From: Daniel J. Franco
Date: Thu, Oct 22, 2009 at 11:55 AM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: Jonathan Kay
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/
Dear Mr. Kay:
Attached to this email is a letter of inquiry regarding "Retirement, Pension Benefits, and Union Carpenter Officers and Employees".
The 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”.
The 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.
I thank you for your time and prompt attention regarding these matters.
Daniel J. Franco
XXX-XXX-XXXX
From: Kay, Jonathan - EBSA
Date: Thu, Oct 22, 2009 at 12:03 PM
Subject: RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Daniel J. Franco"
Mr. Franco:
I don't see any attachment to your e-mail.
From: Daniel J. Franco
Date: Thu, Oct 22, 2009 at 12:09 PM
Subject: Re: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Kay, Jonathan - EBSA"
I apologize for the oversight. The letter should be attached to this email.
ATTACHMENTS:
2009-10-20 Pension,Franco-USDOL,EBSA,Kay.doc
From: Daniel J. Franco
Date: Wed, Oct 28, 2009 at 3:21 PM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Kay, Jonathan - EBSA"
Dear Mr. Kay:
As you know, I sent a letter via email to you Thursday, 2009 October 22 regarding “Retirement, Pension Benefits, and Union Carpenter Officers and Employees”. I had asked for yes or no answers to eight questions.
Today is Wednesday, 2009 October 28. It is now 6 days since I sent my letter. I am at a loss to understand why the US DOL is taking so long to respond to my simple inquiries. Unless there is something I fail to understand or know, the information and logic I have provided should be sufficient to answer my questions. If there is something I fail to understand, I would appreciate if you would explain what that something is. If a week is not considered lengthy, please let me know the typical/ standard/ approximate amount of time it has taken the US DOL to answer similar questions so that I may have some idea as to how patient I am supposed to be.
Additionally, if you are no longer the person to contact regarding my inquiries please let me know to whom I should email or telephone in the future.
I thank you for your time and cooperation with this matter.
Sincerely,
Daniel J. Franco
Local Union 157, UBC
Mobile: XXX-XXX-XXXX
http://franco1.info
From: Kay, Jonathan - EBSA
Date: Wed, Oct 28, 2009 at 5:44 PM
Subject: RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Daniel J. Franco"
Mr. Franco:
Please excuse my delay in responding to your inquiry. For your information, EBSA standards require that we provide an initial response to written inquiries such as yours within thirty (30) days after receipt of the inquiry. The first three questions you have posed involve interpretation of various terms regarding pension plans. Regrettably, I
can not provide simple "yes" or "no" answers to your questions. As a general matter, the terms "pension plan" and retirement plan" are not necessarily interchangeable. While they can refer to the same thing, they do not in all instances. With regard to the meaning of such terms as they relate to the Carpenter's pension plans, and your second and third questions, this office does not provide interpretations of the terms of plan documents. The interpretation of plan documents is the function of the plan administrator. I am not aware of any other government office that does render interpretations of the terms in specific plan documents.
Your last five questions appear to raise questions about eligibility for positions regarding administration of the union, including elections to union positions. Such questions are better addressed to the U.S. Department of Labor's Office of Labor Management Standards. Their offices are located at 201 Varick Street, Room 878, New York, N.Y. 10014. The District Director of the office is Ralph Gerchak. Please let me know if you want me to forward your inquiry to that office.
Finally, if you believe that individuals are receiving pension benefits to which they are not entitled under the controlling plan documents, my office (EBSA) would be interested in learning more specifics about why you have reached such a conclusion.
Please let me know if I can be of further service.
From: Daniel J. Franco
Date: Thu, Nov 12, 2009 at 3:44 PM
Subject: Fwd: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: fasano.maddalena[at]dol.gov
---------- Forwarded message ----------
From: Daniel J. Franco
Date: Thu, Oct 22, 2009 at 12:09 PM
Subject: Re: Retirement, Pension Benefits, and Union Carpenter
Officers and Employees
To: "Kay, Jonathan - EBSA"
I apologize for the oversight. The letter should be attached to this email.
