From: Daniel J. Franco
Date: Wed, Nov 25, 2009 at 1:56 PM
Subject: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members
To: John Lund
Cc: "Cautero, Gregg L.", boucher.denise[at]dol.gov, willertz.stephen[at]dol.gov, gerchak.ralph[at]dol.gov
Dear Mr. Lund et al:
Attached to this email is the letter I sent to the United Brotherhood of Carpenters and Joiners of America (UBCJA) General President (GP) Douglas J. McCarron (2009-10-26_Pensions,McCarron-Franco JPG's ) requesting to send to me "another" copy of his response to my letter, dated January 9, 2009. I promise/swear to you that I did not receive and had not known of McCarron's response, dated March 3, 2009, until I received it October 28, 2009. My following inquiry letter, 2009-11-25_Election,Franco-USDOL,OLMS,Lund.com, to you is being submitted within the supposed 30-day requirement of having received a response. It was my intention to submit my current inquiry letter sooner. However, I had been waiting for a response from EBSA relating to the pension/retirement issues, which I submitted to Director Kay on October 22, 34 days ago.
The attachments to this email in date/read order are:
2009-01-09_Pensions,Franco-McCarron.pdf
2009-10-20 Pension,Franco-McCarron.doc
2009-10-20 Pensions,Franco-USDOL,EBSA,Kay.doc
2009-10-26_Pensions,McCarron-Franco,P0.jpg
2009-10-26_Pensions,McCarron-Franco,P1.jpg
2009-10-26_Pensions,McCarron-Franco,P2.jpg
2009-11-25_Election,Franco-USDOL,OLMS,Lund.doc
Sincerely,
Daniel J. Franco
P.S.: I regret that that my document scanner became defunct a few months ago, hence the jpeg photographs rather than scanned pdf's of McCarron's letters. Additionally, for some reason my Adobe Acrobat is currently incapable of converting MS Word files to pdf's.
---
2009-11-25_Election,Franco-USDOL,OLMS,Lund.doc:
2009 November 25
XXXX XXXXXX
Bronx, NY XXXX-XXXX
Mobile: XXX-XXX-XXXX
danieljfranco1[at]gmail.com
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[at]dol.gov
lund.john[at]dol.gov
RE: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members
Dear Mr. Lund:
I am seeking from OLMS affirmation that:
1. those receiving NYDCC Pension Plan benefits cannot work more than 39-1/2 hours per month within the jurisdiction of the union, which therefore they cannot be working for a livelihood within the trade autonomy of the UBCJA, and therefore are ineligible to be an officer, delegate, or committee member.
2. those receiving NYDCC Pension Plan benefits are retired from the jurisdiction of the UBCJA.
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 2008 NYCDCC Election. 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 or appointment.
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, NYDCC 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 NYDCC Pension Fund SPD shows that a NYDCC 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 NYDCC 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 NYDCC Pension Plan benefits.
If a member is working 40 hours or more per month in “covered employment” and is receiving NYDCC Pension Plan benefits then this appears to be a violation of the NYDCC 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 conclusion, is OLMS also in agreement that:
those receiving NYDCC Pension Plan benefits cannot work more than 39-1/2 hours per month within the jurisdiction of the union, which therefore they cannot be working for a livelihood within the trade autonomy of the UBCJA, and therefore are ineligible to be an officer, delegate, or committee member? Yes or No?
those receiving NYDCC Pension Plan benefits are retired from the jurisdiction of the UBCJA? 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 one 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
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
cc: Cautero, Gregg L.
