gray v 332 pension, electrician seeks restitution for costs of ERISA error

ONE PARTICIPANT ACCOUNT; TWELVE ERRORS

2012-03-08T18:11:00.000-08:00

NECA and IBEW Local 332 Pension Plan “A” TRUSTEES: ERROR #12

Plan has maintained that the state DRO cannot be looked into, however, the plan has not taken responsibility for their part as author of the DRO on the state side of the procedure. They erred when they authored the DRO as shown by the California superior court rebuttal of their logic and interpretation of case law. See, Gray v Gray (its on the web.). According to Directors Guild v Tise (a federal case on the web) this DRO never met the criteria necessary to be qualified and therefore can be examined until it reaches the standards for qualification.

Here is, at least, part of the Trustee’s logic. Once a DRO is qualified by the Pension Plan it is supposed to be beyond question. It can not be opened for review again.

UNLESS the Plan did not properly check AND make sure all the fundamental ERISA requirements are met. The Plan only has about eight things to confirm. Name of alt-payee. Address of alt-payee. Term of payments: number of payments which are usually lifetime. AND is the alt-payee getting extra benefits beyond that specified by the Summary Plan Document. The answer to this last question must be NO unless there is a big exception agreed to by the electrician. I never agreed to a lower pension benefit and the alt-payee is getting additional benefits.

According to my ex-lawyer and my interpretation of the “Plan Document” all ex-spouses of eligible electricians are limited to $5 per month of benefits for each year of past service credit. This is the basic one half of the $10 electricians maximum. However here comes another exception: if the electrician works enough years the $10 doubles to $20. So the spouse can be (and often is) eligible for $10 per year of past service credit. All very simply explained in the Plan document BUT my first ex-spouse is receiving about $28 per month for each year of past service. If all my brothers and sisters in the pension system were helping to pay her, I might just go with it, but, I’m the only one paying her the extra money. All her extra benefits come out of my account in plan A. And, that is why I receive less than the California mandated community property portion of my own benefit.

Adding insult to injury the plan is required by ERISA to pay me according to California community property law and they are not doing so. (I think they forgot that rule.:>) But that’s another error mentioned in an earlier blog.

Subject Change.

I asked the trustees, last year, what specific policy excludes me from looking at the Plan minutes: they still have not answered. If they had any smarts they would answer just to keep me from letting you know how you will be treated if you cross them.

I also asked them in December why the SAMPLE QDRO has not been changed. Once again they have not answered. This is a documented problem they have not faced and or do not want to defend. See last weeks blog. I documented the courts opinion of the “Brown Formula” and time rule the Trustees recommend and have published on the benefits web site. The court does NOT interpret the Lehman case the way the trustees do and that may get all of us in trouble.

My appeal should be returning from the court soon. The Plan has tried to get my case dismissed and is close to doing so. However, my appeal of the Plan dismissal motion and the judges positive ruling of it was scheduled for a December hearing and if that indeed happened the court is taking a long time to rule. And, if that is the case than the suit may be more complicated than the Plan indicated to the court. That would be a good thing for me. These kinds of plan errors were not even accepted by the court a few years ago, so there is little case law for them to use, I expect the court to be very careful with their decision. Note: The appeals court will not disclose what is happening with this case until after the judicial panel that hears its has an opinion completed. There were no attorneys arguing, just court lawyers presenting the facts to a three judge panel.

If you are a participant in a multi-employer pension a positive result of my complaint will also be good for you in the long run. The trustees may be forced to defend their decisions for the first time and may well loose some of their arrogance. But don't be too hopeful, half the trustees are from management.

COWBOY HUMOR
Nobody ever drowned himself in his own sweat.

HAPPY TRAILS

ERISA 29 USC 1056(d)(3)(H)

2012-02-28T22:24:00.000-08:00

NECA and IBEW LOCAL 332 PENSION “A” TRUSTEE
Error # 11

The Plan chose to push for a quick conclusion to the dispute over benefits. Some how they convinced my lawyer that any conclusion was better than the stand off we were in. My lawyer convinced me that the cost of furthering the fight was not worth the price of his hours of work. His quote was another $10,000 to $20,000. But look at the law below: there is already a provision in ERISA to resolve these issues.

The Plan wanted to start payments to my ex-spouse rather than send the argument to a Federal judge as required by ERISA. It sure wasn’t going to hurt me to have her wait for her retirement checks. And I’m the person the Plan should be protecting. Did they care what I wanted? NO! Are they supposed to look out for the electrician first? YES!

Will they be looking out for you when it’s your turn? GOOD LUCK!

ERISA 29 USC 1056(d)(3)(H)

“(i) During any period in which the issue of whether a domestic
relations order is a qualified domestic relations order is being
determined (by the plan administrator, by a court of competent
jurisdiction, or otherwise), the plan administrator shall separately
account for the amounts (hereinafter in this subparagraph referred
to as the ``segregated amounts'') which would have been payable
to the alternate payee during such period if the order had been
determined to be a qualified domestic relations order.
(ii) If within the 18-month period described in clause (v) the order
(or modification thereof) is determined to be a qualified domestic
relations order, the plan administrator shall pay the segregated
amounts (including any interest thereon) to the person or persons
entitled thereto.
(iii) If within the 18-month period described in clause (v)--
(I) it is determined that the order is not a qualified domestic
relations order, or (II) the issue as to whether such order is a
qualified domestic relations order is not resolved,
then the plan administrator shall pay the segregated amounts (including
any interest thereon) to the person or persons who would have been
entitled to such amounts if there had been no order.
(iv) Any determination that an order is a qualified domestic
relations order which is made after the close of the 18-month period
described in clause (v) shall be applied prospectively only.
(v) For purposes of this subparagraph, the 18-month period
described in this clause is the 18-month period beginning
with the date on which the first payment would be required
to be made under the domestic relations order.”

An OOPS on my part. Earlier I stated twice divorced electricians can be cheated by the plan. WRONG! Any divorced electrician can be short changed by the Plan Time-rule “averaging” DRO formula.

Here is what the California appeals court said about our Plan sample “QDRO”. It means that the “Brown Formula” the Plan uses in the sample is not the only way to go, and may even be the wrong thing to do. It means that the plan interpretation of “Lehman” is way off.

“Thus, contrary to the trial court’s construction of the judgment, that judgment’s
treatment of the pension requires the exercise of judicial discretion to apportion
community and separate property interests, by selecting an appropriate and equitable method of apportionment based on the particular facts and circumstances of this case, and to divide the community interest in the benefits equally between the parties. The court’s failure to exercise that discretion by its equating the term “Brown Formula” as used in the 1980 judgment with the strict time rule as the chosen method of apportionment constituted an abuse of discretion.”

Here is a “Cut and Paste” from IBEW332benefits.com : forms, pension forms, Qualified Domestic Relations Order

F. SAMPLE QDRO

“The following sample QDRO language divides the community property portion of the benefits equally between both spouses. This sample language is provided as a courtesy. Please note that a 50-50 division is not legally required and does not necessarily accomplish the best result for either spouse.

It also should be noted that the formula in paragraph 5 is the standard "Brown" formula
developed by the California courts and specifically approved by the California Supreme Court in Lehman v. Lehman, 98 Daily Journal D.A.R. 5539 (1998). That formula does not take into account the possibility of different benefit accrual rates in different years. Employees participating in these Plans will often accrue a different benefit amount each year, because of fluctuating employment in the construction industry and/or changes in the collectively-bargained contribution rate and/or changes in the applicable benefit formula.”

Comment: The appeals court did not go along with the “specifically” approved statement above. Therefore the Trustees should work to fix the Plan formula.

Comment: The Appeal court should have reviewed the case in December, still no word of their decision.
The trustees are still in their "stone wall" mode".

COWBOY HUMOR
“Civilization hasn’t done much but make you wash your teeth” Will Rogers

Happy Trails

plan Domestic Relations Order qualification again.

2012-02-18T10:12:00.000-08:00

IBEW LOCAL 332 PENSION PLAN "A"

Error #10 The state of California revised its original DRO and the Plan once again Qualified it even though it still contains overpayment to wife #1 and causes underpayments to participant. Participant community property rights have yet to be completely corrected. 29 USC 1056(d)(3)(B)(ii)(II)

This is the same old story from error #9. The Plan made the same error twice although a year apart. After the state superior court lowered the original benefit to wife #1, but not enough to restore the electricians benefit to 50% of the community property amount demanded by the state of California. This adds an ERISA twist to the works. According to the Erisa law sited above: the plan must not qualify any DRO (domestic relations order) that shorts the participant. So: the state may make an exception (or error) but it is not allowed to be qualified by the Plan. As I mentioned in last weeks edition the Plan did not seem to know this. Otherwise they would have told the Federal judge, in our last hearing, that the Plan is the organization that qualifies a DRO. Rather, they told the judge the state qualifies DROs.

Here are some things that have caused me to chip my teeth and scratch my head.

The government demands that fiduciaries be open and solely looking out for the participant (electrician in Plan A). Is this regulation because of Plans like ours that refuse to be cooperative. They flat out stone-walled me after their third answer was shown to be as wrong as their first two. ( See blog about case law mandating “time rule”). Their idea of “time rule” was later reversed by the court. (This is an “I told you so.)

In Plan A: if an electrician asks for reimbursement and the Plan refuses he can then ask for a hearing. In my case the Plan had a reason for refusing a hearing, I think it was due to some procedure they deemed incorrect, I’m still not sure. But: why would they be so picky? I’m the customer with a problem, they are the bank with my money, why not get together and discuss the problem. At this time, as a card carrying paranoid electrician, I wondered if the administration was giving my request to the board. So I delivered my appeal by hand to most of the trustees. They did not like this move and admonished me for the delivery method. From now on every thing is to go threw the administrator. It was a lot of work finding addresses, delivering and finding out who the trustees were at the time. Heck, two of the labor trustees lived way out of Santa Clara county.

A short outline of our Pension plan. The trustees sit at the top of the pyramid. Below them is United Administrative Services doing the accounting work. Kraw & Kraw making the legal decisions. The actuary figuring out the money needed to fund pensions for lifetimes. And, investment advisors. Members are told to take their problems to UAS. I did that. UAS sent me to K&K due to my legal questions. K&K tried to cover their behind with case law that the superior court later rejected and then stopped responding.. Now, like 99% of the legal profession, K is trying to get me to give up through legal maneuvers.

Participant has a right to all Plan participant records. The court has ruled that means all records pertaining to the participant. I asked the Plan is they had complied. They answered that I could have all the records in the UAS files. A bad thing to say to a paranoid electrician. The rules put no restriction on the location of the files. What about any files at Kraw & Kraw? The Plan answer: my rights are only to the files at UAS.

Of course there may be attorney client privilege? No there is no privilege for attorney
Client communication because of the fiduciary responsibility to the participant. The electrician is allowed to see virtually all of the communications between all parties of the fiduciary relationship because they are all working toward the best interests of the participant.

Another point in the direction of cooperation. If I am correct and the Plan is shorting spouses of divorced electricians, then fixing it now is cheaper than fixing it in the future. And if I am wrong and the Plan is shorting electricians, it is even better to fix it sooner. Can you really trust someone who would bend the rules to help one person at the expense of another. Do you really want to be a party to this kind of arrogance.

Another week and still no answer from the trustees to the following:

1. What specific policy forbids participants from seeing Plan minutes?

2. Why is the Plan still publishing a “Sample QDRO” the court has found

unacceptable.

Cowboy Humor

The only way to drive cattle fast is slowly.

Happy Trails

PENSION PLANS put the "Q" on QDRO

2012-02-10T23:29:00.000-08:00

IBEW LOCAL 332 PENSION PLAN A

Error #9 After the state of California approved the domestic relations order the Plan Qualified it with all the above errors. ERISA has mandated the plan not qualify DROs containing overpayments and extra benefits.
29 USC 1056(d)(3)(D)

This is a procedure the Trustees seemed to know nothing about. Their delegate to the last court hearing denied it existed to the judge. The only recourse for the electrician is this ERISA requirement. If the Plan screws up and will not back down, the only alternative for the electrician is Federal Court. A federal judge and The Plan are the only ones who can qualify a domestic relations order. Our Plan thought at the last hearing the state was the qualifier. WRONG, WRONG, WRONG!! According to ERISA, if the Plan and the electrician do not agree on the terms of a DRO, a federal judge is to make the final decision. Did you notice that it is the Plan and electrician who must agree, the spouse must wait for the decision before taking action.

By the way:

I wonder if the Plan has jumped in and done things the wrong way before? Most of us expect the Plan to be the experts because they are supposed to be the experts. You can lead a trustee to the dictionary but you can’t make him read the definition of fiduciary.

If the court accepts this case it will be another proof of the old adage: If you don’t do it right the first time you will have plenty of time to do it correctly the second time.

The trustees (who don’t seem to act unless motivated by federal rules) are not only protecting your $362,000,000 of Plan A money but also the $335,000,000 in Plan B. Lets hope they do a good job, my retired retail clerk friend is looking forward to cuts in his pension due to the non-union growth of Wal-mart and others.

Still no response from the trustees concerning the “policy” of closed minutes or the reason the sample QDRO (really it’s a DRO) has not been corrected (or why they think it is correct). The trustees have paid Kraw & Kraw $80K a year for the last two years. Perhaps Kraw could throw in an answer just for customer relations sake.

Cowboy wisdom.
No matter where you ride to, that’s where you are.

Happy trails

PENSION PLAN's DRO ERROR #8

2012-02-03T23:33:00.000-08:00

Error #8: The Plan violated ERISA and California Community property law by giving credit to wife #1 for benefits earned by participant after the marriage. Actors Guild v Tise and Plan accounting of wife #1.

This error goes back to the Plan concept that averaging all benefit years together is a fair way to determine spousal benefits. Using their averaging (also known as “time rule”)concept my second spouse’s benefit decreased by half and the first spousal benefit more than doubled.

Another way to look at it:
Marriage #1 ended in 1979 and she gets credit because of the "averaging formula"
for the electricians earnings through 1996.
Marriage #2 started in 1980 and she gets a deduction from her accrued benefit
until the divorce in 1998.
Who is this calculation helping the most? Is it anybodies definition of fair?

Here is my same old answer:
The Plan sites the case of Lehman v Lehman in which the Lehman’s benefits were
averaged by the court. However the Lehman (P.G.&E.) pension plan granted the
same benefit for each year of employee work so averaging did not change the benefit amount accrued by either spouses or participant. The “time rule” did not change their benefit. The IBEW LOCAL 332 PENSION PLAN A has different benefit for each year of work and therefore averaging will change the total amount of benefit. Because benefits have increased over the years, a 1996 benefit is worth way more than a 1980 benefit. Using the plan “time rule” spouse number one gets the
advantage of the higher benefits after the divorce and also does not share any additional benefits earned for herself after the marriage. However wife #2 has her earned benefit reduced by the amount shared with spouse #1. This is a violation of ERISA 29 USC 1056(d)(3)(D).

“A domestic relations order meets the requirements of this subparagraph only if such
order--
(i) does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan,
(ii) does not require the plan to provide increased benefits (determined on the
basis of actuarial value),
(iii) does not require the payment of benefits to an alternate payee which are required to be paid to another alternate payee under another order previously determined to be a qualified domestic relations order.”

Comments:
(i) SPD does not allow benefits to move from alt-payee to alt-payee.
(ii) SPD does not allow for increased benefits
(iii) Plan rules do not allow payments to one payee which are required to be paid another payee.
AND, according to the Plan sited case law of “LEHMAN’: Alt-payees can only earn benefits “DURING THE TERM OF THE MARRIAGE” Not for years after the marriage using the “time rule formula”. This concept was confirmed by the state court in “Gray v Gray”.