ATTACHMENTS:
2009-10-20 Pension,Franco-USDOL,EBSA,Kay.doc
From: Daniel J. Franco
Date: Tue, Dec 8, 2009 at 11:10 AM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: fasano.maddalena[at]dol.gov
Dear Ms. Fasano:
I thank you for having received and read my letter, originally addressed and sent to Director Kay, dated October 20, 2009, which I
forwarded to you by email November 12, 2009. However, having reviewed my questions in that letter for "100th" time, I now feel the following questions may be better suited to address my concerns:
1. Do you concur 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?
2. Do you concur that those receiving NYDCC Pension Plan benefits are retired from the jurisdiction of the UBCJA? Yes or no?
3. Do you concur that those receiving NYDCC Pension Plan benefits that are working 40 or more hours per month within the jurisdiction of the union are committing pension fraud?
Sincerely,
Daniel J. Franco
From: Daniel J. Franco
Date: Thu, Dec 10, 2009 at 12:57 PM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: fasano.maddalena[at]dol.gov
Dear Ms. Fasano:
Attached is the US DOL, ESA, letter, dated July 22, 2009, to Davenport and Todman in response to their protests that those receiving pension benefits from a carpenters union pension plan are ineligible to be a carpenters' union officer. In the second to last paragraph of the letter body, Ms. Downing states, "The President, Peter Thomassen, and Vice President, Dennis Sheil, were both receiving a Tools pension."
Also, attached are the filings of the IRS Form 990 for July 01, 2004 to June 30, 2008 for the NYCDCC. I do not have the filing of the IRS Form 990 for July 01, 2008 to June 30, 2009 for the NYCDCC yet, but I am sure it will have a similar number of hours listed, which on all forms is 50 hours per week, for Forde, Thomassen, and Sheil.
Todman, Davenport and I had sent letters to the Election Committee and others asking whether Forde, Thomassen, or Sheil were receiving pension benefits, specifically the NYDCC Pension Plan, of which all inquiries were deflected and intentionally not directly answered. Several times we were told that they were not receiving UBCJA Pension Plan benefits and were never told that they were receiving NYDCC Pension Plan benefits. For the correspondence between me and the Election Committee, the Election Monitor, and UBCJA GP McCarron, go to "NYCDCC 2008 Election Protests: Protests and Responses to the eligibility of Forde, Thomassen and Sheil as candidates for the NYCDCC 2008 Election" at http://fairdeal2008.blogspot.com/.
Additionally, what other ways may I go about inquiring whether other persons are receiving pension benefits from the NYDCC Pension Plan, the plan to which I am a entitled?
Sincerely,
Daniel J. Franco
ATTACHMENTS:
2009-07-22_US_DOL-Davenport,p3.jpg
2009-07-22_US_DOL-Davenport,p1.jpg
2009-07-22_US_DOL-Davenport,p2.jpg
13-5569960_990_NYCDCC_2008.pdf
13-5569960_990_NYCDCC_2007.pdf
13-5569960_990_NYCDCC_2006.pdf
13-5569960_990_NYCDCC_2005.pdf
From: Daniel J. Franco
Date: Wed, Dec 30, 2009 at 9:53 AM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: fasano.maddalena[at]dol.gov
Dear Ms. Fasano:
It has been 69 days since I submitted my "Retirement, Pension Benefits, and Union Carpenter Officers and Employees" inquiry to
Director Kay and 48 days since I forwarded my inquiry to you. I am wondering how the your investigation into my inquiry has progressed and whether the US DOL is nearing a determination?
Additionally, did you receive my December 10, 2009, email to you that included seven attachments: the US DOL letter stating that Thomassen and Sheil are receiving NYCDCC Pension Plan (aka "Tools" Pension) and the four 5500's?
Daniel J. Franco
From: Fasano, Maddalena - EBSA
Date: Wed, Dec 30, 2009 at 10:16 AM
Subject: RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Daniel J. Franco"
I have received your December 10, 2009 e-mail and in the process of reviewing the matter.