U.S. Department of Labor, OLMS
New York District Office
201 Varick St., Room 878
New York, NY 10014
Tel: (646) 264-3149
ATTACHMENTS:
2009-10-26_Pensions,McCarron-Franco,P0s.JPG
2009-10-26_Pensions,McCarron-Franco,P1s.JPG
2009-10-26_Pensions,McCarron-Franco,P2s.JPG
2009-01-09_Pensions,Franco-McCarron.pdf
2009-10-20 Pension,Franco-McCarron.doc
2009-10-20 Pension,Franco-USDOL,EBSA,Kay.doc
2009-11-25_Election,Franco-USDOL,OLMS,Lund.doc
Date: Wed, Dec 17, 2009 at ?:?? PM
[Received call from US DOL, OLMS, Howard Naiman, Senior Investigator]
From: Naiman, Howard S - OLMS
Date: Thu, Dec 17, 2009 at 1:19 PM
Subject: Carpenters District Council Election
To: danieljfranco1[at]gmail.com
Dear Mr. Franco,
Pursuant to our telephone conversation today, please fill out the answers to the attached questions in advance our interview tomorrow. Thanks.
Sincerely,
Howard Naiman, Senior Investigator
Office of Labor-Management Standards
U.S. Department of Labor
<>
ATTACHMENTS:
General Questions.doc
From: Daniel J. Franco
Date: Mon, Dec 21, 2009 at 3:42 AM
Subject: NYCDCC 2008 Election
To: "Naiman, Howard S - OLMS"
Dear Mr. Naiman:
Regarding the issue of the NYCDCC Pension Plan and "collective bargaining jurisdiction", please see page 3 of the NYCDCC Pension Application at https://www.nyccbf.com/nd/pdfs/pension_app1.pdf where it states, "The Pension Plan prohibits Pensioners from working in any calendar month for 40 hours or more in any Covered Employment, including employment with the City of New York, any employment or self-employment which is within the jurisdiction of the union regardless whether a collective bargaining agreement actually exists." [Emphasis mine.]
Additionally, see the top of the attached file 2008-05-20_NYCDCC_Delegates_2008_Election,p2.JPG where it states, "Apprentices, members collecting a pension and life members (50 years or more of membership) are not eligible to run for office." [Emphasis mine.] While this letter addresses only Delegates to the NYCDCC, I have not read elsewhere that there is one set of eligibility rules for Delegates and another for Officers or Committee Members, most especially with regard to retirement and pensions. I do not know as of yet the specific source of this disqualifying statement, but I can only figure that it had been based upon the 2006 UBC Constitution, Section 31D.
Furthermore, here are links to some of the documents and information I had provided to you Friday, December 18, 2009: Websites/Blogspots:
If you would like the related email correspondences or any other information, do not hesitate to ask.
Sincerely,
Daniel J. Franco
ATTACHMENTS:
2008-05-20_NYCDCC_Delegates_2008_Election,p2.JPG
2008-05-20_NYCDCC_Delegates_2008_Election,p1.JPG
From: Daniel J. Franco
Date: Wed, Dec 30, 2009 at 10:34 AM
Subject: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members
To: Naiman.Howard[at]dol.gov
Dear Mr. Naiman:
It has been 35 days since I submitted my "2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members" inquiry to Deputy Assistant Secretary Lund and 12 days since I met with you. I am wondering how the your investigation into my inquiry has progressed and whether you can provide me with an update?
Additionally, if you need any additional info, please do not hesitate to ask.