Notes and stuff:
Still no court ruling on my appeal, the case was to be heard by a panel of three judges in December and the results posted in January. So: results should be posted any day now.

I sent a letter to the trustees (December) asking for a more details on the policy that limits participant looks into the minutes. It does not seem like an answer from them is forthcoming being this is February. Their stated reason for the turndown was “policy”. Compare that to telling your neighbor not to replace his 15-amp circuit breakers with 50-amp breakers because of the NEC. True, but a very very broad and all including reason that is really a non-answer.

I also asked them why the Plan sample QDRO has not been changed since 2009 when the California Superior court shot down some of its provisions. No answer on that either. But, the letter does require them to admit knowledge of something that should be fixed if they are questioned in the future.

Cowboy Wisdom:
“Why should I obtain something by force that which I can obtain by cheating?”
Doc Holiday
Happy Trails

IBEW LOCAL 332 PENSION PLAN A---------------FIDUCIARY ERROR

2012-01-27T23:43:00.000-08:00

Error #7
The plan has no accounting for the participant benefit. Therefore they lacked the diligence required by their fiduciary role to protect participant.

One of the most important duties of our Pension Trustee’s is their fiduciary obligation. Congress has instructed trustees to act as if the plan Participant is the sole reason for their responsibilities. That is a high bar to set. The trustees are obligated to put the participants before even themselves in the performance of their duties. I personally think those instructions mean that participants (electricians) are more important than the other beneficiaries (spouses, etc.).
So why is it that the trustees failed to check on what my benefit should total? I don’t have the answer but it is obvious they forgot about the congressional instructions in the ERISA documents.
The records show a ("Brown") formula for wife #2 (although its wrong) and two formulas for wife number #1 (both also wrong) but no calculation for the electrician. So: why would they be so confident the spousal support was right without some kind of comparison with the SPD (Summary Plan Document) to make sure the electrician’s benefit was correct. The answer I’m sure is very complicated, the truth is only known to the trustees. They have been unwilling to share with the rest of us for about five years. That is an outrage coming from a organization that is supposed to be totally open and above suspicion.

Here are some facts:

A. Wife #2 has a “BROWN FORMULA” calculation in the file that is wrong and a waste of time for the plan to even work out. (She was paid by this formula until they sent her $25,000 in reimbursements.) She already had a QDRO in the file that specified her benefit. The Plan received it in 1999 and Qualified it as correct and acceptable.

B. In about 1999 I asked the Plan (Sarah Kraw) if the QDRO would affect my benefit. The answer was “NO” the electrician benefit would always be at least 50% of the total accrued pension.

C. Wife #1 has two calculations in the file. One shows her benefit when coordinated with wife #2s 1999 QDRO according to the Plan rules. The second calculation for wife #1 shows her benefit when figured using the Plan’s “BROWN FORMULA” which was later shot down by the California Superior Court of Appeals at my expense. (This one they used and it doubled her pension.)

D. Add my two spousal “BROWN FORMULA” calculations together and a very interesting fact emerges. The total of spousal support is less than it should be! (This is The Plan recommended standard operating procedure.) Therefore my benefit should rise.

E. The TRUSTEES refused to give me a hearing, as required, when I appealed their denial of restitution for my expenses. Check out the appeals process in the SPD, you should be able to get a hearing for a stubbed toe on the way to sign your papers because the policy is so very liberal.

Here are some speculations:
Could it be that the Plan was taking ERISA intent overboard and really meant to pay this electrician more than he deserved? Could it be that the 1999 QDRO opened up a bigger can of worms than any of us dreamed of. Could there be a bunch of divorced electricians who owe their spouses additional benefits? What about “FIDUCIARY RESPONSIBILITY” of our trustees?

DON’T YOU THINK THERE SHOULD BE AN EXPLANATION FOR THIS B/S.

The rest of their errors will follow, I think there are twelve in total but each day a little more comes to light. Four of these people are our brothers who ought to “own up” to what goes on at those trustee meetings. $380,000,000 in their hands and we know squat about it. Like should our IBEW Plan really invest in Walmart, Haliburton, B.P. and who knows what else. Are those foreign country investments good for the US and labor? Are we feathering our beds but kissing off our principles?

Miscellaneous:
The Trustees have refused my request to look at minutes from the 1970s. It is not their policy to allow participants to see minutes and besides there is no Federal law that requires them to do so. They did not explain or site a reason for the policy and if there in no Federal restriction the fed's must not disapprove. An open organization should be cooperative just to prove they are above reproach.
Its also been a couple of months since I asked the trustees why the SAMPLE QDRO is the same as it was before the California Superior Court dissed it in the "GRAY V GRAY" case of 2005.
I think they had a meeting this Thursday so perhaps my answer is in the mail.
Do you think the business manager (trustee)will start his three part explanation announced at the November meeting concerning the pensions and the medical plans. The first segment was due in December.

Cowboy Wisdom
The easiest way to eat crow is while its still warm, the colder it gets the harder it is to swaller

Happy Trails.

IBEW LOCAL 332 PENSION TRUST QDRO errors

2012-01-18T21:10:00.000-08:00

Error # 1 Under paid spousal benefits

Error # 2 Incorrect DRO and QDRO

Error # 3 No QDRO coordination

Error #4 Plan authored DRO of 2005 increased benefits for first wife’s past service credit from $10 per year to $37 per year. Overage lowered participants benefit. Violation of 29 USC 1056(d)(3)(D) which allows no increased benefits greater than the pension allows in the “Summary Plan document“. The SPD is very specific: $10 is the maximum allowed for “past service credit”

Error #5 Plan 2005 DRO increased total of first wife’s benefit to more than the total contributions of the marriage. Violation of ERISA 29USC 1056(d)(3)(D)(i)&(ii) and state case law Lehman v Lehman. Justice Mosk in the Lehman opinion states five times that retirement earnings are only accrued “during the term of the marriage”. Taking money from “wife-two” and giving it to “wife-one” is not proper.

Error #6 The 2005 DRO lowered the remaining account balance below the community property benefit California requires for participant. ERISA 29 USC 1056(d)(3)(B)(ii)(II) requires the Plan not qualify any DRO that does not meet community property law. And, taking money from the electrician and giving it to “wife-one” is not smart because the electrician watches that figure.

Total account balance minus “1999 QDRO” and minus “ 2005 DRO” must leave the proper community property share to the electrician. That share should equal: one half of all the benefits earned during all marriages plus the total of benefits earned during all non-married times.

Perhaps the Plan did not look at the title of the document (ERISA) they incorporated into the Trust Document on August 1, 1980. The "Employee Retirement Income Security Act" is for the protection of the EMPLOYEE. Congress did make provision in ERISA for other beneficiaries but the emphasis was on the employee.

Cowboy Wisdom
Never take to sawing on the branch that supports you, unless you’re hanging from it.

Happy Trails

IBEW LOCAL 332 PENSION PLAN A DRO ERRORS

2012-01-10T23:29:00.000-08:00

Error # 1 Under paid spousal benefits

Error # 2 Incorrect DRO and QDRO

Error # 3 No QDRO coordination

The Plan broke its own rule about coordinating qualified domestic relations orders. (QDROs).
The Plan requires ex-spouse QDROs to be coordinated. (See benefits web site.) My records contain two QDROs: first was dated 1999 (marriage ending in 1996) and the second dated 2005 (marriage ending in 1980.

The Plan authored the 2005 DRO without coordinating it with the first DRO. The 1999 QDRO uses the half of total benefit for each individual year of marriage and the Plan used the averaging method for all years of contributions. Under the Plan method of averaging the ex-spouse with the highest marital earnings normally takes a reduction in benefit (in this case 50%). Because the first Plan qualified DRO (QDRO) is deemed the standard method of benefit division (coordination) the second spouse, who was timely with her QDRO, could not be forced to take the 50% lower benefit. (Its not a fair deal anyway.) Therefore the plan reduced the electrician benefit by the amount necessary to balance the total benefits with the account allocation. However, it is usually wrong to pay the electrician less than half the total earned benefit and it is wrong in this case. Evidently the plan is very stubborn about not paying more than is allowed by the account deposits. And not so stubborn about making sure each beneficiary gets their proper benefit. If all the spouses who have been shorted benefits (as it seems they have) find out, the Plan will have a hell of a expensive mess to clean up. The Plan could have almost 700 divorced electrician benefits to check out.

ERISA does not allow the Plan to QUALIFY any DRO that increases payments to the ex-spouse above those specified in the Summary Plan Document. 29USC 1056(d)(3)(D). Therefore, allowing this ex-spouse $37 per year for “past service” benefits is a big error. The plan maximum for her is $10 per year. She had eight years of credit ($80) but was awarded $296. That equates to $216 deduction from the electricians benefit. ($296 - $80 = $216.) Her “future service” credit was also increased due to the Plan “averaging” concept that was unacceptable to the appeals court. Averaging in this case (past and future credits combined) gives the first spouse a $437 per month windfall.

Do the trustees really think the original intent of this pension plan was to short the electrician's benefit in order to pay spouses additional money. The promise of the Plan in 1972 was that spouses would not be able to receive more than half the earned benefits. And ERISA (which is part of the pension trust agreement) demands that all spouses be paid correctly. The Plans "AVERAGING" method will always unfairly pay one of multiple spouses because it moves money from marriage to marriage.

BOTTOM LINE
Spouse total earned credit based on Summary Plan Document was $124.
Spouse earned credit based on Plan’s 2005 averaging concept $561.
Original extra amount awarded spouse at the expense of electrician $437 per month. ( $561 - $124 = $437)

Fact: The Plan averaging system caused me to have a negative balance from my past service years.

Plan qualification of 1999 DRO is their admission that it is correct and ALSO PROOF of error in the qualification of the 2005 DRO. The author of the 1999 DRO is a long time recognized California QDRO expert Barbara DiFranza.

The Plan erred by improperly qualifying both of my first wifes DROS. The first do to the above explanation and the second because it also reduces the electrician benefit to less than that required by the Community property laws of the state of California. (A federal law mandate the plan has accepted as an ERISA governed pension plan.)

Cowboy Wisdom
Timing has a lot to do with the outcome of a rain dance.

HAPPY TRAILS

IBEW LOCAL 332 Pension Trust benefit errors.

2012-01-07T00:29:00.000-08:00

First Plan Error

First error included the Plan costing me $10K in extra support payments for wife number two by underpaying her benefit for years.

Second Plan error:

The Plan furnished wife number one a domestic relations order that was wrong. At the time she was not a beneficiary and it is contrary to plan rules to furnish private information without participant consent. The divorce was in 1980 and the request for information was in 2005, they must have wondered how much information she was entitled too after 25 years. The Plan wasted your money and a lot of mine constructing an incorrect document.

The Plan explanation: the procedure was different for divorces before 1984. Would you call that a bit of a broad explanation! They threw something together for her, without any input or permission from me, and without looking in the records to find the first QDRO, that had been in their office for five years. Why would they take an ex-spouses word as truth after twenty five years? Did they get all the court records to make sure nothing had changed? Perhaps the lawyers had a few billable hours to fill? Who knows! Well for all their work: they came up with a screwed up domestic relations order and then the Plan qualified it.

It cost me thousands to get her benefit reduced. The California Superior Court reduced her benefit because the Plan miscalculated what she had coming. The Plan said: All years of benefits earned by the electrician must be averaged together to calculate the ex-spouse benefit. The Plan had already accepted a QDRO (from wife #2) that did not average the yearly benefits. So who’s right? According to the court the averaging was wrong.
According to the Plan not averaging is OK (they did accept a non-averaging QDRO from my other wife.) The State of California did not agree with the Plan interpretation of the state law and made that clear in their opinion. The Plan screwed up.

Which leads us in another direction. The state court ruled the Plan DRO was incorrect. The Plan used the “sample plan formula” for the DRO calculation. Why is the same “sample plan formula” still published for use by electricians who want to do their own domestic relations order? Its been about four years. The court even “published” the opinion. That lets lawyers know the court has made a significant decision (case law)that can be sited at future trials. However in reality any lawyer putting together a DRO for an electrician will assume that the “sample formula” on the plan web site is correct and will not check case law. The original state judge assumed the Plan knew what was correct and rubber stamped the plan DRO, the next one may also. My state judge was an expert in criminal law not family law.

Instead of allowing $10 for 1964 to 1973 the Plan thought my ex should get $37 due to the averaging. Old timers did not pay a nickel into this part of the fund, its called “past service credit”. The maximum benefit is $10 per year of past service. According to the Plan; for past service she was entitled to about $250 and I was entitled to $90. She was happy with that split.

For the rest of her years “future service credit” the Plan also allowed her $37 per year as a benefit each month of her retirement. Her total monthly benefit, from the original Plan calculated DRO, was more than the total amount accumulated in the account during the marriage. After the trial the Plan delegate (a Kraw & Kraw attorney acting as substitute trustee) suggested that some kind of conspiracy, not a plan error, was responsible for the new lower benefit. I’m glad he wasn’t my mouthpiece, that statement would be embarrassing. Can you see the headlines? IBEW PENSION A
TRUSTEES claim court conspiracy!

The Plan rule about privacy referred to above is in “Procedures for handling proposed orders and enquiries.” And was still on the benefits web site the last time I looked along with the “sample QDRO” which is really a sample “DRO” but that’s another error.

All this averaging baloney is supposed to be easier than looking at the computer sheet, adding the benefit from each year of marriage and dividing by two. Half for participant and half for spouse unless there is some court added exception. If they can’t divide they can multiply by .5 that’s not too hard either. Now lets see, that would be 16 entries for the 16 years of marriage plus divide by two for a total of 17 entries. Compared to:
Divide the total amount of benefits over forty years by a denominator consisting of the number of benefit years to get the average contribution. Multiply average contribution by the number of years of marriage. That equals 40 entries for benefits, one division entry, and one multiplication entry for a total of 42 entries. IS THIS THE EASY WAY?
I was told that this is the easy way because its uniform for all the UAS customers such as plumbers, sheet metal, etc.

Well then how about the fair way? California is all tied up in being fair. Is it fair to lower wife #2’s benefit from 1996, the last year of the second marriage, to an amount less the half the total contribution? Is it fair to lower her first year of benefits from 1981? Is it fair to raise wife #1’s benefit to $37 in 1964 when her total credit was $10 (contribution was zero)? Is it fair to raise wife #1’s benefit to $37 in 1979 when her total contribution was less than $4 (four dollars)? Is it fair to lower the participant’s benefit to below half of the total benefit earned during his benefit accruing years? Who the hell was it that wore a tool pouch, carried a ladder, packed a lunch, pulled the wire and lifted the material? When my spouse wanted a gym membership I suggested she carry a six foot ladder around all day but she got the membership anyway.

The Superior court of the state of California demands in the case of Lehman v Lehman that the spousal benefit be based on the years of marriage. It is stated in that opinion five times by Justice Mosk. When the California Superior Court saw the case of Gray v Gray years later they confirmed that the averaging used by the plan for the original DRO was not FAIR.

Lehman v Lehman is the same case law used by the Plan to justify the original DRO they concocted for my ex-spouse. Its referred to on the benefits web site. Click on QDROs and forms.

“Rumor travels faster, but it doesn’t stay as long as truth.” Will Rogers

Observations:

The last union meeting had no report on the medical plan as announced in November.

The last meeting had no report from the Pension Trustees in charge of our $380,000,000 fund.

Happy Trails

IBEW LOCAL 332 PENSION PLAN a First sign of incompetence

2012-01-01T22:26:00.000-08:00

2005, First sign of trouble and Plan incompetence

In about 2005 the Plan sent me an apology for; any inconvenience caused by the underpayment of my ex-wife's benefits. It didn’t matter to me; she was totally disabled and sure could use more money. Of course when I realized that the plan had doubled her benefits, and sent her a $25,000 check to go with it, I began to wonder. Her benefits had doubled so my marital support should be lower. Sure enough once in court her new benefit caused my support payments to shrink by $200 per month.