From: Daniel J. Franco
Date: Wed, Jan 6, 2010 at 12:50 PM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: fasano.maddalena[at]dol.gov
Dear Ms. Fasano:
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*)?
3. Does the US DOL concur that those receiving NYDCC Pension Plan benefits are retired from the jurisdiction of the UBCJA?
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?
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?
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?
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?
If the DOL does not concur with one or more of the preceding questions, I would most grateful if an explanation or explanations would be provided.
I thank you for your time and cooperation.
Sincerely,
Daniel J. Franco
References:
(1*) Title 29, Chapter 18 (ERISA), Subchapter I, Subtitle A, § 1002. Definitions, Paragraph (2) (A) (http://www.law.cornell.edu/uscode/29/usc_sec_29_00001002----000-.html)
(2*) FAQs About Pension Plans And ERISA (http://www.dol.gov/ebsa/faqs/faq_consumer_pension.html)
(3*) 2006 UBC Constitution (http://franco1.info/UBCJA/UBC_Con_2006.pdf)
(4*) NYCDCC Pension Fund Plan Description
From: Daniel J. Franco
Date: Tue, Jan 12, 2010 at 8:08 AM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: fasano.maddalena[at]dol.gov
Dear Ms. Fasano:
I am wondering, did you receive my Wed, Jan 6, 2010 email? If you did, though previously having answered some of my questions via phone, I am wondering whether currently there was difficultly in answering any of the more accurately phrased questions or whether the US DOL is intentionally refusing to provide answers in print?
At the very least, I would appreciate if the questions to which you already know the answers were provided in a response to this email and, if needed and preferably soon hereafter, the remaining questions were then answered by email after the needed information had become available. If there has been any difficulty answering the Jan 6, 2010 questions, please inform me that this is the situation and what the US DOL is doing to provide the answers.
However, with respect to my Jan 6, 2010 email, I have reworded questions 1. and 4. to be more accurate, while the other four questions are merely included for completeness.
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?
Again, I thank you for your time and cooperation.
Sincerely,
Daniel J. Franco
Mobile: XXX-XXX-XXXX
References:
(1*) Title 29, Chapter 18 (ERISA), Subchapter I, Subtitle A, § 1002. Definitions, Paragraph (2) (A) (http://www.law.cornell.edu/uscode/29/usc_sec_29_00001002----000-.html)
(2*) FAQs About Pension Plans And ERISA (http://www.dol.gov/ebsa/faqs/faq_consumer_pension.html)
(3*) 2006 UBC Constitution (http://franco1.info/UBCJA/UBC_Con_2006.pdf)
(4*) NYDCC Pension Fund Plan Description
Date: Fri, Jan 15, 2010 at 4:15 PM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
Dear Ms. Fasano:
As per my voice message today at approximately 3:49 PM, 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
|||||| ||||||||
||| ||||| ||| ||||||
||||||||||| ||| |||||
|||| ||||||
|||| ||| |||
|||||||||| ||| |||||
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
Source: http://www.dol.gov/olms/regs/compliance/foia/elections/09_elect_sor/aug/CJA_370_04-16-09.pdf
From: Daniel J. Franco
Date: Thu, Jan 21, 2010 at 1:13 PM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: fasano.maddalena[at]dol.gov
Cc: "Naiman, Howard S - OLMS"
Dear Ms. Fasano:
Additional information for your knowledge:
At the top of page two of the attached letter (as a jpg for each page), dated May 20, 2008, that notified the members of the local unions affiliated to the NYCDCC of the election for Delegates to the NYCDCC, it states, "Apprentices, members collecting a pension and life members (50 years or more of membership) are not eligible to run for office)." and that "A candidate must be depending on the trade for a livelihood."
