September 9, 2009
Mr. John Lund, Deputy Assistant Secretary
Office of the Deputy Assistant Secretary
Tel: (202) 693-0122
U.S. Department of Labor
Employment Standards Administration
Office of Labor-Management Standards
200 Constitution Avenue, NW, Room N-1519
Washington, DC 20210
General Tel: (202) 693-0125
Fax: (202) 693-1344
LMRDA assistance: (202) 693-0123
olms-public@dol.gov
http://www.dol.gov/esa/olms/
RE: Retirement, Pension Benefits, and Union Carpenter Officers and Employees
Dear Mr. Lund:
On November 8, 2008, I began to protest to the New York City District Council of Carpenters (NYCDCC) Election Committee, and thereafter to the Election Monitor Steven Bennett and the UBC General President Douglas McCarron, that the incumbents Executive Secretary-Treasurer (EST) Michael J. Forde, President Peter Thomassen and Vice President Denis Sheil whom are receiving carpenters’ union pension plan benefits, and therefore are retired, were ineligible as candidates in the NYCDCC 2008 Election. Additionally, several other local union officers and NYCDCC employees are receiving pension plan benefits. Furthermore, since they and I are members of the same union I, as do many other union carpenters, insist that all carpenters’ union pension plans within the UBC are the equivalent of the United Brotherhood of Carpenters Pension Plan (aka International Plan) with respect to eligibility for office.
The 2006 United Brotherhood of Carpenters and Joiners of America (UBC) Constitution, Section 31D, at pg 33-34, states:
A member cannot hold office or the position of Delegate or a Committee position, or be nominated for office, Delegate or a Committee position, if receiving a pension under the United Brotherhood of Carpenters Pension Plan, or unless present at the time of nomination, except that the member is in the anteroom on authorized business or out on official business, or prevented by accident, sickness, or other substantial reason accepted by the Local Union or Council from being present; nor shall the member be eligible unless working for a livelihood in a classification within the trade autonomy of the United Brotherhood as defined in Section 7 or in employment which qualifies him or her for membership, or is depending on the trade for a livelihood, or is employed by the organization as a full-time officer or representative; provided, further, that members who are life members, apprentices, trainees or probationary employees shall not be eligible. A member must have been twelve (12) consecutive months a member in good standing immediately prior to nomination in the Local Union and a member of the United Brotherhood of Carpenters and Joiners of America for two consecutive years immediately prior to nomination, unless the Local Union has not been in existence the time herein required, and must remain a member in good standing at all times in order to remain in the position to which he is elected or appointed. A member who retires after being elected may complete the term for which elected unless receiving a pension under the United Brotherhood of Carpenters Pension Plan. Contracting members are not eligible to hold office, nor shall a member who has been a contracting member until six months have elapsed following notification by the member to his or her Local Union in writing that he or she has ceased contracting.” [Underline and emphasis mine]
[
http://franco1.info/UBCJA/UBC_Con_2006.pdf]
Title 29, Chapter 18 (ERISA), Subchapter I, Subtitle A, § 1002. Definitions, Paragraph (2) (A) states:
Except as provided in subparagraph (B), the terms “employee pension benefit plan” and “pension plan” mean any plan, fund, or program which was heretofore or is hereafter established or maintained by an employer or by an employee organization, or by both, to the extent that by its express terms or as a result of surrounding circumstances such plan, fund, or program—
(i) provides retirement income to employees, or
(ii) results in a deferral of income by employees for periods extending to the termination of covered employment or beyond,
regardless of the method of calculating the contributions made to the plan, the method of calculating the benefits under the plan or the method of distributing benefits from the plan. A distribution from a plan, fund, or program shall not be treated as made in a form other than retirement income or as a distribution prior to termination of covered employment solely because such distribution is made to an employee who has attained age 62 and who is not separated from employment at the time of such distribution. [Underline and emphasis mine]
[
http://www.law.cornell.edu/uscode/29/usc_sec_29_00001002----000-.htm]
The April 1, 2004, NYCDCC Pension Fund (aka “On-the-Tools” Pension) Summary Plan Description (SPD) at page 31 states:
Reemployment after Retirement:
If you return to Covered Employment following retirement and before age 70, pension payments may be suspended. This will happen for each month in which you work 40 or more hours in “disqualifying employment.”
“Disqualifying” employment means Covered Employment or any employment or self-employment within the collective bargaining jurisdiction of the Union (including work for the City of New York).
You must notify the Trustees in writing if you perform 40 hours or more of “disqualifying employment” in any month. If you fail to notify, and your benefit is paid for a month for which it is later determined you were ineligible because of disqualifying employment, the overpayment will be deducted from future pension payments until the full amount has been repaid to the Plan.