That $200 a month worked out to about a $10,000 over payment. OUCH !! The Plan let me know in no uncertain terms; THAT’S YOUR PROBLEM!! If you are a divorced electrician just think of your chances of getting $10,000 from a totally disabled person with a five year life expectancy. The California family court system does not go there and it is a waste of money to try. If you are divorced keep an eye on the Plan because their sloppy work can cost you big bucks.

And when it comes to your “bucks” they don’t care. So far no one will trade me a cup of coffee for that apology letter let alone buy it for 10K. This law suit is the only chance I have to recover the 10K. And my chances have gotten better since the U. S. Supreme Court allowed total compensation to participants who are victims of Pension Plan error. The case is Cigma Corp v Samara. The court came out with the decision in May of 2011.

At one of our hearings the Plan told the judge; There is no provision for the plan to pay anything other than benefits. Meaning that anything in my complaint that is not about benefits will not be paid by the Plan because it is not in writing that the Plan is responsible. The Trustees must have forgotten that the Pension Trust added all of ERISA in 1984. ERISA (all of it) has been a part of our plan since. If ERISA mandates the Plan pay for its errors (as it does and should) than that mandate is part of our plan in writing.

My point is bigger than this complaint. My point is: HAS ANYONE EVER BEEN MADE AWARE OF ANY ERROR MADE BY OUR TRUSTEES? Is the Plan so sloppy that it needs fixing or just a little sloppy to be put up with. Why would are we putting up with sloppy???

Second Point: WE are a Brotherhood that should be scrupulous in the care of our Members. DID THE TRUSTEES HAVE A BRAIN BURP OR WHAT.

Third Point: Do the trustees even know they have a fiduciary responsibility to each participant in the pension.

I intend to write a series of blogs explaining the eleven other serious errors, committed by the trustee’s, that caused my lowered benefits.

If you are interested in an electrician only facebook group I will gladly give you the name of some one who can admit you. Had I known about this group my blog probably would not exist. It is important for all members of any organization to be heard.

Diplomacy is the art of saying "nice doggie" until finding a rock. Will Rogers

HAPPY NEW YEAR

IBEW LOCAL 332 PENSION TRUST and the CONSTITUTION

2011-12-16T22:30:00.000-08:00

The 9th District Federal Court is due to hear my appeal this month. Three judges will listen to a presentation by a court lawyer of the facts presented by the IBEW LOCAL 332 Pension Trust and me. I presented my written opening brief 1-28-2011. The Plan presented their written answering brief 3-02-2011 and then I presented a written reply brief 3-15-2011. So, according to court instructions everything is in writing and ready for presentation to the panel of three judges. Normally the presentation would be done by an attorney for each side but I have no representative, therefore the court uses their own guy for both sides. It is about a $10,000 minimum for a federal court lawyer, much more than I want to spend seeking a $40,000 restitution.

I found the following in the IBEW constitution. It looks to me like the three together make a case for accusing the trustees of a violation of the IBEW constitutional. I don’t know how the trustees approve pensions but the California Superior court raised my pension above what the Plan specified. That leads to a monetary loss by me (court expenses) caused by the Plan DRO. And that is the same as the economic harm mentioned in the constitution.
NEW MEMBER OBLIGATION
"I,_____(give name)____ , in the presence of members of the International Brotherhood of Electrical Workers, promise and agree to conform to and abide by the Constitution and laws of the I.B.E.W. and its local unions. I will further the purposes for which the I.B.E.W. is instituted. I will bear true allegiance to it and will not sacrifice its interest in any manner."

Article XX
Sec. 3. The acceptance of an application for membership, and the admission of time applicant into any L.U. of the I.B.E.W., constitutes a contract between the member, the L.U. and the I.B.E.W., and between such member and all other members of the I.B.E.W.

Article XXV
Sec. 1. Any member may be penalized for committing any one or more of the following offenses:

g) Wronging a member of the I.B.E.W. by any act or acts (other than the expression of views or opinions) causing him physical or economic harm.

Part of my case is getting my correct pension benefit recognized for what it is supposed to be. That will take winning this appeal and a favorable ruling by the judge. Did you know that ERISA cases are not allowed juries? If my present benefit is too low (which I maintain it is) then its approval by the trustees after their first approval was lowered (by the California court) makes them wrong twice. Would that be two IBEW constitutional errors by our fiduciaries?

I hope the next ERISA pension complaint isn’t yours!

Anything important is never left to the vote of the people. We only get to vote on some man; we never get to vote on what he is to do.
Will Rogers

Happy Holidays / Trails

electrician vs IBEW LOCAL 332 PENSION TRUST A

2011-12-09T22:41:00.000-08:00

Since the appeal should be heard this month it may be a good time to review what it is about. The appeal is about whether or not the Plan is responsible for the error that cost me court fees. The Plan has stated that they could do nothing about what happened. They claim that the state sends them a QDRO and that the plan must accept a QDRO approved by the state. The QDRO in question was written and qualified by the plan.

My appeal claims that the Plan has the final say. According to ERISA the Plan is the authority that decides whether a DRO (domestic relations order) is “qualified”. The plan represents the federal government and therefore must check the DRO to make sure it follows the Federal guidelines. The state has little or no interest in the federal side of the pension plan. Until the IBEW LOCAL 332 PENSION TRUST qualified the DRO it was not final and payments could not begin. The Plan should have used its federally mandated option of not qualifying the DRO.

Go to the benefits WEB site and you will see that the Plan has incorporated this procedure into the Plan rules. Therefore this procedure is required by ERISA and Plan rules. It is the plan that qualifies a DRO, never the state. It is the plan that determines the second DRO received by the plan is “coordinated” with the first QDRO to insure that the electrician does not get cheated. It is the plan that must check to make sure the ex-spouse is not receiving over payments. Overpayments in this case arise from excess credit for past service and averaging benefits from marital years with higher after marriage benefit years. The benefit payments are very specifically stated in the Plan Documents as occurring from the term of the marriage. And in the sample case sited by the Plan: Lehman v Lehman.

Come to find out judges are not like Electrical inspectors. Inspectors read the code and interpret on the spot. Judges want the law read to them and an interpretation furnished after the reading. Then the judge considers the presented facts and makes a decision. Don't go to court expecting the judge to know the law.

The appeals court should hear the case this month and provide the decision in January. If they allow the trial to continue it may be heard sometime next year.

Other stuff.

I went to the union meeting this week. I have to admit being in the majority of members who don’t participate. Therefore there is a lot I don’t understand at meetings. For one thing we received reports on the various committees and offices but nothing from the Pension Trustees. They are responsible for our $380 million dollar fund; it would be nice to know they had a meeting. There was some talk about trustees from the two sides (labor and management) being picky with each other. That was not in a committee report but in a thank-you to a retired trustee.

I think that next month the Business Manager will be reporting on the Health and Welfare part of our benefit plan. I hope he can get around to the communication part sometime. It is very frustrating to be refused a hearing by the very people who are supposed to be protecting my assets.

I also picked up a flier for the “332 Facebook Forum”. I think it is obviously a good thing for the membership to communicate with each other. But I could not get Facebook to work. I’m computer challenged and therefore suspect operator error on my part. My advise to anyone joining the forum: if you are writing about something that pissed you off, push the send button tomorrow.

Our Plan calls itself a "Defined Benefit Plan". If it were it would contain only one account for all participants. Others called "Defined Contribution" Plans have a separate account for each participant. No big deal, but our Plan has an individual account for each member.

“Half our life is spent trying to find something to do with the time we have rushed through life trying to save” Will Rogers

Happy trails

A QDRO WILL LOWER BENEFITS for PARTICIPANTS

2011-11-30T16:01:00.001-08:00

Another story about the “bigs” and the “littles”.

On my way home from a thanksgiving visit I picked up a copy of the New York Times, Tuesday, November 29, 2011 in the Denver Airport. On the front page is an article, “Judge Rejects An S.E.C. Deal With Citigroup”. At first blush it looks as though the SEC goofed and tried to settle a case with Citigroup for too little ($285 million). Citi had sold some securities for a profit of $160 million to investors who then lost $700 million on the investment. There probably weren’t too many electricians involved but it sure made Citi look ugly. I suppose the investors squawked and the SEC took a look.

Well, the SEC suggests they cannot afford to fight these big Wall Street companies so they must settle cases with negotiation. I think the New York Times missed the headline. It should have been U.S. government can’t afford justice for Wall Street.

The SEC is an executive branch agency under President Obama. Judge Rakoff, who rejected the settlement, is a President Clinton appointee who turned down a previous settlement the SEC proposed for Bank of America. That SEC proposal was $33 million and the final approved settlement was $150 million do to Judge Rakoff. BIG DIFFERENCE

Lets step back and take a “big picture” look. We are just winding down “the war with no reason” in Iraq. We lost thousands of soldiers and suffered uncalculated pain for all the soldiers and their families. Now, we can’t afford justice for the Wall Street Barons. It was these same Wall Street guys who’s greed caused even more pain for 99% of our people. Seems the little guy is getting thumped again.

IBEW LOCAL 332 PENSION PLAN A only erred to the tune of $20 thousand in my pension and $20 thousand in expenses but at $380 million they still rate the “big guy” handle. If you are a divorced electrician; be ready when the DROs start hitting the plan. The pension plan may not be there to help as advertised. The trustees have been known to forget where their responsibilities belong. A spouse’s QDRO will hurt you and the Plan is the only authority between you and a even more painful QDRO.

Of course if you are presenting a DRO to the court seeking money from your spouses plan that is a different viewpoint.

“You can’t say civilization don’t advance……in every war they kill you in a new way” Will Rogers

Happy Trails

RETIREE OPINION of the IBEW LOCAL 332 PENSION PLAN "A"

2011-11-17T15:59:00.000-08:00

Another week closer to the appeals court decision on whether or not my case will be heard. I have been trying for a positive disposition of this argument since 2005. The trustees do not want a third party to decide who is right and who is wrong. I do because the state court found in my favor and I think the federal court will also. $40,000.00 is a lot to me personally, my worth is not even close to the plan’s $384,060,142 (2010). In 2010 the cost of seminars and meetings alone, went up to $25,937.

I recently replied to the board decision not to let me see minutes from the pre founding of the Plan. They sited the “policy” reason. Does that mean that they get such a great number of “minute” requests that it is a burden upon them? Or does that just mean something else? I’ve asked for the reason for the policy but this is a real good example of communication with the trustees. They meet once a month (I think) and we don’t know when, so who knows when an answer will appear. Try to solve a problem with them by exchanging letters monthly. Of course the administrator is always available but she never offered to step forward when I had a problem. They do not have the Wal-Mart “can I help you” greeter for directions. However they did send me to Kraw and Kraw who did not have answerers either.

By the way in my letter above I also asked them why the plan sample QDRO has not been changed since the 2007 court decision showed it to be incorrect. They were informed immediately of the court comments by my then lawyer, but no action seems to have been taken. Perhaps the Business Manager will explain this in a couple of months when he gets to the pension plan at the union meeting. I think next month he talks about our health care.

The Plan sample QDRO is an interesting document. First it is really a sample DRO. This is a little nit-picky but a QDRO has the Plan blessing and a DRO, which is only a proposal, is what the alternate payee gives to the Plan for qualification. A Domestic Relations Order presented by the alternate payee, if qualified by the Plan, is the document that becomes the QUALIFIED DOMESTIC RELATIONS ORDER (QDRO) on which the presenter will receive benefits. Lets look a little closer. The DRO is presented to the plan by the ex-spouse. NOT THE ELECTRICIAN. The Plan can reject the DRO or qualify it. The Plan should at least find out if the electrician agreed to the DRO. And if not, why? If the plan does not qualify the DRO, it goes back to the alternate payee for revision. Plan approval is a big thing in court and tells the judge that the Plan experts have approved. And that is what happened to me. The Plan wrote a bad DRO for my ex, she took it to the court, and they knew it was written by the plan, so they approved it. Who does the plan work for? You or your spouse! Did the plan ask me my opinion? NO! Did I know the plan was writing a DRO? NO! Was the Plan supposed to write a DRO without my approval? NO! The DRO contains the rights of the spouse, not the participant, and only lowers the electrician benefit.

More about the sample DRO. The plan has included a disclaimer in the sample DRO instructions. That is how they try to slip the responsibility from themselves to the people wanting a DRO. However the DRO will always be wrong and therefore; the disclaimer, that says it “MIGHT” be wrong, is wrong. “Might be wrong” means once in a while and always means you should not be using the sample DRO. The sample DRO more than doubled my ex-spouse’s benefit. And because it uses averaging of benefits beyond the years of marriage it will be an accident if it is ever correct. The inclusion of the disclaimer in the plan sample DRO is itself deceiving; it gives the impression that the DRO is almost always correct when in fact it is almost always wrong. Let me throw in that the California Superior Court of Appeal did not accept the Plan QDRO that was a copy of our sample DRO.

I just received the 2010 IBEW Local 332 Pension Plan financial report thanks to the Plan. Yes, they do good things, but when they are bad they are not correctable. We lost $3,000.00 on our WALMART stock last year so think about shopping there more. NOT! Are you proud to be a Wal-Mart owner? The pension is not the union, and they only have a $59,677.00 piece of Wal-Mart. We also have money in Qatar, Poland, Korea and the USA.

The Federal Appeals court opinion should be made public sometime in January. I think it is 50/50 that we go back to court. And if not, I can complain about this months short pension check.

Do you wonder what the breakdown is between 2010 Plan pension seminars and meetings, total cost $26K? Those meetings could be luxurious. Could it have been $20,000 for meetings and $6,000 for seminars?

Remember the “golden rule”; those who have the gold make the rules. I mentioned previously that if you don’t catch a Plan hour reporting error within their defined time the error becomes unfixable. That means you eat it they don’t fix it. (One of the golden rules.)

“The country has come to feel the same when congress is in session as when the baby gets hold of a hammer.” Will Rogers

Happy Trails

Reform IBEW LOCAL 332 PENSION TRUST

2011-11-11T18:10:00.000-08:00

If “Occupy San Jose” is an attempt to get the attention of Wall Street and affect some reforms then perhaps this blog is “occupy IBEW Local 332 Pension Trust”. Just as Wall Street has proven reforms are needed so has our pension plan. Paul Harvey (not always loved in union circles) once told a gathering of business leaders that he was against government reforms. They applauded. He went on to say, reforms are the answer to businesses that are not honest. They were silent. The same goes for the pension plan. When they can’t follow their own rules. And, don’t know the ERISA rules; they need to be reformed. By the way ERISA was folded into the plan and is therefore part of the plan itself.

If you are a divorced member with pension benefits accrued you should be asking questions of the trustees about the charges in this blog. It is way to late if you get surprised at your retirement party. We think of the Pension people as an extension of our union. They are Not! You can’t talk to the trustees and UAS is just there to do what they are told. If an error pops up the Plan may just stonewall you like they did me.

In 2005 I contacted the Plan lawyers, as suggested by UAS, with my complaint of low benefits. Kraw and Kraw e-mailed me a reference to the “Brown v. Brown” case. I looked it up. Not a single reference to averaging all earned benefits as in the Plans “Time Rule”. I replied that Brown was mute on time rule. They gave me another case; I replied still no time rule. They gave me a third case, my reply was the same. The Kraw organization did not know their case law. All you gotta do is go down to the law library on First Street and look these things up. The clerk is very helpful. After the third case communications from Kraw stopped. They would not answer another email.