Daniel J. Franco
Mobile: XXX-XXX-XXXX
Related Documents:
2009-12-04_Election,Franco-USDOL,OLMS,Cautero.doc – Attached
2009-11-25_Election,Franco-USDOL,OLMS,Lund.doc – Attached
2009-10-26_Pension,McCarron-Franco,P2s.JPG – Attached
2009-10-26_Pension,McCarron-Franco,P1s.JPG – Attached
2009-10-26_Pension,McCarron-Franco,P0s.JPG – Attached
2009-10-20_Pension,Franco-USDOL,EBSA,Kay.doc – Attached
2009-10-20_Pension,Franco-McCarron.doc – Attached
2009-09-09_Pension,Franco-USDOL,Shapiro,Rev1.doc – Attached
2009-09-09_Pension,Franco-USDOL,Lund,Rev1.doc – Attached
2009-07-22_USDOL-Davenport,p3 – Attached
2009-07-22_USDOL-Davenport,p2 – Attached
2009-07-22_USDOL-Davenport,p1 – Attached
ATTACHMENTS:
2008-05-20_NYCDCC_Delegates_2008_Election,p1.JPG
2008-05-20_NYCDCC_Delegates_2008_Election,p2.JPG
2009-07-22_USDOL-Davenport,p1.jpg
2009-07-22_USDOL-Davenport,p2.jpg
2009-07-22_USDOL-Davenport,p3.jpg
2009-10-26_Pension,McCarron-Franco,P0s.JPG
2009-10-26_Pension,McCarron-Franco,P1s.JPG
2009-10-26_Pension,McCarron-Franco,P2s.JPG
2008-11-03_Pensions,Franco-NYCDCC_EC.pdf
2009-09-09_Pension,Franco-USDOL,Lund,Rev1.doc
2009-09-09_Pension,Franco-USDOL,Shapiro,Rev1.doc
2009-10-20_Pension,Franco-McCarron.doc
2009-10-20_Pension,Franco-USDOL,EBSA,Kay.doc
2009-11-25_Election,Franco-USDOL,OLMS,Lund.doc
2009-12-04_Election,Franco-USDOL,OLMS,Cautero.doc
From: Daniel J. Franco
Date: Wed, Jan 6, 2010 at 10:26 AM
Subject: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members
To: "Naiman, Howard S - OLMS"
Dear Mr. Naiman:
It has been 42 days since I submitted my "2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members" inquiry to Deputy Assistant Secretary Lund, Wednesday, November 25, 2009, and 19 days since I met with you on Friday, December 18, 2009. I am wondering how the US DOL's investigation into my inquiry has progressed and whether you can provide me with an update?
Additionally, did you receive my last email, dated December 30, 2009, with the attached documents?
Again, if you need any additional info, please do not hesitate to ask.
Daniel J. Franco
Mobile: XXX-XXX-XXXX
From: Daniel J. Franco
Date: Mon, Jan 11, 2010 at 7:31 PM
Subject: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members
To: "Naiman, Howard S - OLMS"
Dear Mr. Naiman:
It has been 47 days since I submitted my "2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members" inquiry to Deputy Assistant Secretary Lund, Wednesday, November 25, 2009, and 24 days since I met with you on Friday, December 18, 2009.
I am wondering how the US DOL's investigation into my inquiry has progressed and whether you can provide me with an update?
Additionally, did you receive my previous emails, dated December 30, 2009, with the attached documents, and January 6, 2010?
Again, if you need any additional info, please do not hesitate to ask.
Daniel J. Franco
Mobile: XXX-XXX-XXXX
From: Naiman, Howard S - OLMS
Date: Tue, Jan 12, 2010 at 8:16 AM
Subject: RE: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members
To: "Daniel J. Franco"
Dear Mr. Franco,
I did receive your previous emails and I appreciate the attachments that you sent. I have no updates for you at this time.
Sincerely,
Howard Naiman, Sr. Inv.
U.S. Dept. of Labor, OLMS
From: Daniel J. Franco
Date: Tue, Jan 12, 2010 at 9:34 AM
Subject: Re: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members
To: "Naiman, Howard S - OLMS"
Dear Mr. Naiman,
Thank you for your response and your appreciation for the documents. However, do you know with what US DOL office my inquiry and the investigation is currently being reviewed?
Additionally, are you aware that Ms. Fasano, EBSA, had informed me by phone that my EBSA inquiry/investigation had been sent to OLMS? I would appreciate whether you could confirm that this has occurred. If this did occur, why did it occur?
Furthermore, are you aware that I had asked Ms. Fasano Jan 5, 2010 and then again today to answer by email the following questions, some of which she answered informally via a phone call prior to my last with her?