You should also notify the Trustees when your disqualifying employment ends. Benefit payments will resume starting with the month following the last month for which benefits were suspended, with payments starting no later than the third month following the last month of suspension, as long as you gave the Trustees timely notice of the end of your disqualifying employment.
The way the benefit earned during your reemployment is calculated is determined by the rules described in the next section. [Underline and emphasis mine]
[
http://www.nycdistrictcouncil.com/PensionSPD.pdf, page 31]
The “Reemployment after Retirement” section of the 2004 NYCDCC Pension Fund SPD shows that a NYCDCC Pension Plan recipient is considered to be retired. If the recipient of pension benefits works 40 or more hours in “disqualifying employment” in a month that recipient must notify the Trustees in writing. If that recipient fails to notify the Trustees in writing, and the benefit is paid for a month for which it is later determined the recipient was ineligible because of “disqualifying employment”, the overpayment will be deducted from future pension payments until the full amount has been repaid to the Plan.
“Disqualifying employment” means “covered employment” or any employment or self-employment within the collective bargaining jurisdiction of the Union (including work for the City of New York). I am quite certain that “collective bargaining jurisdiction” means within, affiliated to, or directly related to the carpentry trade and that “Union” means the Local Unions, the District and Regional Councils, and the United Brotherhood of Carpenters and Joiners of America. If I am mistaken, please provide supporting documentation that explains how I am mistaken and the specific definitions of “collective bargaining jurisdiction” and “Union” and how derived.
Since a person who is a recipient of pension plan benefits is considered to be retired, it follows that a carpenters’ union member who is a recipient of a carpenters’ union pension plan benefits is therefore considered retired from union carpentry.
To receive rightfully NYCDCC Pension Plan benefits a member cannot work 40 hours or more per month.
If a member receives pension benefits, is therefore retired, he/she is restricted to work less than 40 hours per month and therefore cannot be depending on the trade for a livelihood.
If a member is retired and/or is not depending on the trade for a livelihood then he/she “cannot hold office or the position of Delegate or a Committee position, or be nominated for office, Delegate or a Committee position”.
If a member is retired and/or is not depending on the trade for a livelihood and he/she holds an office or the position of Delegate or a Committee position, or is nominated for office, Delegate or a Committee position then this appears to be a violation of the UBC Constitution, Section 31D.
Conversely, if a member is working 40 hours or more per month and is depending on the trade then he/she is working in “covered employment” and consequently ineligible for NYCDCC Pension Plan benefits.
If a member is working 40 hours or more per month in “covered employment” and is receiving NYCDCC Pension Plan benefits then this appears to be a violation of the NYCDCC Pension Plan and therefore may be pension fraud.
None of this escapes the fact that receiving pension benefits constitutes retirement and members who retire “after being elected may complete the term for which elected”, which logically follows that a member cannot be nominated again for office or as a Delegate or for a Committee position when taken in context of Section 31D of the 2006 UBC Constitution.
In essence, I am seeking rulings that concur that:
1. the receipt of pension plan benefits equates retirement,
2. those who are receiving pension plan benefits or any other type of retirement benefit from any source directly associated with or to carpenter local unions, affiliated councils, or the UBCJA cannot hold office or the position of Delegate or a committee position, or be nominated for office, Delegate or a committee position,
3. all carpenters’ union pension/retirement plans within the UBCJA are the equivalent of the United Brotherhood of Carpenters Pension Plan with respect to eligibility for office,
4. those receiving pension plan/retirement benefits, and therefore retired, to have been ineligible as a candidate in the 2008 NYCDCC election, and
5. those receiving pension plan/retirement benefits, and therefore retired, to have been ineligible as a candidate in any election, delegates, or committee member, since at least the implementation of the January 1, 2006 UBC Constitution.
Sincerely,
/s/ Daniel J. Franco /s/
Local Union 157, UBC
cc: Denise Boucher, Director
U.S. Department of Labor
Employment Standards Administration
Office of Labor-Management Standards
Office of Policy, Reports and Disclosure
Frances Perkins Bldg
200 Constitution Ave NW, Room N-5613
Washington, DC 20210
Tel: (202) 693-1185
boucher.denise(at)dol.gov
cc: Stephen J. Willertz, Director
U.S. Department of Labor
Employment Standards Administration
Office of Labor-Management Standards
Office of Enforcement and International Union Audits
200 Constitution Ave NW
Washington, DC 20210
Tel: (202) 693-1182
willertz.stephen(at)dol.gov
cc: Ralph Gerchak, District Director
U.S. Department of Labor, OLMS
New York District Office
201 Varick St., Room 878
New York, NY 10014
Tel: (646) 264-3190
gerchak.ralph(at)dol.gov