UAL could not explain, Kraw did not explain, the Business Manager had no comment. I ran for a lawyer and he alerted the Plan of their error. Put yourself in my place and you may wish to get the pension plan correct before your retirement request goes to the board.

Here is some interesting history. I don’t know the exact dates but when ERISA started only a class of retirees could sue a pension plan. An individual could not sue over benefits. In about 2008 the Supreme Court ruled in the case of “LaRue V DeWolff” that individual participants in plans such as ours could sue. Why, because the plan in which LaRue had an account screwed up and lost him $100,000. The mistake was big enough the court realized that pension plans needed some reforming in this area. Along with the screw-up his plan would not make it right just as our plan refuses to fix my account.

Now things have gotten even better for the participant. The Supreme Court ruled this year in “CIGNA CORP v. AMARA” that participants can recover compensation if injured by a Pension plan. Therefore we are now talking about all the costs of litigation, not just the reimbursement of the lost benefits. Good for me who has run up some bills pushing the Plan, but bad for the members who will suffer lower benefits because of the Plan error. Not to worry, the Plan spent plenty last year on insurance ($90,000.00), my compensation would hardly affect the Trustee’s seminar budget ($23,000.00).

Fun car history. In 1896 Great Britain raised the automobile speed limit from four (4) miles per hour to fourteen (14) mph. And also dropped the requirement that all cars have a signalman with red flags to warn of there approach.

“Chaotic action is preferable to orderly inaction.” Will Rogers

Happy Trails

Trustees can do "ENOUGH" or be fiduciaries IBEW LOCAL 332 PENSION TRUST

2011-11-02T07:09:00.000-07:00

The trustees sure did enough for me. (NOT)

First: The people they hired to write a Domestic Relations Order for my ex-spouse did not remember they already had a Qualified Domestic Relations Order in my account. So they used the wrong formula for the new DRO. It is a plan rule that a second DRO must be coordinated with the first QDRO. The trustees had done their job and that was good enough for them. (A QDRO is just a DRO that has been “qualified” by the Plan itself therefore the Plan is required to keep track of orders they have agreed to.)

Second: The people they hired to check the DRO for qualification approved it. (Of course they did, they wrote it.) So, after court appearances and an appeal the court raised my benefit. So what? This means the DRO was wrong and should not have been approved. At the same time the court made statements that invalidated the plan sample QDRO. The trustees had done enough because the author’s are ERISA experts and it wasn’t the trustees themselves who erred. They have not yet (4 years) repaired the sample QDRO.

Third: The trustees turned down my request for reimbursement of expenses. The experts must have told them they had done enough. They stated that the costs were my problem and later in court their lawyer alluded to a conspiracy. I guess the trustees felt their approval of a bad QDRO was my fault. It just seems like the error maker should be the bill payer. And now the Plan is in danger of increased settlement costs because the Supreme Court has now raised settlements from restitution to compensation. Cigna Corp v. Amara on 5/16/2011. Restitution only covers legal expense but compensation covers all expenses. For instance: travel, meals, advise of outside lawyers, worry, constipation, copying, ink, etc., etc. loss of consortium.

Fourth: The trustees turned down my request for a hearing. I invite you to check the hearing clause in the Plan. They must grant a hearing for almost any reason. (See one of my earlier blogs). The trustees had done enough and no hearing was going to change their minds. I’m sure that is true, their minds were made up. They were ignoring their duty as fiduciaries and trying to cover their butts instead. They were also ignoring a long established right of Americans to have hearings. I’m absolutely sure the revolution had something to do with the right to hearings. And I know the bill of rights contains an amendment about hearings.

Fifth: The trustees stated that the matter was closed and they would have no more to do with it. I guess they thought they had done enough. I filed suit asking the federal court to check and see if I deserve reimbursement. The experts hired by the trustees argued that state court was the proper venue. The Plan document definitely says I must file in federal court. The judge agreed with me. Don’t you just hate it when your experts keep being wrong. But what could the trustees do, hiring experts is surely enough. (Note: if they had kept their word and remained silent I would have won by default and not writing this blog.)

Sixth: The trustees approved QDRO was giving the spouse $37 per year in past service benefits. The maximum is $10 per year. That’s $27 extra per month for each year of past service. The trustees had done enough by hiring experts so they didn’t check to see if one of the fundamental benefits was correct. (It’s the same for everyone, so are there other spouses getting more than the $10 per month in past service benefits?)

Seventh: The original QDRO and the present QDRO both award the spouse more than the California Community Property Law allows. The experts hired by the trustees have not addressed this issue. Its up to the experts, I guess, because the trustees have done enough. Did I tell you that federal law (ERISA) requires the plan only approve DROs that meet the state community property laws. And, in ERISA, is a clause that specifically disapproves of paying a spouse any benefit above that shown in the Plan Document. (See the sixth error above.) ERISA 206 or 29USC section 1056(d)(3)(D).

Biggest error: Not acting as fiduciaries. Fiduciaries are supposed to protect their participants without regard for their own interests. That’s why Fiduciary Duty is considered a higher responsibility than a company CEO or a union Business Manager. How many errors does it take for our trustees to stand up and be fiduciaries?

Did you know that trustee meetings or even the number of trustees at a meeting is none of your business? Thats not the law, it's only a Plan policy.

“Live in such away that you would not be ashamed to sell your parrot to the town gossip.” Will Rodgers

Happy Trails

CLOSED MINUTES at the IBEW LOCAL 332 Pension Trust

2011-10-25T22:42:00.000-07:00

Board of Trustee’s minutes.

I requested meeting minutes(August 24, 2011) from the board of the early seventies. It is my memory that one of the meetings I attended, at the union hall, included a statement from the presenter that spousal support under the Plan would not exceed 50% of the marital benefits. You may recall that my gripe is spousal support taken from my account of way over 50%.

The Trustees have refused my request. In the past they have not always supplied the reasons for their decisions even though the reasons are a requirement. This time they came through with a reason. “ It is not the policy of the Plan to provide meeting minutes to participants and it is not required under federal law.”

Comment: They have not supplied the policy reason and therefore have once again failed to supply anything logical to back up their denial. The fact that federal law does not require minutes be distributed does not come close to meaning that the minutes cannot be provided. Perhaps this compares to a stockbroker who refuses questions about an account?

The Trustee’s second point about the minutes is somewhat more interesting. “Meeting minutes are not required to be provided to a participant unless the minutes ‘constitute an instrument under which the plan is established or operated.’ The minutes you have requested do not constitute an instrument under which the plan is operated and therefore are not required to be provided.”

Comment: IRISA does not require the minutes to be withheld. (Read the Trustee statement.) I am asking for documents that may be directly related to why the plan was accepted by the membership. Many of us thought we were protecting our pensions with the terms of this plan because of statements in those early meetings. And of course not being REQUIRED to supply something is not the same as not being ALLOWED. Have the trustees forgotten their fiduciary duty requirements? They are duty bound to be the fiduciaries of everyone in the plan including me and you.

EXAMPLE
Their sample DRO is wrong (according to the California Superior Court) they must correct the error immediately. It has been four years since the court brought the DRO error to the Trustees attention.

OPINION:
In this letter the trustee’s are trying to show that they are doing “enough”.
WELL
They did enough to cost me $40K and don’t have the guts to pay for their own errors.
Think about it:
Do we want a union representative who only does enough?
Do we want to recruit a non-union electrician who only does enough.
How about a union committee chairman, member or apprentice who does only enough.
Don’t we sell union labor as being much more than enough.
Did we spend over $20K in seminars in 2009 to teach the trustees to do enough?
A fiduciary, by definition, is to do more than enough.
Why are we accepting trustee’s that can only do enough?
Public law requires full government committee disclosures, why is our pension plan free to do as it pleases without being open to the membership?

Why is it the trustee answers never contain more than asked for?

“People are getting smarter nowadays; they are letting their lawyers, instead of conscience, be their guide.” Will Rogers

Happy Trails

Letters referred to above:

August 24, 2011

James Gray
3745 Akron Way
San Jose, Ca. 95117

Board of Trustees
Of the I.B.E.W. Local 332
Pension Trust
P.O. Box 5057
San Jose, CA 95150-5057

Hello Board:

I recently requested minutes of Board meetings and early presentations to the membership concerning spousal benefits from Judy Sargent. Judy replied that minutes are not open to Participants and therefore she could not comply with my request.

Judy invited me to contact you with my request and that is the reason for this letter. If for some reason you cannot comply with this request please supply your reason for the secrecy.

Regards,

James Gray, Participant

Re: I.B.E.W. Local 332 Pension Plan (“the Plan”)
Request for Meeting Minutes

Dear Mr. Gray:

In correspondence dated August 24,2011 addressed to the Fund Office, you requested copies of the meeting minutes from 1971 through 1973. The Board of Trustees considered your request at their meeting of October 13,2011. The Board voted to deny your request. It is not the policy of the Plan to provide meeting minutes to participants and it is also not required by federal law.

ERISA section 104(b)(4) states that a Plan must, upon written request of any participant or beneficiary, provide copies of the latest updated Summary Plan Description, the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other such instruments under which the plan is established or operated. The Department of Labor in Advisory Opinion 87-10A expressed its opinion that Trustee meeting minutes are not required to be provided to a participant unless the minutes “constitute an instrument under which the plan is established or operated.” The minutes you have requested do not constitute an instrument under which the plan is operated and therefore are not required to be provided.

Sincerely,

New math pension formula from IBEW LOCAL 332 Pension Trust A

2011-10-12T22:32:00.000-07:00

The latest court opinions have been issued for cases close to my case number. I think the Federal Appeals Court web site shows my appeal is getting closer to its hearing. There really is no exact way to tell when the hearing will be. The December projection still looks good.

I have done a little research about my constitutional right to a trial and found an answer in the 7th amendment. Part of the bill of rights guaranties trials for civil errors that cause injury. Here is part of my case.

#1 Fact
Stated in the Plan SAMPLE QDRO explanation.

“The following sample QDRO divides the community property portion of the benefits equally between spouses.”

#2 Fact
Lehman v. Lehman, which the Plan sites as their authority for QDRO formulas stated:

“Results must be reasonable and fairly representative of the relative contributions of the community and separate estates.”

#3 Fact
The Plan pension calculation divided the account benefit of $325 into the following;

SPOUSE $560.00
Electrician; Negative <$235.00>
Total $325.00
When the Plan decides the spouse is to receive more than the account balance, even an electrician can figure out whom the plan is really representing.

One more time:
The Pension Benefit account during the years of my first marriage totaled $325.
My spouse was awarded by your trustees $560 for those marital years.
$235 more than the total amount in the account. Your trustees sited the California Supreme Court case of Lehman v. Lehman as their authority. Lehman v. Lehman, Gray v. Gray, and all the information of the appeal are public knowledge. The trustees are allowed to answer any questions you ask them. I hope you will ask any trustee how this happened.

Another hopeful fact:

The Plan did not dispute the appeal charge that they mislead the judge. The trustee’s delegate (mouth-piece) told the judge that a state CAN qualify a domestic relations order. Truth is: Qualification is only the Plan’s (ERISA) duty. A Federal Judge can also qualify a DRO if the participant finds an error the Plan refuses to correct. (see above calculation) But a state court domestic relations order is subject to only the Plan’s qualification and the qualification of a federal judge if disputed.

In 2005 the Plan was informed there was a problem with my benefit. In 2007 the state court ruled that the Plan’s domestic relations order was incorrect. The Plan claims to have used the SAMPLE QDRO as their quide. They have yet to change the Sample QDRO. Today is October 12, 2011 about four years since the court ruling.

That means every divorced electrician’s benefit, that was calculated by the Plan, is suspect. And the ones after 2007 are beyond any reasonable excuse. It only takes one formula exception to make the whole process invalid.

The Trustees do not have a set meeting date but were scheduled to meet this month.

“A remark generally hurts in proportion to its truth" Will Rogers

Happy Trails

DENIED RESPONSIBILITY - IBEW LOCAL 332 Pension Trust A

2011-10-05T11:16:00.000-07:00

A comment about the “BROWN FORMULA” and the IBEW Local 332 Pension Trust
You can find the text
On the IBEW Local 332 Plan Benefits WEB site (ibew332benefits.com):
Click on Pension
Click on Forms
Click on Qualified Domestic Relations Orders.

On page 4 is the following:

F. SAMPLE QDRO

The following sample QDRO language divides the community property portion of the benefits equally between spouses. This sample language is provided as a courtesy. Please note that a 50-50 division is not legally required and does not necessarily accomplish the best result for either spouse.

It is also noted that the formula in paragraph 5 is the standard “Brown” formula developed by the California courts and specifically approved by the California Supreme Court in “Lehman v. Lehman” 98 Daily Journal D.A.R. 5539 (1998). That formula does not take into account the possibility of different benefit accrual rates in different years. Employees participating in these Plans will often accrue different amount each year, because of fluctuating employment in the construction industry and/or changes in the collectively-bargained contribution rate and/or changes in the applicable benefit formula.

Paragraph 5 of the sample domestic relations order.

5. The community Benefit under Part A shall be calculated by multiplying the total benefit payable to Employee by a fraction. The numerator of the fraction is the total years during the marriage for which the Employee receives credit under Part A. The denominator is the total years for which Employee receives credit under Part A. This calculation shall be performed as of the date when benefit payments to the Spouse are to begin, in accordance with the terms of the Pension Plan in effect at that time.

Now that you have the background I’ll comment:

In my case the above formula (calculated and fought for by the Plan) proposed my first wife receive $560 per month. The total benefit earned for both of us for those years of marriage: $165.21. Past service benefit: $160. Total $325. The years were 1963-1978.
By any standards $560 is absurd based on the $325 total credited to the account.

Lehman v Lehman (sited by Plan in F. above) is very specific: “Results must be reasonable and fairly representative of the relative contributions of the community and separate estates.” The same statement used in the appeal decision that canceled the original QDRO.

Lehman v. Lehman (sited in F. above) also declared five times that the benefits received must be earned during the marriage.

In my appeal of the Benefit awarded by the Plan written domestic relations order the Panel of three superior court judges were certain the “Brown” formula (time rule) did not apply at the time of divorce. The pension plan believed it did apply.

In Gray v. Gray (P.16) the court said: “On the face of it “Brown “ did not either establish or promote the use of the time rule, or any specific formula, as a method for the ultimate pension division on the court’s exercise of its retained jurisdiction.”

This court statement of 2007 is contrary to the trustee opinion stated in their literature that still has not been changed to comply with the court opinion. It is the Plan fiduciary duty to be timely. Not changing the Plan text to meet the law is a breach of fiduciary duty. Not knowing is not an excuse because the Plan legal adviser was informed.

Specifically addressing the details of my marital agreement Gray v. Gray stated: “not at issue was whether the “Brown Formula” was synonymous with the time rule as an apportionment method. The reference to the “Brown Formula” there did not even necessarily imply or endorse the time rule, but rather described the notion of a “Brown formulation order,” which would require valuation of the community property interest in the pension at the time the benefit became payable instead of at the time of the earlier dissolution, a concept expressly endorsed by “Brown’s in-kind division through the court’s reservation of jurisdiction over pension rights until they become payable in the future.” Page 19.

The Plan still insists that the time rule and “Brown Formula” are one and the same. The superior court ruling found the formula just holds the benefits until retirement. Perhaps the trustees should sue the California Superior Court for a wrongful interpretation (:>) or admit to a breach of fiduciary duty.

“The record reveals that the parties initially stipulated to “distribution of [IBEW] retirement fund reserved” and that no one requested the court to later divide the pension benefits expressly per the time rule or any other specific method of apportionment.”