1. Does the US DOL concur that receipt of pension plan benefits is a form of retirement? Yes or no?
(In the Jan 6, 2010 email this question was inaccurately asked as: 1. Does the US DOL concur that those receiving pension plan benefits is a form of retirement?)
2. Does the US DOL concur that pension plans provide retirement income and shall not be treated as made in a form other than retirement income(1*)? Yes or no?
3. Does the US DOL concur that those receiving NYDCC Pension Plan benefits are retired from the jurisdiction of the UBCJA? Yes or no?
3. Does the US DOL concur that those receiving any Pension Plan related to, affiliated with, or within the UBCJA are retired from the jurisdiction of the UBCJA? Yes or no?
4. Does the US DOL concur that in order for persons to legitimately receive NYDCC Pension Plan benefits monthly those persons must work less than 40 hours per month within the jurisdiction of the UBCJA? Yes or no?
(In the Jan 6, 2010 email this question was less accurately asked as: 4. Does the US DOL concur that in order for persons to legitimately receive NYDCC Pension Plan benefits monthly those persons cannot work more than 39-1/2 hours per month within the jurisdiction of the UBCJA?) Yes or no?
5. Does the US DOL concur that those who work less than 40 hours per month within the jurisdiction trade autonomy of the UBCJA cannot be working for a livelihood within the trade autonomy of the UBCJA? Yes or no?
6. Does the US DOL concur that those receiving NYDCC Pension Plan benefits monthly that are working 40 or more hours per month within the jurisdiction of the UBCJA are committing pension fraud? Yes or no?
To be frank, so far in my experience, you are the only US DOL employee with which I have conversed and have any confidence in their experience and ability to properly understand and fully resolve my inquires. I would truly appreciate your help if you could facilitate the answers to these questions or at least inquire the US DOL, most notably EBSA, to explain why they could not or are not willing to answer the questions in my EBSA inquiry and those above. So far, I do not feel EBSA has been timely or forthcoming with answers to my inquiry. It has been 82 days since I submitted my "Retirement, Pension Benefits, and Union Carpenter Officers and Employees" inquiry to Director Kay on Oct 22, 2009 and 61 days since I forwarded my inquiry to Ms. Fasano on Nov 12, 2009. As of yet, I have not received any answers in print regarding my inquiry with EBSA and I sense that I am unlikely to receive direct and relevant answers from EBSA, if I am to receive any answers at all. After all, their decision was to pass my inquiry to OLMS, which where I started on September 9, 2009. Basically, I have asked "yes or no" questions and am having a very hard time understanding and accepting the inability and/or unwillingness of the US DOL to answer such questions. In contrast, have I made my inquiries too difficult by providing too much information and requesting such succinct answers?
Nonetheless, I thank you for your time and cooperation.
Sincerely,
Daniel J. Franco
Mobile: XXX-XXX-XXXX
From: Naiman, Howard S - OLMS
Date: Tue, Jan 12, 2010 at 10:47 AM
Subject: RE: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members
To: "Daniel J. Franco"
Dear Mr. Franco,
I have not seen anything from EBSA. I will inquire about it. As to your questions, we are not in any position to answer them in the abstract as they are posed. We can only deal with specific election related allegations on a case by case basis. Pension related questions as such are entirely outside our jurisdiction.
Sincerely,
Howard Naiman, Sr. Investigator
U.S. Dept. of Labor, OLMS
From: Daniel J. Franco
Date: Tue, Jan 12, 2010 at 11:03 AM
Subject: Re: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members
To: "Naiman, Howard S - OLMS"
Dear Mr. Naiman,
Would it be appropriate as a courtesy that you could also ask Ms. Fasano at EBSA to answer my questions in print or at least have her state in print why EBSA is so far unwilling to provide me with a response in print? If you do not already have Ms Fasano's email address it is fasano.maddalena[at]dol.gov.
