment will be deducted from future pension payments until the full amount has been repaid to the Plan.
You should also notify the Trustees when your disqualifying employment ends. Benefit payments will resume starting with the month following the last month for which benefits were suspended, with payments starting no later than the third month following the last month of suspension, as long as you gave the Trustees timely notice of the end of your disqualifying employment.
The way the benefit earned during your reemployment is calculated is determined by the rules described in the next section. [Underline and emphasis mine]
[http://www.nycdistrictcouncil.com/PensionSPD.pdf, page 31]
The “Reemployment after Retirement” section of the 2004 NYCDCC Pension Fund SPD shows that a NYCDCC Pension Plan recipient is considered to be retired. If the recipient of pension benefits works 40 or more hours in “disqualifying employment” in a month that recipient must notify the Trustees in writing. If that recipient fails to notify the Trustees in writing, and the benefit is paid for a month for which it is later determined the recipient was ineligible because of “disqualifying employment”, the overpayment will be deducted from future pension payments until the full amount has been repaid to the Plan.
“Disqualifying employment” means “covered employment” or any employment or self-employment within the collective bargaining jurisdiction of the Union (including work for the City of New York). I am quite certain that “collective bargaining jurisdiction” means within, affiliated to, or directly related to the carpentry trade and that “Union” means the Local Unions, the District and Regional Councils, and the United Brotherhood of Carpenters and Joiners of America. If I am mistaken, please provide supporting documentation that explains how I am mistaken and the specific definitions of “collective bargaining jurisdiction” and “Union” and how derived.
Since a person who is a recipient of pension plan benefits is considered to be retired, it follows that a carpenters’ union member who is a recipient of a carpenters’ union pension plan benefits is therefore considered retired from union carpentry.
To receive rightfully NYCDCC Pension Plan benefits a member cannot work 40 hours or more per month.
If a member receives pension benefits, is therefore retired, he/she is restricted to work less than 40 hours per month and therefore cannot be depending on the trade for a livelihood.
If a member is retired and/or is not depending on the trade for a livelihood then he/she “cannot hold office or the position of Delegate or a Committee position, or be nominated for office, Delegate or a Committee position”.
If a member is retired and/or is not depending on the trade for a livelihood and he/she holds an office or the position of Delegate or a Committee position, or is nominated for office, Delegate or a Committee position then this appears to be a violation of the UBC Constitution, Section 31D.
Conversely, if a member is working 40 hours or more per month and is depending on the trade then he/she is working in “covered employment” and consequently ineligible for NYCDCC Pension Plan benefits.
If a member is working 40 hours or more per month in “covered employment” and is receiving NYCDCC Pension Plan benefits then this appears to be a violation of the NYCDCC Pension Plan and therefore may be pension fraud.
None of this escapes the fact that receiving pension benefits constitutes retirement and members who retire “after being elected may complete the term for which elected”, which logically follows that a member cannot be nominated again for office or as a Delegate or for a Committee position when taken in context of Section 31D of the 2006 UBC Constitution.
In essence, I am seeking rulings that concur that:
1. the receipt of pension plan benefits equates retirement,
2. those who are receiving pension plan benefits or any other type of retirement benefit from any source directly associated with or to carpenter local unions, affiliated councils, or the UBCJA cannot hold office or the position of Delegate or a committee position, or be nominated for office, Delegate or a committee position,
3. all carpenters’ union pension/retirement plans within the UBCJA are the equivalent of the United Brotherhood of Carpenters Pension Plan with respect to eligibility for office,
4. those receiving pension plan/retirement benefits, and therefore retired, to have been ineligible as a candidate in the 2008 NYCDCC election, and
5. those receiving pension plan/retirement benefits, and therefore retired, to have been ineligible as a candidate in any election, delegates, or committee member, since at least the implementation of the January 1, 2006 UBC Constitution.
Sincerely,
/s/ Daniel J. Franco /s/
Local Union 157, UBC
cc: Denise Boucher, Director
U.S. Department of Labor
Employment Standards Administration
Office of Labor-Management Standards
Office of Policy, Reports and Disclosure
Frances Perkins Bldg
200 Constitution Ave NW, Room N-5613
Washington, DC 20210
Tel: (202) 693-1185
boucher.denise(at)dol.gov
cc: Stephen J. Willertz, Director
U.S. Department of Labor
Employment Standards Administration
Office of Labor-Management Standards
Office of Enforcement and International Union Audits
200 Constitution Ave NW
Washington, DC 20210
Tel: (202) 693-1182
willertz.stephen(at)dol.gov
cc: Ralph Gerchak, District Director
U.S. Department of Labor, OLMS
New York District Office
201 Varick St., Room 878
New York, NY 10014
Tel: (646) 264-3190
gerchak.ralph(at)dol.gov
Franco - No Longer Contracting
I sent the following letter, dated November 25, 2008, to Mitch Sonntag, Recording Secretary of Local Union 157, which he read aloud to the members at the December 2008 local union meeting. Thank you Mitch.
Mitch Sonntag
Recording Secretary
Local Union 157, UBC
157 East 25th Street
New York, NY 10010
Phone: 212-685-0567/0568/0581
Fax: 212-725-6793
http://local157.com/
RE: Ceased Contracting
Dear Mitch Sonntag:
This letter is to give you notice that I am not currently contracting and that I ceased contracting in the spring of 2007.
Sincerely,
Daniel J. Franco
Local Union 157, UBC
---
Originally incorporated 2003-07-11, Franco Woodwork, Inc. (finally) officially dissolved 2009-05-21.
NYCDCC 2008 Election Protests
Protests and Responses to the eligibility of Forde, Thomassen and Sheil as candidates for the NYCDCC 2008 Election:
2009-09-16 So far, no response from McCarron has been received.
2009-01-09 Franco Letter to McCarron
2008-12-29 Election Monitor Decision to Franco
2008-12-18 Franco Letter to Election Monitor
2008-12-16 NYCDCC Election Committee response to Franco
2008-12-05 Franco Letter to NYCDCC Election Committee
2008-11-14 NYCDCC Election Committee response to Franco
2008-11-03 Franco Letter to the NYCDCC Election Committee
2008-02-01 McCarron response to Forde
2008-01-25 Forde Letter to McCarron
After you read the letters, let us know what you think.
(Originally posted at http://fairdeal2008.blogspot.com/, 2008-12-19)
2009-09-16 So far, no response from McCarron has been received.
2009-01-09 Franco Letter to McCarron
2008-12-29 Election Monitor Decision to Franco
2008-12-18 Franco Letter to Election Monitor
2008-12-16 NYCDCC Election Committee response to Franco
2008-12-05 Franco Letter to NYCDCC Election Committee
2008-11-14 NYCDCC Election Committee response to Franco
2008-11-03 Franco Letter to the NYCDCC Election Committee
2008-02-01 McCarron response to Forde
2008-01-25 Forde Letter to McCarron
After you read the letters, let us know what you think.
(Originally posted at http://fairdeal2008.blogspot.com/, 2008-12-19)
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