This court statement is contrary to the plan opinion that the “Brown Formula” is the same as the time rule. It is the use of the time rule that threw my benefit below community property law standards.

Gray v Gray page 22 -23 DISPOSITION

The order providing for apportionment of James’s defined benefit pension per the time rule is reversed. The matter is remanded to the trial court with directions to exercise its discretion to equitably apportion the defined pension benefits and divide the community interest in accordance with Family Code 2610, subdivision (a), and 2550. We express no opinion on the proper method of apportionment, i.e. per the time rule or any other particular formula.

This is confirmation of my charge that the Plan improperly “qualified” the first domestic relations order given them by the state. And since the second order from the state allowed a shortage of benefits to the participant, the Plan acted improperly when they qualified it. (Of coarse they told the judge the state had already qualified the new domestic relations order but, of coarse, the state is not allowed by ERISA to do that.

Other ramblings:

Rules and procedures for Administering Qualified Domestic Relations Orders. (A plan document)

A. QDRO Requirements

2. Prohibited Provisions; the order will fail to be a QDRO if it does any of the following
a. REQUIRES THE PLAN TO PROVIDE INCREASED BENEFITS:

PAYING MY EX-WIFE $37 PER YEAR FOR PAST SERVICE IS $27 PER YEAR OF INCREASED BENEFITS. Maximum benefit for her past service years is $10 per year.

D. Procedure for Handling Court Orders
3.Acceptance of order
4. Rejection of order
THEY ADMIT HERE TO HAVING A CHOICE OF ACCEPTING OR REJECTING THE ORDER. Perhaps they should have told the judge, when he asked, that they could reject the order. It is still not to late, an honest trustee would have written the court after the hearing and corrected the statement. Or, when the trustees replied to my appeal of the dismissal order they could have easily pointed out their error to the court. Their fiduciary role is indeed in question.
How do I know they have done nothing? I check the case docket every week.

7.Trustee Discretion: The trustees or their delegates have full discretion to determine whether either plan should comply with a proposed final order. (They forgot to tell Judge Lloyd when he asked in court.)

8.The Plan will not sign an order.
(But they even wrote this order.)

E. Procedure; last sentence.
This will avoid issuance of a non-qualified order with which the plan cannot comply.
Gad the papers say this over and over but in court, when it mattered, they forgot??????

Are we proud owners of KBR and Halliburton? See the plan financial report. Which one did the faulty electrical work that killed people in Iraq? It was Halliburton accused of all the big time over-charges.

“Even if you’re on the right track, you’ll get run over if you just sit there.”
Will Rogers

Do you think Will understood fiduciary duty better than our trustees? Four years and the vanquished Plan procedure remains the same.

Happy Trails

IBEW Local 332 Pension Trust Errors cost me $40,000

2011-09-29T10:44:00.000-07:00

I.B.E.W.Local 332 Summary Plan Document (2004) page 16.

QUESTIONS AND ANSWERS

Why would a divorce affect my pension?

In California, your pension benefits earned during marriage are considered community property.

Comment:
Wow!! Look at that; the Plan agrees with me that benefits earned during a marriage are considered community property. Just as Justice Mosk stated in the Lehman case sited by the Plan. So if we agree where is my money? If they agree why did they write a domestic relations order that awarded the ex-wife more than half the benefits earned during the marriage? Why did she get $37 per year for past service instead of the mandated $10. I’m not sure I even got the $10 because they did not account for my benefit.

Here is my theory. They lost my second wife’s QDRO, which they received in 1999. When they qualified the second wife’s QDRO it was an automatic requirement that any future QDRO be accepted only if it allowed the proper benefit for the participant. All QDROs qualified by the plan must amount to only half of the benefit due to the community property law and ERISA. And according to the Plan’s own rules as stated in “RULES FOR PAYING BENEFITS UNDER A COURT DOMESTIC RELATIONS ORDER (QDRO)” which is found on the benefits web page.

Note: a court domestic relations order is not a “QDRO”.
It can only be a QDRO after qualification by the Plan or a Federal Judge.

A QDRO MUST:

9. It must not be inconsistent with any prior QDRO affecting the employee’s benefits.

COMMENT:
The 2005 Domestic Relations Order was required to be consistent with the prior QUALIFIED Domestic relations order received and qualified by the Plan in 1999. It was not consistent and therefore it was a plan error, the Plan did all the work. They lost the paper work, they underpaid wife #2 for years ending with a $25,000-plus reimbursement.

The Plan broke their own rules and now expects me to foot the bills. As a participant or future participant are you proud of this kind of representation by your trustees?

“Never kick a cow chip on a hot day” Will Rogers

Happy Trails

IBEW LOCAL 332 Pension Trust A Trustee Errors

2011-09-21T19:37:00.000-07:00

Back to the IBEW LOCAL 332 Summary Plan Document.

WHAT ARE MY RIGHTS? Page 9-10

9. “This claim and appeal procedure shall apply to and shall include any and every claim or right asserted under or against the Pension Plan, regardless of when the act or omission upon which the claim is based is denied.”

COMMENT: If this procedure is for every kind of claim and appeal: How could any claim be denied without a right to appeal? My appeal was denied. Therefore they did not have to look me in the face and listen to all the errors for which they are responsible.

PLAN BENEFITS Page 10-11

“Past Credited Service” means credit earned during the 10-year period of employment preceding January 1, 1972. Benefits will be credited on the following basis:
Hours worked in a calendar year: Yearly Credit: Retirement after 1/1/85.

Comment: There was never an accounting of my pension. My ex got $37 per year for past credit in her accounting document. The plan has not disclosed how my pension was divided. Perhaps their formula was $37 for her and minus $17 for him. (Do to my twenty years plus of service, the past service benefit doubled to $20.) I do know they did not allow me a full benefit so they had to deduct somewhere.

“What happens upon dissolution of marriage? Page 16

If your marriage ends you and your wife may wish to divide your pension benefits as
part of your marital property settlement. If your former spouse is to receive
any part of your pension, you must obtain a court order which meets certain
legal requirements. The Plan will assist you and/or your legal counsel in
preparing the necessary order. Details are available from the Plan
Administrator.”

Comment:
The Plan did more than assist! It authored the whole domestic relations order and refused to change the incorrect parts that were pointed out by my lawyer. (My lawyer was in charge of the legal construction of the IBEW Local 332 pension plan in 1972, he is experienced.) The Plan’s DRO was proven wrong by the California Superior Court. The trustees think it is all my fault, reminds me of the three monkeys: See no Error (My written request for reimbursement and its appeal), Hear no error: (Don’t allow a face to face hearing as required) Speak no error: ( The trustees have their mouth-piece Kraw and Kraw for that.)

Another error by the Plan was qualifying the DRO they had constructed. After all it is up to the Plan to qualify (an ERISA mandate they denied in court) or send back any DRO they receive.

No wonder they spend over $23,000 per year for seminars and $91,562 in legal expenses.

"If you're ridding ahead of the herd, take a look back every now and then to make sure its still there." Will Rogers

Happy Trails

IBEW LOCAL 332 Pension Trust Financial Information

2011-09-07T01:14:00.000-07:00

Subject for this week:
IBEW LOCAL 332 Pension Trust financial report for 2009 Received 8-31-2011

$ 25,996,310 Total Benefit Payments

$ 306,671 Professional fees

$ 115,446 Contract administrator fees

$ 1,157,464 Investment advisory and management fees

$ 91,562 Legal fees

$ 16,174 Collections

$ 25,830 Auditing and accounting

$ 24,420 Plan Consultant

$ 70,414 Investing advisor

$ 72,000 Actuary

$ 950 Claims review

$ 90,858 Insurance

$ 34,189 Printing and Postage

$ 1,551 Dues and Subscriptions

$ 23,430 Educational Seminars and meetings

$ 27,515 Web Usage

$ 2,716 Miscellaneous expense.

$ 30,484,387 Increase in net Assets

$ 339,704,368 Net Assets Available for Benefits

Interesting Stock Holdings (out of many stocks held)

KBR Inc,

Aegean Marine Petroleum Network,

Government Bonds; U.S., Korea, Brazil

Hyundai Auto Receivables,

Nissan Auto Receivables

Rogers Cable Inc, Canada.

Valero Energy Corp

Halliburton Company Com.

B.P. PLC

I’m not too proud of owning some of these companies. But, I'm sure they are in my index fund.

The Trustees like to site the fund trust agreement when confronted with a problem. They seem to have forgotten that they have accepted all of the ERISA statutes into the trust.

See Page 2 of Trust

“Whereas, it is desired to establish and maintain a Trust Fund, which will conform to the applicable requirements of the Labor-Management Relations Act of 1947, as amended, the Employee Retirement Income Security Act of 1974, and any other applicable federal or state law, and comply with the conditions for qualification, exemption and full deductibility for state and federal income tax purposes under the pertinent provisions of the Internal Revenue Code, and corresponding provisions of California law, as either of the above may be amended from time to time.”

Comment: When they told the judge there was no provision for my complaint in the Plan: they forgot that ERISA is part of the plan. 29USC sec 1132(a)

"Never slap a man who's chewing tobacco" Will Rogers

Happy Trails

IBEW LOCAL 332 Pension Plan A SPD

2011-08-26T22:51:00.000-07:00

A comparison of the Summary Plan Document (the real Plan rules) and my Federal Court complaint seeking restitution. In plain talk: Plan rules the plan itself can't quit follow in a brotherly way.

SUMMARY PLAN DESCRIPTION
Page 5

D. Type of Plan:
Both Plans are pension Plans that provide benefits upon retirement and other
benefits incidental thereto. Part A is a defined Benefit plan and Part B is
a defined contribution plan.

COMMENT: Sort of right but mostly wrong. All deductions from member checks go into defined contribution Plans. The defined benefit plan was from 1962 to 1972, past service years for which no contributions were ever made.

Page 6

J. Participation, Eligibility and Benefits:

"Employees are entitled to participate in these Plans if they work under the collective
bargaining agreement described in item I above. There is no age or years of service
requirement for participation."

COMMENT: Age and years of service are hallmarks of a defined benefit plan. "J" admits these attributes do not exist in the IBEW LOCAL 332 Pension Plan. Therefore it just could be our plan is really a Defined Contribution Plan as outside experts have suggested. And,therefore using the "Lehman time rule" is unfair to some.

Page 7

Prudent action by Plan Fiduciaries

"In addition to creating rights for Participants, ERISA imposes duties upon the people who are responsible for the operation of the employee benefit plan. The people who operate your Plan, called "fiduciaries" of the Plan, have a duty to do so prudently and in the interest of you and other plan Participants and beneficiaries. No one, including your employer, your union, or any other person, may fire you or otherwise discriminate against you in any way to prevent you from obtaining a pension benefit or exercising your rights under ERISA."

COMMENT: If the fiduciaries were operating in my interest why did they err on the side of my ex-spouse. It was the Plan who authored the domestic relations order that was eventually reduced in my favor. One of my ERISA rights is easy access to Federal Court. Another is to seek restitution for injury. And the Supreme court ruled recently in LaRue v. DeWolff that a Participant injured due to fiduciary error has a right to restitution.

Pg. 7

Enforce your rights

"If your claim for a pension benefit is denied in whole or ignored, in whole or in part, you have a right to know why this was done, obtain copies of documents relating to the decision without charge, and to appeal any denial, all within certain time schedules."

The Plan is one up on me here, I paid them for a copy of my plan files.

"Under ERISA there are steps you can take to enforce the above rights. For instance, if you request a copy of Plan documents or the latest annual report from the Plan and do not receive them within thirty (30)days, you may file suit in a Federal court. In such a case, the court may require the Plan Administrator to provide the materials and pay you up to One Hundred and Ten Dollars ($110) a day until you receive the materials. If you have a claim for benefits that is denied or ignored, in whole or in part, you may file a suit in state or Federal Court. In addition, if you disagree with the Plan's decision or lack thereof concerning the qualified status of a domestic relations order, you may file suit in Federal Court........."

The first issue in this case was my right to file in Federal Court. The Plan said no to Federal Court and suggested State court as the alternative. The Plan has forgotten their roll as fiduciary is also to protect me and all plan participants and beneficiaries. Therefore, if I am correct in my allegations of Plan errors the Plan must correct itself for the good of all members not just because I was injured (although that's reason enough) but because others also may have been or could be injured.

Always drink upstream from the herd. Will Rogers (thanks Charley)

Happy Trails

IBEW Local 332 Pension Trust only stands behind written answers.

2011-08-24T21:53:00.000-07:00

2004 SUMMARY PLAN DESCRIPTION
Page 1

"Only the full Board is authorized to interpret the Plans. The Board has discretion to decide all questions about the Plans, including questions about your eligibility for benefits and the amount of any benefits payable to you. No individual trustee, employer, union representative or employee of the Plan Administrator has authority to interpret these Plans on behalf of the Board or to act as an agent of the Board. The Board also has discretion to make any factual determinations concerning your claim.

The Board of Trustees has authorized the Plan Administrator's Office to respond in writing to your written or oral questions. If you have an important question about your benefits, you should write to the Plan administrator's office for a definitive answer."

This is where the Board takes the responsibility. Certain written questions must be answered by the Board in thirty days or the Plan can be forced to pay penalties of $110 per day.(pg seven, ENFORCE YOUR RIGHTS). (Not so for oral questions.) In my case, where the Board is the only one protecting my benefit (no third party involved in the DRO), I have a constitutional right to a trial of our dispute. So, strictly speaking the Board is not the only interpreter of the Plans. ERISA also allows federal judges to qualify domestic relations orders that are not agreed to by both the Plan and the Participant. 29 USC sec. 1056

HINT: The Plan is NOT the union, treat it like a business, they surely act like one. If you have a problem complain in writing to Judy Sargent. I spoke to the Business Manager and kept him informed but Judy is the go to person. And letters to her must be answered within 30 days and some have required reply subjects such as a hearing denial . It has been about 1800 days since my correction of the Plan QDRO took place so I had best go back and look for unanswered letters. 1800 X 110 = $198,000 per question.

By the way Judy has the 2009 plan financial statement (see earlier blog) waiting for me in PDF which will save me the 25 cents per copy fee.

Happy Trails

Are Pension Plan Fiduciaries the Best of the Best?

2011-08-23T17:11:00.000-07:00

Today I checked the case docket as I do each week. If something should happen it is my responsibility to know about it. And, the place to find out is the court case docket that is updated by the clerk. This week no changes and none are expected until December.

My last post seemed popular so I'll offer some comparisons with my case and the Summary Plan Document. The SPD is the final word on the Plan and its rules and procedures. The SPD is written in 6Th grade English so that it can be understood by members without legal degrees. Lets start with a Plan document (2008 SPD) filed by the Plan at the very start of the case.

"Section 16. "Amendments". This Plan of retirement benefits, maintained by the I.B.E.W. Local 332 Pension Trust Fund has been amended from time to time. The Plan so amended shall hereafter be evidenced by the Plan of retirement benefits contained in this article and in the following pages as may be further amended from time to time. This restated plan shall not apply to former Participants who retired or otherwise terminated their participation under the prior Plan unless
this Plan or subsequent amendments indicate otherwise. The benefits or credits earned by such former Participant shall continue to be governed by the provisions of the plan in effect at the time the Participant earned the benefits or credits. In addition, any break-in-service shall be covered by the break-in-service rule in effect at the time of the break would have occurred under the rule rather than the rule at the time of retirement."

COMMENT: The SPD submitted to the court by the Plan was dated 2008. My retirement was in 2007 and therefore the proper SPD is 2004. The Plan is not always on the correct page.

WHO PUTS THE "Q" ON THE "DRO"

2011-08-18T00:48:00.000-07:00

Here are some direct contrasts between what the IBEW Local 332 Pension Plan has in their benefits web page and how it fit with my benefit package.

