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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. Department of Labor
Employee Benefits Security Administration
New York Regional Office
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/
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). 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, 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

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