While the May 20, 2008, letter was intended to pertain specifically to Delegates to the NYCDCC, the first quoted qualification stated above does not specify a particular pension. Therefore, it appears by this statement that receipt of any (carpenters' union) pension causes ineligibility to run for (a carpenter's union) office. Furthermore, it appears that these very important, if not paramount, qualifying statements were included because the creator(s) of this letter had foreknowledge and an understanding that members who are in receipt of pension benefits are not eligible to run for office and that a member must be working for a livelihood in the trade. This is yet another example in which the receipt of any carpenters' union pension, along with not working for a livelihood in the trade, within the jurisdiction of the UBC is shown to disqualify a member to be eligible to be nominated, elected or appointed as a carpenters' union officer, delegate, or committee member.
Sincerely,
Daniel J. Franco
ATTACHMENTS:
2008-05-20_NYCDCC_Delegates_2008_Election,p2.JPG
2008-05-20_NYCDCC_Delegates_2008_Election,p1.JPG
From: Fasano, Maddalena - EBSA
Date: Mon, Jan 25, 2010 at 10:52 AM
Subject: RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Daniel J. Franco"
Mr. Franco:
This is in response to your January 12, 2010 e-mail. Please note that it appears that your questions were already addressed by the Department's Regional Director, Mr. Kay on October 28, 2009. I have attached a copy of his email for your review.
-----Original Message-----
From: Kay, Jonathan - EBSA
Sent: Wednesday, October 28, 2009 6:45 PM
To: 'Daniel J. Franco'
Subject: RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
Mr. Franco:
Please excuse my delay in responding to your inquiry. For your information, EBSA standards require that we provide an initial response to written inquiries such as yours within thirty (30) days after receipt of the inquiry. The first three questions you have posed involve interpretation of various terms regarding pension plans. Regrettably, I can not provide simple "yes" or "no" answers to your questions. As a general matter, the terms "pension plan" and retirement plan" are not necessarily interchangeable. While they can refer to the same thing, they do not in all instances. With regard to the meaning of such terms as they relate to the Carpenter's pension plans, and your second and third questions, this office does not provide interpretations of the terms of plan documents. The interpretation of plan documents is the function of the plan administrator. I am not aware of any other government office that does render interpretations of the terms in specific plan documents.
Your last five questions appear to raise questions about eligibility for positions regarding administration of the union, including elections to union positions. Such questions are better addressed to the U.S. Department of Labor's Office of Labor Management Standards. Their offices are located at 201 Varick Street, Room 878, New York, N.Y. 10014. The District Director of the office is Ralph Gerchak. Please let me know if you want me to forward your inquiry to that office.
Finally, if you believe that individuals are receiving pension benefits to which they are not entitled under the controlling plan documents, my office (EBSA) would be interested in learning more specifics about why you have reached such a conclusion.
Please let me know if I can be of further service.
From: Daniel J. Franco
Date: Mon, Jan 25, 2010 at 12:12 PM
Subject: Re: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Fasano, Maddalena - EBSA"
Cc: "Naiman, Howard S - OLMS"
Dear Ms. Fasano:
What is going on? Why is my government failing me? Why are you and the US DOL avoiding and refusing to answer my questions in print? I've phrased every one of my questions for a "yes" or "no" answer. The answers to my questions are not that hard to figure-out. I believe that I already know the answers to my questions but I am seeking concurrence from the US DOL so that I can more effectively combat abuses within my union, or at the very least have the US DOL explain to me where my logic fails. Am I mistaken to think that my government has the ability to and should answer simple relevant yes-no questions in print? If any one at the US DOL had actually fully read my letters those persons would have clearly understood that I did not make a complaint or ask for any investigation. I only asked for simple answers to simple questions. If the US DOL did not find my questions simple then it appears that I was mistaken regarding the capabilities and competency of the US DOL.
In retrospect, it appears that I may have provided too much specific information in too long of a letter for the US DOL to comprehend. I assure you that I am not being facetious. However, the US DOL's refusal to answer questions in print that reside within its jurisdiction is beyond ridiculous and I cannot allow the US DOL to avoid answering such questions.
You are correct that Director Kay addressed my questions. However, you are incorrect to think that he definitively answered my benefits related questions. Additionally, it has been well over 30 days since I submitted my questions to EBSA and still I have yet to get definitive answers in print. However, the questions I have recently sent to you are not the same as I had sent to director Kay. All of my recent questions are better phrased and are specifically benefits related.