QUALIFIED DOMESTIC RELATIONS ORDERS

"The Plan has the authority to determine whether a particular domestic relations order in in fact a QDRO. Parties to dissolution should communicate with the plan before the order is finalized to avoid issuance of a non qualified order with which the plan cannot comply."

My Comments:
The Plan denied at the last hearing their authority to determine whether a DRO can become a QDRO.
We did submit the draft to the plan and told them it was improper due to alt-payee benefits. They approved the draft instead of fixing it. The California Superior Court over-ruled the Plan and lowered the benefit. The DRO was written by the Plan, unchanged by the Plan, and then turned down by the court. The Plans new QDRO has the same problems only lower benefit errors.

"Upon receipt of a court order, the plan administer will analyze its provisions to determine whether it is qualified and will advise the parties of its decision."

Comment:
Evidence from the Plan own instructions that they screwed up their court testimony on a very important point.

On to the " IBEW LOCAL 332 PENSION PLAN, PARTS A AND B
Rules and procedure for administering Qualified Domestic Relations Orders (QDRO's)

A. QDRO REQUIREMENTS

2. Prohibited Provisions. The order will fail to be a QDRO if it does any of the following:
a. Requires the Plan to provide any type or form of benefit, or any payment
option, not other wise provided in the Plan;
b. Requires the Plan to provide increased benefits;
c. Requires the payment of benefits to an alternate payee that are required
paid to another alternate payee under a prior QDRO."

Comments:
These provisions are from ERISA law. 29 USC 1056(d)(3)(D). My ex was awarded $37 per year from 1964-73: this period of time has a maximum award of $10 per year in the Plan Document. For the period of the marriage the Plan awarded her more benefits than were earned during the marriage. Justice Mosk in Lehman v. Lehman called this wrong five times. Lehman v Lehman is the Plan's formula for this whole debacle.

C. EMPLOYEE/SPOUSE RESPONSIBILITY TO SEND COURT ORDER TO PLAN
Under Federal law, a former spouse has no enforceable right to benefits under either of these Plans until the Plan is served with a final order signed or stamped by the judge and filed with the court clerk, which meets the requirements described above. ..................

Comment: My ex contacted the Plan, they did the paper work long before it was known to exist by me or the court.

D. "PROCEDURE FOR HANDLING COURT ORDERS"
2. "Notices to Participant and Alternate Payee. Within a reasonable period after receipt of a domestic relations order creating rights for an alternate payee, the Plan will notify the participant and alternate payee whether the order is a QDRO and, if not, the reason(s) why it fails to qualify."

Comment: more documentation that the Plan forgot their job when at the hearing they testified a lack of authority when dealing with QDRO's.

3. "Rejection of Order. If either Plan rejects the order, the rejection notice will identify the deficit(s) in the order. The Participant or alternate payee may correct the defects and submit a revised order, or appeal from the rejection decision using the Plan's appeal procedure. ................."

Comment: It was very disappointing to have the Board of Trustees reject my appeal request. The appeal procedure already exists.

7. "Trustee Discretion. The trustees or their delegates have full discretion to determine whether either Plan should comply with a proposed final order."

Comment: A little error here. A Federal Court judge can QUALIFY a DRO over the objections of the Board of Trustees. Only Federal Judges and the Trustees have qualification rights, state Judges can only order Non-qualified Domestic Relations Orders.

8. "Policy Prohibiting Plan Signature of Order." "QDRO's shall not be signed by any Plan representative. The purpose of this policy is to avoid any suggestion that the Plan has evaluated or endorsed the division of the benefits in any manner except the limited review described above."

Comment:
This may be true. The Plan admitted authoring this DRO/QDRO but I'm not sure they signed it.
However their authorship is surely an evaluation and endorsement. And contrary to their own policy.

E. SAMPLE QDRO

Comment:
The sample QDRO is never correct. The Plan has included a disclaimer that states the DRO may not be correct but the truth is it will never be correct. The sample DRO (it cannot become a QDRO until the Plan approves it) is designed for "defined benefit" plans that have the same benefit for every year worked (see Lehman v Lehman reference above). What are the chances that an electrician will make the same pension contribution each year of a marriage? The IBEW LOCAL 332 PENSION PLAN A is a defined contribution plan where averaging of benefits (as shown in the sample QDRO) will move money from year to year which Justice Mosk was very careful to declare unlawful.

Conclusion: The Plan denied being responsible for qualifying domestic relations orders in Federal Court but seem to state in their own document that it is only the Plan that has qualification rights. Perhaps they have other confused conclusions as well.

Happy Trails

Jim's Money is gone thanks to IBEW LOCAL 332 PENSION A fiduciaries

2011-08-03T20:14:00.000-07:00

I have a hankerin to get back to the California case of Lehman v Lehman which the Pension Plan uses to justify my lack of a proper pension benefit.
The plan reference is online at http://ibew332benefits.com/ . Page four of IBEW LOCAL 332 PENSION PLAN, PARTS A AND B third line from the bottom references Lehman v Lehman.

Here is the opening statement by Justice Mosk in the Lehman opinion.
We granted review in this cause in order to address an important question relating to the characterization of retirement benefits as community or separate property under a so-called “defined benefit retirement plan,” which specifies payments in advance in accordance with a formula that comprises factors such as final compensation, age, length of service, and a per-service-year-multiplier: Does a nonemployee spouse who owns a community property interest in an employee spouses retirement benefits under such a plan own a community property interest in the retirement benefits as enhanced? As we shall explain, we conclude the answer is. Yes.

Differences:
1. Final Compensation is not a factor in the IBEW Plan A.
2. Age is only a factor for early retirement in our plan the benefit is based on yearly employee contributions.
3. Length of service has little to do with the IBEW benefit, the major component is employee dollars contributed.
4. We do not have a “per-service-year-multiplier”.

Therefore a “Defined Benefit Plan” and our “Defined Contribution Plan” are very different.

Justice Mosk’s opinion is about nine pages. Earlier I noted that he mentioned “accrues a right to property during marriage before separation, the property in question is a community asset.” six times. I erred, it is only stated five times. My interpretation: She can’t get more than half the amount contributed during the marriage. The Plan interpretation (reversed on appeal) gave her more than the whole of the amount contributed during the marriage.

Mosk specifically states that the case in point (Lehman v Lehman) is a “defined benefit retirement plan”, the IBEW LOCAL 332 Plan is a “defined contribution” and the difference is not allowed for by our fiduciaries. According to Mosk the time rule used in the Lehman case is not unreasonable when the “amount of the retirement benefits is substantially related to the number of years of service.” Local 332 benefits are not tied to years but to contributions. Ask the guys whose contributions didn’t make it to the fund if they received any credit for the years of contributions not credited.

"Lehman" paragraph nine states: The superior court must apportion an employee spouse’s retirement benefits between the community property interest of the employee spouse and nonemployee spouse and any separate property interest of the employee spouse alone.”….. “It has discretion in the choice of methods.”……” Such methods include the time rule, which is apparently the one that is employed most frequently.”… “whatever the method that it may use, however, the superior court must arrive at a result that is reasonable and fairly representative of the relative contributions of the community and separate estates.’” My emphases.

Here is how it worked in my case. The Plan did the research and made the decisions and the nonemployee spouse presented the Plan documents to the court. The court accepted them and gave them back to the Plan who has the duty per ERISA (they denied that duty to the judge) to double check the numbers for both spouses. ERISA forces the plan to follow state community property law.

Miscellaneous:

One more jab at the Plan fiduciaries. The IBEW 332 site has a Membership Benefits area on the left. Click it and go to benefits Web Page. Then to Pension / defined benefit (Part A).
Frequently Asked Questions
How much is normal retirements benefits?
1. All years of credited past service monthly benefit plus
2. All years of credited future service monthly benefit.
NOT FOR ME: Hope your benefit is better than mine!!

Happy Trails
go to; http://ibew332benefits.com/
click; pension on the left side
click; forms
click; Qualified Domestic Relations Order (information and sample)

IBEW Local 332 Pension Plan A doesn't know their own rules

2011-07-21T15:50:00.000-07:00

Well here it is July 20th. Won’t be long and the appeals court will rule whether or not my complaint will go back to Federal Court. (Actually there is another appeal available.) Originally the Plan suggested California was the proper court even though the Summary Plan Description, our rule book, is very specific that a Participant must complain in federal court.

My gripe is with the domestic relations order provided my first ex-wife by the plan. The Plan calculated her benefit too high. The Federal Judge at the first hearing asked them to explain: their answer included a conspiracy between the opposing parties. Kind of sounded like the Presidents birth certificate all over again. However plan errors did cost me about $40,000 and my monthly benefit still does not meet the requirements in the Summary Plan Description.

Let me try to be very simple. Say my brother is an airplane mechanic. I install a 110 volt outlet for his newly purchased clothes dryer which is yet to arrive. The new dryer comes and is not gas as I assumed but electric. After waiting six months to dry his clothes he hires someone to install a 220 volt outlet. Obviously I should have gotten my tools together and fixed the error long ago, but do I owe him the cost of the new outlet? After all it was a brotherly promise and I am the electrical expert who should know that brothers dryer (if gas) probably would have worked on the existing washer circuit. Therefore if he needed power it would almost always be for an electric dryer.

My point being: the Plan has been very obtuse, for an expert, about their domestic relations order.
1. According to the formula (authored by the Plan) used for ex-one I was to receive none of the benefits earned during the marriage. Instead, for the time of the marriage my benefit was a negative amount. In the Plan benefits page they sight the California case of Lehman v Lehman for guidance. Justice Mosk mentions at least six times in that case opinion: the marital benefits must be split 50/50 for the time of the marriage.
2. The Plan had in their possession the qualified domestic relations order of my second wife at the time they were formulating the rejected domestic relations order. (Yes, the second wife got her order in first.) NOTE! A “Qualified” order is one that has been approved by the Plan (So, they had to know about it, they approved it.) According to the Plan written QDRO instructions; all the wives QROS must be coordinated so that the Participant does not get an inadequate monthly benefit.
3. Along with the second wife’s QDRO I received from the Plan a letter confirming that I would receive 50% of the final benefit allocation, I Don’t.
4. The Plan formula, #1 above, is based on a defined benefit plan. Our Plan has been a “Defined Contribution Plan” since the first IBEW Local 332 electrician received a deduction from a check. Only the years 1962 –1973 are in the “defined benefit” category at $10 per month.

On July 1st I e-mailed a request for a copy of the annual report to Judy Sargent. Judy contacted me today. For .25 per page the 2009 report is ready but not the 2010 report.

Happy Trails

IBEW Local 332 Pension Plan A ERISA ERROR

2011-07-09T22:45:00.000-07:00

On my desk is the Annual Funding Notice for IBEW Local 332 Pension Plan Part A. I’ve been wanting my own personal copy of the Annual Report so went to the Plan Site as directed: http://ibew332benefits.com/privacy.html but could not get it to work for me. So I sent an email to UAS and Judy Sargent with my request for a copy. Could be that participants are not included in those able to enter the proper part of the site.

I noticed in the "Participant Information" that we now have 1,380 people receiving benefits. A 50% divorce rate (national average?) would mean about 690 DROs for divorced electricians spouses have been turned into QDROs through the ERISA power of the Plan. If half of the 690 remarried we could have 345 or more QDROs that short benefits for one of the three people involved (electrician and two spouses, using the plan DRO given my ex by the Plan as a standard). In my case, in which the State of California increased my benefits (over ruled the Plan formula), all of the individuals were originally receiving the wrong benefits. Since I was receiving too little I squawked. My ex-wife, who is still receiving too much, was quiet. My second ex-wife who received too little (but did not know it) for three years was happy to have the $29,137.50 reimbursement payment they sent her and the doubling of her monthly benefit. She was totally disabled at the time.

My point is: if my case is “one of a kind” we should all be told. If other beneficiaries are getting the wrong benefit they should be notified.

So it seems, worst case, the Plan may have screwed up a lot of beneficiaries. That’s a lot of fixing to do if the amount, as in my second wifes case, is $29,000. Possible but probably not.

Win, loose or draw on this Federal Court Case; the Plan has not even acknowledged that the State Court lowered my wifes benefit (calculated and qualified by the Plan) and raised mine. They think there was a conspiracy! It's on the record from the last hearing.

Only five months until the appeal hearing

Happy Trails

IBEW Local 332 Pension Plan A Federal Court Case

2011-06-26T22:14:00.000-07:00

I just finished my periodic check of the Federal Court Docket of my appeal and all is well and unchanged. A clerk at the clerk's office informed me a month or so ago that nothing would happen until December but is still my responsibility to check the docket for changes. He suggested that Pro-se cases never require hearings but that is not actually in the rule book.

I did check the Plan Benefits site and it was either there or a QDRO site they directed me to that stated our plan is a "Defined Benefit Plan". Well it does say that on the early Document pages BUT after 1973 it became a "Defined Contribution Plan" because of its structure. You can call a lion a cat but don't get in a cage with it. From 1963 to 1973 the plan had a defined benefit max of $10 per month. That was pretty generous for a plan with zero money, no contributions were received from employers or employees until 1973. After contributions started going into the individual contribution accounts (the very definition of a Defined Contribution) the Plan used the investment revenue to pick up the $10 per month part for us old guys. I think the first contributions were ten cents an hour so it must have taken a while to get the whole thing in balance.

Not everything is as we might think, for instance getting a federal appeal heard in six months is fast. And depending on the Pension Plan to know what we expected in 1972 and to remember what they promised is risky. In my case about $40,000 risky.

Happy Trails

ERRORS by NECA and IBEW TRUSTEES

2011-06-06T18:27:00.000-07:00

Wow, here we are in June already. Anyway my thought is to expand on the last blog.

When the trustees turned down my request for reimbursement of expenses
caused by their errors my attorney apologized to me. He was surprised that the pension plan did not take responsibility. Normally when an entity or business makes an error they are responsible for the consequences. In this case about $40,000.00. But this is ERISA and there had been no way for an individual plan member to collect. A class action suit was possible but that requires more than one participant.

There had been however a law suit close to this category in the Supreme Court, LaRue v DeWolff. LaRue had sued his plan for losses, the District Court had ruled against him, his appeal went here and there and finally to the Supreme Court. The Supreme Court ruled that a single participant in a Defined Contribution plan, such as ours, has the right to seek reimbursement for plan error. They ruled the law had been written before Defined Contribution Plans came along and it needed to be changed. The old law was based on Defined Benefit Plans. If you know a PG&E worker they used to have Defined Benefit Plans that allow a certain amount of money for each year of worker service. Work 30 years, retire at $4,000 per month get $48,000 per year. This type of retirement is paid from one huge account saved up by the company for retirees.

The IBEW LOCAL 332 Pension Plan A has an account for each individual participant containing only the money contributed per working hour. The Supreme Court ruled that the individual 332 account is legally the same as the huge company account so therefore each electrician has the same rights as a class of workers in the other system.

The error made by the Plan was in “qualifying” the ex-wife’s DRO. They have two choices, qualify or don’t qualify. They qualified the order causing my pension to be short. My attorney got her pension reduced in state court but it was not cheap or fair for me to pay to fix a Plan error. And the state still granted her more than the Plan should qualify. (Yes, they did it twice. but it was their own order they were inspecting, could be they were prejudiced.) They were in a catch-22. ERISA specifically gives the Plan a duty to refuse a DRO that is not correct.