If I implied that I am asking any office other than EBSA to answer my pension/benefit funds related questions then I apologize for the confusion I seem to have caused. I am merely seeking assistance from you to get answers to my question from EBSA or at least why they have not answered or are unwilling to answer.
Sincerely,
Daniel J. Franco
XXX-XXX-XXXX
From: Daniel J. Franco
Date: Fri, Jan 15, 2010 at 4:27 PM
Subject: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members
To: "Naiman, Howard S - OLMS"
Dear Mr. Naiman:
For your knowledge, the response letter below (see http://www.dol.gov/olms/regs/compliance/foia/elections/09_elect_sor/aug/CJA_370_04-16-09.pdf) is to a Carpenters' Local Union 370 (Albany, NY) 2008 election protest in which paragraph 10 states that "The [US] Department [of Labor] found that two members of the Election Committee were retirees drawing from the Local’s pension plan. The Department’s investigation revealed that the presence of the retirees on the Election Committee was a violation of the Carpenter’s Constitution and thereby a technical violation of the Act. See 29 C.F.R. §§ 452.2 and 452.109."
This is one example in which the US DOL has rightfully ruled that the receipt of any carpenters' union pension within the jurisdiction of the UBC disqualifies a carpenters' union member to be eligible to be elected or appointed as a carpenters' union officer, delegate, or committee member.
Sincerely,
Daniel J. Franco
------
U.S. Department of Labor
Employment Standards Administration
Office of Labor-Management Standards
Washington, DC 20210
April 16, 2009
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Dear |||||| |||||||| and ||||||:
This Statement of Reasons is in response to your joint complaint filed on October 8, 2008 alleging that violations of Title IV of the Labor Management Reporting and Disclosure Act of 1959 (“LMRDA” or “Act”), 29 U.S.C. § 481-484, occurred in connection with the Carpenters Local Union 370 (“Local 370” or “Union”) election held on June 9, 2008.
The Department of Labor (“Department”) conducted an investigation of your allegations. As a result of the investigation, the Department has concluded, with respect to each of your allegations, that there was no violation of the LMRDA affecting the outcome of the election.
In your complaint to the Department you alleged that at least 40 members were denied the opportunity to vote because of the distance to the polls and the limited polling hours. The Act requires that a union provide a reasonable opportunity to vote, taking into consideration a number of factors, such as the working schedules of its members, the distance between a member’s home/work site and the polling site. The regulation provides the following language:
There is an obligation on the labor organization to conduct its periodic elections of officers in such a way as to afford all its members a reasonable opportunity to cast ballots. A union may meet this obligation in a variety of ways depending on factors such as the distance between the members work sites or homes and polling places, the means of transportation available, the nature of the members occupation and their hours of work.
See 29 C.F.R. § 452.94.
The Department reviewed work schedules, disbursement of membership and the nature of the member’s work to conclude that Local 370 did not deny members the opportunity to vote in violation of the Act. The investigation revealed that the union covers a wide geographic area with some members living or working more than an hour away in one direction. The Local stated that members’ typical work hours are from 7:00 am to 3:30 pm. However, the investigation revealed that members work for over 100 employers, and the typical workday for many members ends at 5 or 5:30 pm.
The Local, consistent with past practice, provided one polling site which was open between the hours of 12:00 pm and 6:00 pm. The polling hours did not allow members to vote prior to beginning work. However, the polling hours did provide an opportunity for members in proximity to the polls to cast votes during lunch hour or after work. Additionally, those members with a 3:30 release time would have time to reach the polls prior to 6:00 pm, even if the member were required to travel more than an hour. However, those members whose workday ended at 5 or 5:30 pm and who worked more that one hour away from the polls may not have had a reasonable opportunity to vote, though many employees at those locations were able to vote in the election. The Department conducted a mail survey of the 1,242 members who did not vote in the election to determine the reason the member did not vote in the election. Based on the survey, 36 members responded that their working hours or the distance to the polls prevented them from voting. This number would not be enough to have affected the outcome of the election where the smallest margin of victory was 59.