Director Kat stated that "[EBSA] does not provide interpretations of the terms of plan documents" and that if I "believe that individuals are receiving pension benefits to which they are not entitled under the controlling plan documents, my office (EBSA) would be interested in learning more specifics about why you have reached such a conclusion." If the US DOL does not interpret plan documents, how can it ever conclude that a plan was violated or abused? I have addressed these benefit related questions to my union and my union intentionally refuses to answer definitively whether the NYCDCC Pension Plan is being violated. This is part of the reason why I have contacted the US DOL. In my letters, I stated that it appears to me that the NYCDCC Pension Plan is being violated and I have stated that Peter Thomassen and Denis Sheil, as well as others, are violating the NYCDCC Pension Plan. Again, what is going-on? Did the US DOL somehow not comprehend this from my letters?
It appears to me that I have overwhelmed the US DOL by asking too many questions at once. So, I will try this another way. I will now send to you "informally" by email one question at a time.
Sincerely,
Daniel J. Franco
From: Daniel J. Franco
Date: Mon, Jan 25, 2010 at 12:13 PM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: fasano.maddalena[at]dol.gov
Cc: "Naiman, Howard S - OLMS"
Dear Ms. Fasano:
I have a question. I was wondering, does the US DOL concur that receipt of pension plan benefits is a form of retirement? Yes or no?
Sincerely,
Daniel J. Franco
From: Daniel J. Franco
Date: Wed, Jan 27, 2010 at 12:53 PM
Subject: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
To: "Fasano, Maddalena - EBSA"
Cc: "Naiman, Howard S - OLMS"
Dear Ms. Fasano:
On, 2010, January 6, at about 10:37 AM, you called me to explain that EBSA will not be making a determination regarding my questions and the case was to be forwarded to OLMS. At the end of this conversation I stated that the answers to my benefits related questions, some of which you had already answered verbally over-the-phone, were needed in writing/print and that answers provided by an official letter would be best but answers by email would be fine enough. You then stated for me to send to you my questions by email, which you had agreed to answer by email. Later that day, at about 12:50 PM, I sent to you my questions by email. Having received no response to this email for six days, I resent to you my questions via another email on, 2010, January 12, at about 10:18 AM. Having received no response to either email, three days later on Friday, 2010, January 15, at about 11:28 AM, I called you and left you a voice message in which I asked if you had received my emails and why you had not yet responded. Later that day at about 3:11 pm you called me and left a voice message in which you stated, "I am in the process of preparing a written response addressing all your questions. The response needs to be reviewed by the supervisor before it can be emailed to you. So you know, the early part of next week you would have a written response addressing your questions. If you have any questions, my number here is XXX-XXX-XXXX."
Now having received your Monday, 2010, January 25, 10:52 AM, email response to my, 2010, January 12, 10:18 AM email, and then having responded to your email about an hour and twenty minutes later, and then with a second email a few minutes thereafter, and then having made a follow-up phone call at about 1:48 PM, all three to which you have not yet responded, I now question whether you were sincere when you stated that you were "in the process of preparing a written response addressing all [my] questions". It appears that either you were disingenuous when you spoke on January 6 and 15 or, more likely, that someone has commanded you to not answer my questions.
If EBSA chooses to not answer any of my benefits related questions directly, explicitly and individually today, all of which are phrased for succinct "yes" or "no" answers, I will be forced to go to the US DOL, OIG, my New York State US Senators Schumer and Gillibrand, and the US DOJ due to EBSA's apparent intentional aversion to responsibility, accountability, and/or liability due to willful disregard, collusion and/or incompetence by denying me plain, straight and direct answers.
Again, the questions to which I am requesting answers are:
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(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?
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?
Sincerely,
Daniel J. Franco
cc: Howard S. Naiman, Senior Investigator
Office of Labor-Management Standards (OLMS)
Employment Standards Administration (ESA)
U.S. Department of Labor (US DOL)
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