According to ERISA a DRO has certain obligations it must meet before qualification. I have accused the Plan of improper qualification based on ERISA criteria and therefore I have filed a complaint in Federal Court for reimbursement. I’ve checked about 300 past cases from the 9th District court and found none that contain a qualification error by a Pension Plan. There does not seem to be any case law to guide the court but here is a very specific ERISA rule that has been overlooked. 29 USC sec1056(d)(3)(D). The Plan is not allowed to increase the non-employee benefit above the Plan Document guidelines. And, the Plan is only allowed to qualify a DRO that is in compliance with state community property law. (Also in 1056)

Happy Trails

TRUTH vs POWER, or IBEW PENSION v SPARKEY

2011-05-29T13:30:00.000-07:00

Another Memorial day and my blog goes on. Just goes to show that mere facts and logic can’t make a Pension Plan do what is right. Even the reversal of their own DRO by a court of law didn’t convince them. Actually it is not known what they are thinking. Many organizations carry this kind of complaint on and on because many complaintents get tired of the fight. Not the kind of thing one would expect from their “brothers”. After all is said and done the board of trustees is speaking for the membership.

The Pension Plan authored the DRO, which was ultimately changed in my favor by the California Superior Court because it was overpaying the ex-spouse. When told they had messed up by the Federal Court judge they had a mumble jumble answer with no meaning. (Its public record.)

The Pension Plan listed as a reason for complaint disqualification; I had not complained about the QDROs in my brief. My last appeal brief cited the exact phrases used to show my dissatisfaction with the very same points they presented. Perhaps they don’t read so well.

This is actually a very new problem for the plan. Until a few years ago this kind of complaint was not allowed in Federal court. It was the Supreme Court that changed the rules and the Plan that did not change its DRO authoring ways. The Supreme Court did not change ERISA law. The court only allowed law-suits for this kind of error. Who knows how many of these errors exist in our participants benefits.

One easy to understand point of ERISA law is DRO (domestic relations order) qualification. In order for the Plan to pay benefits the Plan must “qualify” the DRO. The rules for qualification are on the Plans web-site. However the trustees (through their delegate attorney) told the judge, at our last hearing, that qualification is the duty of the state of California. WRONG
Good old federal law 29U.S. C. sec.1056 (d)(3)(D) has been there since the start but the Judge relied on the experts and the experts have hardly ever been challenged.

Telling TRUTH to power works, remember Martin Luther King, but the ride can be long and arduous.

I'm writing from Virginia where they are celebrating Memorial Day with gusto. Perhaps being so close to the battlefields of the Civil War gives them a deeper appreciation for this day than we seem to have in California.

Happy Trails

IBEW LOCAL 332 PENSION PLAN A ACCOUNTABILITY

2011-05-20T06:07:00.000-07:00

What with local union elections coming up we will have at least one new person on the pension plan board of trustees. I hope the new person is interested enough to look into trustee accountability. (All members should know their responsibilities.) Perhaps let us know what the plan expenses are in percentage terms, so they can be compared with other plans. What do we pay for investing services? I have found some guidelines on the internet but can’t really tell what we are paying. I did calculate once that the Plan pays about $40,000.00 per year for services to my account. (seems expensive)

Perhaps the board can release redacted minutes that at least show the times, location and attendance of their meetings. Maybe this kind of stuff is in plain sight and I don’t know where to look. If so, perhaps someone could take the trouble to let me know. Even hobby clubs make the board minutes accessible to members. My hobby dues are $16 per month and receive more scrutiny than our pension contributions from members.

I’ve recently been accused of playing the “martyrs role” with this lawsuit and to that I answer. Just because someone is a martyr does not mean they are wrong. Lawyers pretty much agree that anyone filing a lawsuit without a lawyer is playing the martyr or at the very least has a fool for a client. I can’t argue with either statement but the lawsuit facts are in my appeals court brief and the trustees did not deny them in their answer.

Remember, in this kind of case the trustee attorney is also responsible to me as a participant whom the trustees are obligated to protect in their fiduciary capacity. The attorney is a delegate of the trustees and carries their identical responsibilities. The trusties are responsible for the handling of my account and are not allowed to harm me in any way, and their attorney carries that same burden. Therefore by making a false statement before the judge the attorney may have caused a fiduciary breach by the trustee

It is the trustees who are ultimately responsible for the original division of my account that left me with no pension from the marital years with my first wife.

Happy trails

Bankruptcy is more than a "BUSINESS DECISION"

2011-04-28T01:52:00.000-07:00

A clerk at the court of appeals has confirmed the six-month backlog of appeals, so my appeal is off the front burner. And because I’m not a lawyer an oral argument would be very rare.

All the big news in Washington has to do with the deficit. What about the insurance company profit on health policies? There are negotiations right now about whether or not the agent fees will be part of the 15% of profit allowed the insurance companies in the new health bill. If the fee is not part of the 15% the little people will get to pay it. The deficit debate is camouflaging an issue with real consequences to most of us.

Has everyone forgotten the “good old days” when you never knew what injury or accident would turn your life upside down because of the medical bills and lost pay? The pain and injury is bad enough. My first child was born without medical insurance. The cost was about $500 for the doctor (its been a while) and the same for the hospital. My pay was $300 per month.

In this country we force hospitals to provide medical care and we therefore should expect to be paying for it. It is past time to do the right thing and furnish medical care to everyone.

Some loose facts about the U.S. Government wealth.
Total assets of the U. S. Government $ 2.7 trillion
Money collected in 2008 $ 2.5 billion
Government value based on cash flow $ 182 trillion
Deficit $ 15.5 trillion

Years ago I asked my Dad why he was a Democrat. He left the farm in 1932. His answer: What have the Republicans ever done for me?

Well, for me, I got some kind of a prescription deal I’ve yet to use. But it didn’t get paid for like my Social Security and Medicare.

Perhaps the democrats should counter the oppositions hard nosed political tactics with some of their own.

Lets limit insurance profit to 5% because insurance is a social necessity.

Lets limit petroleum companies to 5% profit because oil is removed from the nations underground not manufactured.

Everyone, including corporations, benefits from our government. As a matter of fact many of us believe that taxes are one of the obligations of freedom. Why not stop non-tax paying entities (i.e. G.E.) from giving bonuses, stock options, dividends and such if they cannot afford to pay a reasonable federal tax. Seems as though they should get with it and pull their weight like the rest of us.

Donald Trump said today that his “bankruptcy” was a business decision to lower debt. Tell that to the people who got less than they were owed for the work they had furnished. When it happened to me it meant an S.O.B. was taking advantage of a “business practice” to cheat an honest person. Bad morals cannot be explained away as just a business decision. Unless the explainer is a fraud.

Happy Trails

Justice Cardozo on Fiduciary Duty, Justice Mosk on Benefits earned during a marriage.

2011-04-19T20:56:00.000-07:00

I’m back this week with obvious comments about the Plan and Fiduciary duty.

The trustees of the Plan include a NECA chapter manager and three representatives of NECA contractors. Also the IBEW Local 332 President, Business Manager and two electricians appointed by the local president are trustees. Two of the management trustees have their name in common with their company name. These are responsible people. Do they really think that the pension plan extended me the “finest loyalty” their fiduciary responsibility requires? When Justice Cardozo wrote of “not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior” the justice meant the Plan is required to go out of their way to make sure my benefit is proper and protected. If you are in the plan they should be looking to protect your benefit as well. Actually they went out of their way to lower my benefit. They volunteered to author the screwed up order, they were not required to get involved. Somebody forgot to check my community property rights before authoring the order that gave my ex-spouse more benefits than earned in total for both of us during the marriage. California Justice Mosk warned against this several times in the Lehman v Lehman case. (earliar blog)

When the plan found out I was disputing the original “order” authored by the plan did any trustee ask for explanation? I know that one labor representative on the board was aware because I kept him informed. I know that Kraw and Kraw was aware because I have confirming documents. Kraw and Kraw are the legal delegates of the board and therefore their word carries the same fiduciary responsibility as the board. If K&K made an error the trustees are responsible for it.

When the Plan’s very own “order” was reversed by the California Superior Court did it not make the trustees wonder about their fiduciary duty to whom ever the participant might be? Are there other screwed up benefits and fiduciary lapses that the trustees do not know about? I have an interesting document showing that the original formula for my benefit would have shorted my ex-wives and enhanced my benefit to the tune of over $200 per month. Was that a one-time error in the plan sample QDRO or are there spouses who are not receiving their rightful benefits?

Why is the plan still using the same sample plan document and “Brown Formula” that the Superior Court refused to accept in the published case of Gray v Gray?

Nothing has changed on the case docket this week, all the briefs are filed and ready for the three judges.

Happy Trails

IBEW- NECA versus ERISA

2011-04-11T23:14:00.000-07:00

According to the calendar this pension hobby started in July of 2009, so its been a while and gives credence to the Plan decision not to negotiate a settlement. As Archie used to say I could have the “big one” at any time.

As a Pro se my experience with procedure in a court case is nil. And procedure is the first battle to be fought in a court proceeding. I thought that going to the judge informing him of how I had been injured would be 90% of the challenge. After that my check would be in the mail.

That was the dream and here is the motivation. Many times in my life I’ve suffered minor losses that were not worth my time and energy to fix. My friend had a classic, a ticket by the San Jose police for having a “for sale” sign in his car parked on the street. Big stinking deal, but at the time it was the law (it is no longer). He paid up as I would have. An hourly worker cannot justify the cost of half a days pay for a $50 ticket even if it is not just. But the times they have changed, no kids to feed or clothe and if need be I can load my stuff into a shopping cart and move outdoors. I just never did cotton to getting kicked around by anyone. Let alone an organization that has accepted my dues and pension contributions since dirt was invented.

Back a few years (1989) I took a construction law class as part of the San Jose State estimating certification course. Every one in the class was some kind of construction person but very few (myself included) could quite get a handle on the thinking necessary. We were problem solvers and project doers. Our minds are “right verses wrong” but a legal mind is different. A not too subtle “where are the mistakes” thinking process is necessary for a lawyer. What does that mean? It means that all mistakes or possible mistakes are examined, not just the ones that matter. Justice is very thorough. Even though the judge expressed sympathy for my unnecessary expenses he accepted the Pension statement that they could not have done differently.

So here we are waiting for the appeals court to check out the Plans story.

The Trustees are responsible for the Plan participants as Fiduciaries. In court they have delegated their Fiduciary responsibility to the Kraw & Kraw law firm. The same responsibility exists for Kraw & Kraw, just as if they were the trustees themselves standing beside me, as the lawyers were at the hearings. When the lawyers said they could not fix the Plan error it is as if the trustees themselves were speaking.

The most famous description of Fiduciary Duty is that of Justice Cardozo in Meinhard v. Salmon. Justice Cordozo was appointed to the United States Supreme Court by President Hoover.

“Joint adventurers, like copartners, owe to one another, while the enterprise continues, the duty of the finest loyalty. Many forms of conduct permissible in a workaday world for those acts at arm’s length, are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the “disintegrating erosion” of particular exceptions (citation omitted). Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court,”

It is a fiduciary error, in this instance, to give the non-employee spouse more benefits from the marriage than given to the participant. ERISA demands the Plan uphold the California community property law that the Plan used in the construction of the original order. ERISA also demands that the Plan with-hold qualification of any domestic relations order (the last amended order) that does not uphold participant community property rights or the rights set forth in the Summary Plan Directive.

The Plan had the duty and the power to protect my benefits but failed.
If you are a divorced electrician this could be your problem.

Happy Trails.

NECA-IBEW Trustees vs Community Property

2011-04-08T11:40:00.000-07:00

This week I watched videos of Federal Appeals Court proceedings in San Francisco. They didn’t look any more daunting than the San Jose hearings I’ve attended except there are three judges instead of one. I’m sure they will view my little case without need of any explanation. If not they will give six weeks of notice for preparation.

My friend has been after me to come up with a concise explanation of my beef with the pension plan. It seems that ERISA 502(A)(3) and 29USC sec. 1056(d)(3)(D) errors are pretty boring. But all of us divorced people know about community property laws. In a nut shell: the plan has this complicated “Lehman” exercise that somehow comes out of the “Brown Formula” for electricians ex-spouses. They have never explained why it was necessary to switch to it, but, I suspect lawyers with a cost plus contract. Anyway when they used the new formula for the “X” my benefit shrank below my community property requirements. My first clue was an old letter (September 29, 1999) from Kraw & Kraw attorneys assuring my benefit to be at least 50%. They were writing on behalf of the IBEW Plan trustees.

“Dear Mr. Gray:

This letter responds to your note dated September 15, 1999 regarding the rights of any future wives. If you remarry and then obtain a divorce, your former spouse could obtain a QDRO awarding her a portion of the benefit. Under California community property law this typically would be 50% of the benefits earned during that marriage, and therefore would not overlap with the benefits being divided now.

The plan has no knowledge of any individual named --------- --------. If she is a former spouse, she theoretically could obtain a QDRO awarding her 50% of the benefits earned during your marriage…….”

I guess the bottom line is that the Plan failed to perform their ERISA duty of ensuring a participant receive the community property share of the marital pension benefits.

One note of amazement: How could General Electric Corp. pay less tax than me?

Happy Trails.

My NECA and IBEW Pension Plan Hobby

2011-04-01T16:36:00.000-07:00

Last week I wrote “Pension Plan Denies 1056 Duty”. Here is my explanation.

29 United States Code sec 1056 is an ERISA law. It can be read on-line at BenefitsLink.com. The law is written in outline form.

Section 1056 is “Form and payment of benefits”.

1056 (d) is “Assignment and alienation of plan benefits."
One type of alienation is a QDRO

1056(d)(3)(A) “Paragraph (1) shall apply to the creation, assignment or recognition of a right to any benefit payable with respect to a participant pursuant to a domestic relations order,” 1056(d)(3)(B)(ii)(II) is “made pursuant to a state domestic relations law (including a community property law).”
The QDRO author should not forget the participant and the ex-spouse both have community property rights.

1056(d)(3)(D) A domestic relations order meets the requirements of this subparagraph only if such order- - (i) “does not require a plan to provide any type or form of benefit, or any option, not otherwise provided under the plan,” (ii) “does not require the plan to provide increased benefits (determined on the basis of actuarial value), and”
In other words if the Plan Document allows $10 per month do not give $37 per month. This section of ERISA tells us a couple if things. One, the plan cannot completely ignore the Summary Plan Directive which is set up to let the participants know their rights. Two, no one should receive a benefit larger than the plan specifies for any year. When the plan improperly concocted the first DRO in 2005 the state was required to work within the ERISA laws even when given wrong information by an ERISA pension plan (IBEW 332 pension trust A.) And, therefore appeal of the benefit was upheld.

1056(d)(3)(G)(i) “In the case of any domestic relations order received by a plan- - (I) the Plan administrator shall promptly notify the participant and each alternate payee of the receipt of such order and the plan’s procedures for determining the qualified status of domestic relations orders, and (II) Within a reasonable time period after receipt of such order, the plan administrator shall determine whether such order is a qualified domestic relations order and notify the participant and each alternate payee of such determination.”
I and II above clearly puts the duty of qualification on the pension plan, they were the only one in this case who could declare the state DRO a QDRO. This is the point I am trying to explain to the court. One, the plan incorrectly authored the order. Two, alt-payee received order from the plan and presented it to the state. Three, the state approved the order as written by the Plan, not a lawyer or other neutral party. Four, the state passed the (now) domestic relations order back to the plan for qualification. Five, the plan should have refused to qualify the DRO because of “increased benefits” and sent it back to the state without qualification. At five, it is the Plan’s duty to protect the participant because increased benefits will lower the electrician’s pension. At the time of our last hearing the plan did not know their responsibility according to their testimony.

“1056(d)(3)(H)(i) During any period in which the issue of whether a domestic relations order is a qualified domestic relations order is being determined (by the plan administrator, by a court of competent jurisdiction, or otherwise)”,
Contrary to what the plan told the court, it is obviously the plan duty to check state domestic relations orders for qualification.