You alleged that the incumbent candidates used Local 370 funds and equipment for campaign purposes in violation of the Act when union officers while on union-paid time used union-issued cell phones to make campaign calls. The Department reviewed the cell phone records from May 16, 2008 through June 15, 2008, of President William Weir, Vice President Doug Blacklock, Recording Secretary Chris Dugan, and Financial Secretary Mark Sowalski. The Department’s investigation revealed that one officer, while on duty, used a union issued cell phone to contact members concerning the election. This officer solicited the votes of two members and called six other members to remind them to vote. Such a use of union funds, however minimal, constitutes a violation of section 401(g) of the LMRDA which provides that “no moneys received by any labor organization by way of dues, assessment, or similar levy, and no moneys of an employer shall be contributed or applied to promote the candidacy of any person in an election.” Id. However, the smallest margin of victory was 59 votes, and the number of members that were contacted through the use of union funds could not have affected the outcome. Therefore, there was no violation affecting the outcome of the election.
You alleged that by the time the union complied with ||| ||||||’s request for the Election Guidelines it was too late to do a campaign mailing. During the investigation, ||| |||||| admitted that at the time of nominations, he was aware of the procedures concerning campaign mailings. Therefore, the Department did not find evidence that any delay in sending the election guidelines prevented the making of a request to mail campaign. There was no violation.
You alleged that the ballots did not put members adequately on notice as to whether the winning candidates would be delegates to the General Convention. The Department found that the Carpenter’s General Convention is held every five years, and Local 370 holds separate elections for delegates to the General Convention. There was no violation of the Act.
You alleged that retired members served on the Election Committee in violation of the Carpenter’s Constitution, Bylaws and Election Guidelines. The investigation revealed that the Constitution and Bylaws at Section 31(D) provides that a member cannot hold office or a position on a committee if drawing from a Carpenter’s pension plan. The Department found that two members of the Election Committee were retirees drawing from the Local’s pension plan. The Department’s investigation revealed that the presence of the retirees on the Election Committee was a violation of the Carpenter’s Constitution and thereby a technical violation of the Act. See 29 C.F.R. §§ 452.2 and 452.109. However, there was no evidence that the retirees acted in a manner that violated the Act. There was no effect on the outcome of the election.
You alleged that members were “turned away” from the polls and that the Local did not allow them to vote challenged ballots until specifically asked to do so. The investigation revealed that six members who sought to vote were found to be ineligible as the Local determined that they did not meet the good standing requirement. These members were not allowed to vote a regular ballot. Five of the six did vote a challenged ballot. The election committee decided not to make a decision on the challenged ballots or to include them in the tally as the five votes would not have affected the outcome of any office. There was no evidence that these members were eligible and were improperly denied the right to vote. There was no violation of the Act.
You alleged that two challenger candidates, ||| ||||| |||||| and ||| |||||| ||||||, were treated unfairly by the Election Committee. You alleged that these candidates were forced to move their campaign tent on election day because the Election Committee claimed that the tent was in violation of a New York State election law banning campaigning within a specific distance from a polling site. You alleged that despite asking the challengers to move their tent, the Election Committee allowed the incumbent candidates to park a truck in the same location. While the location of the campaign tent was protested to the Election Committee, the investigation did not reveal that the action of the incumbents with respect to the truck was protested to the Election Committee or that the Election Committee was aware of and permitted the incumbents’ action. There was no disparate candidate treatment on the part of the union.
You alleged that the voting machines used by Local 370 were not properly examined by the election tellers. The investigation revealed that prior to the election the machines were zeroed out, the Election Committee assigned |||| ||||||||, the contractor for the machines, to demonstrate how the machines worked, and he was available to answer questions. No concerns were raised at that time. There was no violation of the Act.
