From: Daniel J. Franco
Date: Wed, Sep 9, 2009 at 9:01 AM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: shapiro.howard[at]oig.dol.gov
September 9, 2009
Bronx, NY XXXXX-XXXX
danieljfranco1[at]gmail.com
Mr. Howard Shapiro
Counsel to the Inspector General
U.S. Department of Labor
200 Constitution Avenue, NW
Room S-5506
Washington, DC 20210
Phone: (202) 693-5116
shapiro.howard[at]oig.dol.gov
RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
Dear Mr. Shapiro:
On November 8, 2008, I began to protest 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 New York City District Council of Carpenters (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]
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 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]
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 UBC 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
From: Shapiro, Howard - OIG
Date: Wed, Sep 9, 2009 at 10:05 AM
Subject: RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Daniel J. Franco"
Mr. Franco --- as I indicated over the phone, we will log your complaint into our Hotline system and refer it to our investigative office for their review.
From: Daniel J. Franco
Date: Wed, Sep 9, 2009 at 10:06 AM
Subject: Re: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Shapiro, Howard - OIG"
Thank you.
From: Daniel J. Franco
Date: Tue, Sep 15, 2009 at 9:05 PM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Shapiro, Howard - OIG"
Dear Mr. Shapiro:
Has an investigation begun regarding the issues of retirement, pension benefits, and union carpenter officers and employees?
If an investigation has begun, what is the approximate or expected duration of the investigation before a determination may be rendered?
If investigation has not begun, why has it not begun and what is the approximate or expected wait for the investigation to begin?
Sincerely,
Daniel J. Franco
From: Shapiro, Howard - OIG
Date: Thu, Sep 17, 2009 at 6:10 AM
Subject: RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Daniel J. Franco"
As I indicated last week, your complaint has been logged in by our Complaints Analysis Office (CAO) and referred to our Office of Labor Racketeering and Fraud Investigations for review.
The CAO has not heard back from our investigations office as yet, which is not unusual, since we receive hundreds of complains every month and quite a few of these are referred to this office for review.
We will contact you when the investigations office completes its review.
From: Daniel J. Franco
Date: Thu, Sep 17, 2009 at 6:35 AM
Subject: RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Shapiro, Howard - OIG"
Dear Mr. Shapiro:
Thank you for your response.
Sincerely,
Daniel J. Franco
From: Daniel J. Franco
Date: Fri, Feb 5, 2010 at 10:48 AM
Subject: Retirement; Pension Fraud; 2008 NYCDCC Election; UBCJA
To: "Shapiro, Howard - OIG"
Dear Mr. Shapiro:
On September 17, 2009, you had stated to me via email, "We will contact you when the investigations office completes its review."
Initially, my understandings to which I was seeking concurrence from the US DOL, OIG were 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 UBC are the equivalent of the United Brotherhood of Carpenters Pension Plan with respect to eligibility for office.
4. Those receiving [carpenters' union] pension plan/retirement benefits, and therefore retired, to have been ineligible as a candidate in the 2008 NYCDCC election.
5. Those receiving [carpenters' union] pension plan/retirement benefits, and therefore retired, to have been ineligible as a candidate in any carpenters' union election or as an appointee as an officer, delegate, or committee member, since at least the implementation of the January 1, 2006 UBC Constitution.
I had been seeking simple yes-no answers with my above statements as to whether the US DOL agreed and if, for some reason, they did not agree, why?
Today is now February 5, 2010, which is 141 days since I last received correspondence from the US DOL, OIG. I have since been wondering, has the Office of Labor Racketeering and Fraud Investigations completed its review, or was my inquiry or the US DOL's investigation dropped, or was my inquiry lost or forgotten? If the investigations office had completed its review, does the US DOL, OIG concur with my statements? What were the results of the US DOL's investigation? If the investigations office has not completed its review, what are the reasons for the delay? Why is my inquiry taking so long to answer? If my inquiry/case was dropped by the OIG, why was it dropped and why was I not notified? If my inquiry/case was forgotten, please explain how and why this could have occurred and how the OIG will now proceed? In any event, I am seeking an explanation as to why the OIG has not yet provided answers to my questions and why the supposed investigation has been so lengthy.
With respect to my initial inquiry, to be more accurate for the concurrence that I am seeking from the US DOL, I have since reworded and refocused my statements. If the OIG has been working toward providing a determination for my initial inquiry then the following questions will be easily answerable.
1. Does the US DOL concur that receipt of pension plan benefits is a form of retirement? Yes or no?
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? 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?
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?
I appreciate your time and attention to this matter.
Sincerely,
Daniel J. Franco
Local Union 157, UBCJA
From: Shapiro, Howard - OIG
Date: Tue, Feb 16, 2010 at 2:35 PM
Subject: RE: Retirement; Pension Fraud; 2008 NYCDCC Election; UBCJA
To: "Daniel J. Franco"
Mr. Franco --- I apologize for not responding to your e-mail sooner but we lost a bunch of time here in Washington last week due to the storms. However, I was informed earlier today that our New York office is currently reviewing your complaint and is reviewing allegations related to LU 157. Unfortunately, I cannot provide any further information to you at this time.
From: Gibbs, Ryan - OIG
Date: Tue, Feb 16, 2010 at 5:51 PM
Subject: Local 157
To: danieljfranco1[at]gmail.com
Mr. Franco,
I am the NY OLRFI agent who has been assigned this complaint. If at all possible I could like to meet with you to obtain more information. Are you available to meet next week?
Thank you,
Ryan
Ryan Gibbs
Special Agent
US Department of Labor
Office of Labor Racketeering
From: Daniel J. Franco
Date: Wed, Feb 17, 2010 at 3:35 AM
Subject: Re: Local 157
To: "Gibbs, Ryan - OIG"
Dear Mr. Gibbs:
I graciously thank you for contacting me.
I would be pleased to meet with you next week. What date, time and place do you have in mind?
Sincerely,
Daniel J. Franco
Local Union 157, UBCJA
Mobile: XXX-XXX-XXXX
From: Gibbs, Ryan - OIG
Date: Wed, Feb 17, 2010 at 10:38 AM
Subject: RE: Local 157
To: "Daniel J. Franco"
Dear Mr. Franco,
My schedule is somewhat flexible next week. What time works best for you; if you are working I can meet you after work. I'm not sure where you live or work but I can meet you there or at our office which is located at 201 Varick Street, New York, New York.
Thank you,
Ryan
Ryan Gibbs
Special Agent
US Department of Labor
Office of Labor Racketeering
From: Daniel J. Franco
Date: Wed, Feb 17, 2010 at 12:12 PM
Subject: Re: Local 157
To: "Gibbs, Ryan - OIG"
Dear Mr. Gibbs:
Currently, I am not employed and I will be attending my monthly Local Union 157 meeting Monday, February 22 at 4:30 PM at the NYCDCC, 395 Hudson St. Therefore, if you'll be available, I would like to meet with you Monday at your office at 201 Varick Street at about 1 PM.
Dan
From: Gibbs, Ryan - OIG
Date: Wed, Feb 17, 2010 at 1:02 PM
Subject: Re: Local 157
To: danieljfranco1[at]gmail.com
Would it be possible to do 2pm? If so please call XXX XXX XXXX when you arrive and I will come down to the lobby to get you.
Thank you,
Ryan
From: Daniel J. Franco
Date: Wed, Feb 17, 2010 at 1:04 PM
Subject: Re: Local 157
To: "Gibbs, Ryan - OIG"
Yes, 2 PM, Monday, February 22, will be fine. As you have requested, I will call you when I arrive. Thank you.
Dan
From: Daniel J. Franco
Date: Wed, Feb 17, 2010 at 1:20 PM
Subject: Local Union 157
To: "Gibbs, Ryan - OIG"
Dear Mr. Gibbs:
I would like to confirm, did you contact me based upon the questions and information I submitted to the US DOL, OIG, OLMS, and EBSA over the past five months regarding carpenters' union pensions, retirement, and the 2008 NYCDCC Election? Or, are your interests focused only on Local [Union] 157, as your original subject line suggests? Or, will we be discussing the NYC carpenters' local unions and NYCDCC in general?
Additionally, when we meet next Monday, is there any particular information or documentation that you would like me to bring?
Sincerely,
Daniel J. Franco
Local Union 157, UBCJA
Mobile: XXX-XXX-XXXX
From: Gibbs, Ryan - OIG
Date: Wed, Feb 17, 2010 at 1:39 PM
Subject: Re: Local Union 157
To: danieljfranco1[at]gmail.com
This is based on the information that you submitted to DOL. I will be more than happy to discuss the DCC in general or any other concerns that you may have.
Thank you,
Ryan
From: Daniel J. Franco
Date: Wed, Feb 17, 2010 at 1:41 PM
Subject: Re: Local Union 157
To: "Gibbs, Ryan - OIG"
Mr Gibbs:
Thank you very much for your confirmation.
I'll see you Monday.
Dan
From: Daniel J. Franco
Date: Wed, Feb 17, 2010 at 10:50 PM
Subject: Re: Retirement; Pension Fraud; 2008 NYCDCC Election; UBCJA
To: "Shapiro, Howard - OIG"
Dear Mr. Shapiro:
Thank you for responding as soon as you had. I greatly appreciate the information update. However, since I did not submit any allegations to the US DOL, OIG regarding Local Union 157 (of which I am a member), I am wondering, did you mean to state "NYCDCC", of which I did submit information and inquiries, rather than "LU 157"?
Sincerely,
Daniel J. Franco
Local Union 157, UBCJA
Mobile: XXX-XXX-XXXX
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