You alleged that Local 370 misspelled a candidate’s name on the ballot. The Department confirmed that one candidate ||||| (or |||||) ||||||||’s name appeared incorrectly on the ballot as “||| ||||||.” The Department found that Mr. |||||||| had not made any campaign mailings or disseminated campaign literature or writings to the membership such that members were familiar with the spelling of his name. The Department did not find any evidence to indicate that members were confused by the misspelling. Either spelling of ||| ||||||||’s distinct name can be read to sound the same therefore limiting the likelihood of voter confusion.
||| |||||||| confirmed that he did not believe the mistake confused the membership. While the error violates the Act’s provision requiring adequate safeguards to ensure a fair election, 29 U.S.C. §481(c), the investigation revealed no evidence indicating that it affected the results of the election. There was no violation affecting the outcome of the election.
It is concluded from the analysis set forth above that the investigation failed to disclose any violation of the Act which may have affected the outcome of the election and upon which the Secretary of Labor may bring an action under section 402 of the Act, 29 U.S.C. § 482. Therefore, there is no basis for bringing an enforcement action. Accordingly, I am closing the file on this matter.
Sincerely,
Patricia Fox
Acting Chief, Division of Enforcement
cc: Douglas J McCarron, President
United Brotherhood of Carpenters and Joiners of America
101 Constitution Avenue, NW
Washington, DC 20001
William Weir, President
Carpenters Local 370
1284 Central Avenue
Albany, NY 12205
From: Daniel J. Franco
Date: Fri, Jan 29, 2010 at 11:06 AM
Subject: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members; EBSA
To: "Naiman, Howard S - OLMS"
Dear Mr. Naiman:
On, 2010, January 6, Ms. Fasano stated to me by phone that EBSA was not sending me a determination regarding their "investigation" and was forwarding the case information to OLMS for the OLMS investigation. On January 12, I sent to you an email explaining this, In your email response to me later that day, you stated that you had not received anything from EBSA and that you would inquire about it. It is now January 29 and I am wondering, did OLMS, and in particular, you, receive the EBSA information yet?
In addition, I am wondering whether you have corresponded with Ms. Fasano? The last two times I had received a "answers" from her was when she left her January 15 voice mail stating that she was "in the process of preparing a written response addressing all your questions" and then her January 25 email stating that Director Kay had already addressed my questions; addressed, yes, answered, no. She no longer returns my phone calls or emails. The only reason I can figure for this is that she has been commanded by a superior to not respond to me because EBSA refuses to accept accountability, responsibility, and/or liability for answering my benefits related questions. I find this profoundly farcical since this is the same problem I am experiencing with the NYCDCC and the UBCJA, which is the reason I had come to the US DOL in the first place!
Sincerely,
Daniel J. Franco
XXX-XXX-XXXX
From: Naiman, Howard S - OLMS
Date: Fri, Jan 29, 2010 at 3:37 PM
Subject: RE: 2008 NYCDCC Election; UBCJA Officers, Delegates, and Committee Members; EBSA
To: "Daniel J. Franco"
Dear Mr. Franco,
I have not corresponded with Ms. Fasano, and our office has not received additional information from EBSA. They originally contacted us to let us know that they had received a copy of your complaint to us. We did have a copy of your questions for Mr. Kay. As you know, OLMS' jurisdiction allows us to focus only on the election per se, and on UBC constitutional interpretations with respect to pensions only insofar as they apply to the election. You have already provided us with thorough documentation and detailed argument in that regard.
Sincerely,
Howard Naiman, Sr. Inv.
U.S. Dept. of Labor
Office of Labor-Management Standards
Letter of Determination from US DOL, Division of Enforcement Chief, Cynthia Downing.
Letter Dated February 02, 2010
Received Fri, February 05, 2010, via USPS First Class
See 2010-02-02_Election,USDOL,OLMS,Downing-Franco(s2).jpg