The Plan sites the marriage of Blue as case law. Here are a couple of things the Plan and I disagree on in Blue. The Plan says that Lehman must be followed in California for spousal QDROs. Blue (cited by the plan) states: “Even state rules that establish rights of spouses….. must yield to the terms of the plan.” And: “A state court’s domestic relations order overrides the terms of the plan if it meets seven criteria laid down in sec. 1056(d)(3)(C) and (D).” But, because of the increased benefits appropriated in the state domestic relations order (authored by the Plan) it does not meet the criteria of 1056(d)(3)(D)(i) and (ii) and is therefore not applicable to the Plan’s defense.

The plan has another problem with their Lehman theory. According to Blue: “a pension trust is not a party to the litigation that produces the QDRO and is not bound by the order under doctrines of preclusion (res judicata). The fund is just a stakeholder, a source of wealth to which the holder of judgment may turn for satisfaction.” However, the plan became a party to the litigation when they authored the original order. Then they were in a pickle when it came to qualification. It did not qualify, as the state later upheld, but if the plan refused qualification they would be admitting their own order was bad. They were in a catch 22 as the order author. And their involvement casts a shadow on the Blue case law being applicable, do to the plan’s intervention, without participant approval and with plan’s total knowledge of the state marital contract and circumstances.

Happy Trails

332 Pension Plan Denies 29U.S.C sec.1056(d)(3)(D) Duty

2011-03-24T14:42:00.000-07:00

Another angle on what went wrong with my pension.

The Plan, probably on the advise of their legal folks, approved changing the Summary Plan Document formula from what the members voted on to the “Lehman” calculation for ex-wives. So what they did in my case was figure what “Lehman” suggested for the spouses but not compare it with what the real Plan demands for the electricians. Evidently this is some administrative way out of changing the Plan document, I’m not privy to the why’s.

In the explanation given they sited “Lehman” for spouses and explained that it is approved by the California Supreme Court. Well, it was approved by the court for defined benefit plans like P.G. and E. Our plan is not the same as P.G.&E's. After 1972 our plan is not a defined benefit but a defined contribution plan. The court noted in their Lehman analysis that their formula may not be right for our kind of plan.

Before 1972 we did not have a plan, but 62-72 was grand-fathered in for the benefit of the old timers (that’s me) at the start in 1973. What did I get for those ten years? A minus pension!!! For that time period they awarded my ex $370 per month. The account allows $100 per month. I was supposed to pay $270 from my half to help her. My half for that period is $100; you do the math.

Another interesting thing popped up that I’d rather not know about. Using my benefits as an example; the original Plan calculation was off by $213 in my favor. So what happens if some spouse finds they have been shorted? I'm not the only divorced participant. You do the conjecturing.

The Plan has also stated that they can’t change the state approved domestic relations order and cannot look into it because of ERISA law. Guess who authored the state approved domestic relations order. Yes, it was the Plan. They did the state side of the order and then did the ERISA inspection. After spending a lot of money I got the state to change the order. The ex-wife benefit was too high. But the plan still denies being able to change their mistake that the state recognized. At this time my pension is still short and therefore I’m asking for future benefits along with costs.

The Plan has the responsibility of making sure the state does not overpay the alternate-payee. ERISA 29USC sec. 1056(d)(3)(D). They denied their duty to the Federal District Judge and testified they could do nothing and therefore I have no cause for relief. One of my big points in the latest brief is the increased benefit she was awarded for 1963-73. My ex-wife received $37 per month for each year we were married from 1963-1972. The Plan is very specific that those years cannot pay more than $10 per month. I get $10 per month for that period of time.

The Plan has forgotten that a domestic relations order can be calculated by just about anyone. But to be qualified, as real and true, there are only two ways. The most common is by the Plan who will be responsible for the benefits; IBEW LOCAL 332 PENSION TRUST A. Or a Federal Judge; no Federal Judge has touched this QDRO, yet. It is the Plan that puts the “Q” and the “DRO” together to get a QDRO. Not the state and not the alt-payee or the participant. If the Plan goofed the calculation in favor of the ex-wife they have a Fiduciary duty problem according to ERISA 1104. The plans sole reason for existing is to provide benefits for the participant (my paraphrase).

Happy Trails

pension restitution hobby

2011-03-18T13:08:00.000-07:00

I delivered the "Reply Brief" to the appeals court Tuesday. It was a fairly nice retirement day. I went to IHOP for breakfast, they are close to the copy place which doesn’t open until eight a. m. Went to the copy store and made my twelve copies complete with gray cover. Each type of brief needs the proper colored cover. I noticed the Plan’s last brief was without a colored cover but their procedure is different than mine. They file electronically. Next was delivery to Kraw and Kraw, in Mountain View, the Plan mouth-piece.

Next stop the Mountain View train station. Senior fair for a day pass to San Francisco (from Mountain View) is only $7. Us retiree’s get all the perks. The train was just leaving and the run was about marathon length for me. They may have held up for a second or two as the door almost hit my butt on the way in. I usually sit on the top deck to see all the sights and this time to rest (I won’t be running any races again). Did you know that the train schedules use departure times? I didn’t, and the train announcer let me know I was lucky to have a ride. He must have thought I knew what was happening, the next train would have been sixty minutes. Another perk of retirement is having the train wait that little extra time. It may have been a real temptation for the driver to close that door just as I got there, thanks Cal-tran for being so polite.

The appeals court must be about a mile from the train station in the city, a cool walk in a drizzle. It could have felt wet and cold but compared to the retired electricians I saw sleeping in the various dry spots I was warm and comfy. This is a poor time of year for camping in the city and worse in the summer. The homeless in San Jose seem to have more shopping carts than in San Francisco perhaps its all the S. F. hills. The appeals court building is very nice. Old fashioned, the original part built before 1906 it’s a real historical sight. The security people were pleasant and helpful while showing me the trail to the clerks office leading through the medal detector.

The trip home was uneventful except for the bicycle blocking a what-ever and breaking five Cal-trans rules. Finally after one nice request and one stern announcement the bike problem must have been solved. There has been a few changes since 1953, my first trip by train to the city. The point of this story being: enjoy the journey, it is as much a part of life as the goal.

And now the legal picture: I expect to hear from the court in December
concerning my motion to overrule the dismissal order. If I should prevail then perhaps the plan will be required to explain why their formula would have given my first wife more than all the benefits earned during the term of our marriage. The Plan claims to have no responsibility for the state part of the benefit calculation even though it was the Plan who did the state calculation. They also claim that the complaint is missing a necessary statement, that it does contain, and therefore I have no cause for relief.

Anyway, it is the Plan “Trustee’s” who are at the controls. They represent the International Brotherhood of Electrical Workers Local 332 and the National Electrical Contractors Association. Their representative in court is Kraw and Kraw who, I understand, came up with the formula that caused the excessive benefits that were later lowered by the state court. Lowered because I paid the legal fee's.

NECA and IBEW pension plan error

2011-03-10T13:11:00.000-08:00

On Tuesday March 8th I received the Plan’s response to my appeal of the District Court dismissal of my complaint. The court now gives me fourteen days to reply. You need to watch the calendar when getting involved with the court. They are not in a hurry but they do expect deadlines to be taken seriously.

The dismissal judgment was entered 9/30/2010. My Motion for permission to file a motion was entered 10/07/2010. My Appellants informal brief was filed 1/27/2011. The Appellee’s answering brief was filed 3/07/2011. Next week I will file my reply which is on my desk 99% complete. When entering a turtle race don’t fall asleep watching and forget to cross the finish line.

The good news is that I get the last word. The appeals court will hopefully allow moving onto a trial after a three judge panel reads all the verbiage. In all the previous communications it seemed I would allege one thing and the Plan would answer another but now we have reached the point of contention. At least if all goes wrong I will know the court was considering what I am accusing the Plan of doing wrong.

For instance: I accused the Plan of not properly constructing the first wife’s DRO and not properly inspecting it for increased benefits which injured me with a lower pension check. They answered: It’s not our fault that Gray is unhappy with his pension check.

At the last hearing they stated: We cannot change a QDRO issued by the state. Now I have a statement that goes right to the point. First the state does not issue QDRO’s to the pension Plan. You can only get a QDRO from a Pension plan or a Federal judge and the Plan should know that well enough not to get them mixed up. It is the Plan who receives a domestic relations order (DRO) from the state. Inspects the DRO and provides a determination of whether it is qualified. If it meets the criteria it is then deemed a qualified domestic relations order (QDRO) by the Plan. Note: in this case the Plan also furnished the domestic relations order given to the state. That goes to show you anyone can make a DRO but only a pension Plan can make a QDRO.

Let me digress. Us amateurs may interchange QDRO and DRO in everyday language but the experts, in this case a delegate of the fiduciaries, in court answering a judges question, are not allowed to screw up and not immediately correct the error.

Any way, in my Appellant’s brief I tried to explain to the appeals court that the district court had missed my key explanations, probably, do to the strange organization of my amateur legal brief. And that some key testimony by the Plan was off the mark and could be detrimental to my complaint. In the Appellee’s brief the Plan answered with pretty much the same arguments they have been using which miss the point of my complaint. They did not explain the “QDRO-DRO” statement from the hearing transcript. And finally, in the Reply Brief, I presented the exact duty missed by the plan to cause my low pension benefit and high legal expenses. Simply put; the Plan error of 2005 which was partially corrected in 2006 (by appeal) may go to trial in 2011. Stay tuned.

NECA and IBEW together

2011-02-28T20:39:00.000-08:00

Almost March first. I’m just home from a short and fun time in New York City. What a life!! I owe the IBEW a lot for the pension I get. It allows me the “over living expense” part of my life. To my own credit , however, I seldom left the job without working the full day. I am positive that my pay was more than covered by my labor. I do not think the Pension Plan has returned to me the same measure of honesty. It must be difficult for the trustees to listen to all the stories over the years and pick the ones to really check out. BUT, it seems, if the brother/sister gets less of the pension than their spouses it is time for the trustees to step up and see what is happening. Unfortunately the Pension Plan carries the Union name. Half of all blame and credit is due the National Electrical Contractors Association. (NECA)

For some reason, I suppose “legal”, the trustees chose in 2005 to let ole “Jim” fight for his own pension. It would have been very easy for the Plan to admit an error, change their opinion, contact the opposing attorney, and get this whole thing fixed. This would have been no favor to any one. Humans make errors and it is part of a Brotherhood to fix errors. It is businesses that have no conscience, perhaps a pension administrative type not unions. Remember us as the good guys.

Whatever, the Plan must accept the fact that ole Jim fought for his pension and won. Actually the victory was published by the court so that others would know not to follow in the prior (IBEW Local 332 Pension Trust Plan) footsteps. Anyone can look it up on the internet. Next question: Does the plan pay the bill for Jim’s costs? Lawyers, filling fees, court costs, appeal attorney’s do not come cheap. Do we really expect every retiree to fight for his rights or are we as a pension plan obligated to do a proper job? How many retirees even considered that the pension plan would directly affect them to the tune of $40K. How many retirees are getting shorted benefits and don’t know? There are questions to be asked but answers will not follow without official leverage.

On March 7th the Plan should file their answering brief to my request in appeals court to continue this case. I will have 14 days to reply. I’m starting to check and see if an informal reply is acceptable to the Appeals Court as was my informal brief.

This is getting to be a fun hobby, bigger than a crossword puzzle but slow enough for a retired guy to keep up with. Darn, another preposition at the end of a sentence. Isn’t that just so irritating!

NECA and the IBEW Local 332 Pension Trust

2011-02-19T01:07:00.000-08:00

The IBEW Local 332 Pension Trust is governed by eight trustees. Half of whom are IBEW members and half are NECA members. It must be the NECA members who think it is my responsibility to fix the pension plan’s appropriation formula. After all I was a good IBEW member for years and years, so my brothers must have compassion for someone like themselves. Or, perhaps the $360,000,000.00 fund is just a little tight with money. I am asking them for about $40K in restitution.

Memories:
I spent about six weeks of one year on a picket line in Sunnyvale. Wanderer Electric was the NECA contractor. All of us in the local were on strike for better wages. We had fallen behind the rest of construction do to our “no strike” clause. Over a period of years the bargaining committee got us out of that contract and this was our chance to catch up. If my memory is correct, when we stopped working the contractor’s wage offer was less than the carpenters were making. Electricians have traditionally earned more than carpenters so we walked off the jobs. Heine Wanderer was the owner of the company I worked for, (I think he started it in 1923) a real nice guy and an electrician himself. We talked one morning on the picket line about the pay scale and the wage offer. He was sure we would never make enough to recoup our lost wages (his side of our discussion) but when I came back with the carpenter wages he just stopped talking and went back to the office. Being an electrician, he knew we would not accept lower wages than carpenters. It was the old man himself who went to the union hall to sign the new contract for Wanderer Electric. One of the larger, San Jose, NECA contractors had caved and the strike was over.

For a few years after, each union member volunteered one day per year to picket jobs using non-union electrical contractors. Sometimes this could lead to a little tension but usually it just taught us that picketing was next to useless.

On one occasion an unhappy non-union electrician almost ran me down as I slowly crossed in front of his pickup at the job entrance. I was still young and a little too smart for my own good, but I was also in the cross walk with my picket sign. He did get stopped without touching me but it was a tad exciting.

On another of my volunteer days we stopped a concrete placement. That was really exciting. The job had a standard two-gate system, but the concrete trucks could not get through their gate. We were not allowed to picket the truck entrance gate but could picket any unregistered gate. There were laws you know. To get the trucks on site the contractor opened the fence. That immediately established an unregistered gate that I was allowed to picket. Soo, there I stood with my picket sign, the trucks stopped and the contractor stood inches from my face yelling and threatening. All in all it was a very exciting time. Damn those macho construction bullies anyway. As a footnote, we had to do things such as this on our own and take full responsibility as individuals. Never once did we even mention the union for fear of big law suits. We weren’t all that smart but we were well briefed.

Later, after a 1980 back injury I wiggled into management. But that’s another story.

For now it is just two weeks before the Pension Plan must come up with their answering brief. Then another two weeks for my reply. After that the appeals court will make their judgment. Unless the court decides I’m wacko and pitches my request for appeal into the garbage. Yes, they have the right to do that as well.

IBEW 332 Pension A and the ERISA Dance

2011-02-11T16:38:00.000-08:00

My friend Malcom put me on to an ERISA Conference he had seen in a web article. I found it hoping for some insight and did find some. Twenty federal judges will be getting some benefits for helping defense lawyers and Pension Plan people on April 14 and 15th in San Francisco.

"ERISA NATIONAL CONFERENCE, for the first time in San Francisco April 15th.
3rd conference on defending and managing ERISA litigation.
You can’t miss the only conference that is devoted entirely to the defense of claims and led by an unparalleled faculty of 23 in-house counsel, 20 federal judges and top outside defense counsel. No other ERISA conference will provide you with as much comprehensive, practical information to help you shape and win your ERISA cases.

There has never been a more important time for defense attorneys, in-house counsel and service providers.

How to limit fiduciary responsibilities

Discussion on how much coverage your clients need.

The view from the bench. Led by 3 circuit court judges and 17 district court judges. These renowned judges will provide you with strategic insight on conveying your case to the court."

I tried to find the cost but needed a bar number to go further. One aspect that impressed me was finding "procedural problems" to get complaints dismissed. This goes right along with what my case is facing in appeals court. We can't seem to get to the " who did what to whom" because plaintiff does not convey in a legal accent and defendant cannot be asked to defend yet.

Plaintiff is jealous of all the expertise in one place, plaintiff found only one expert lawyer and got "zip" out of a $750 appointment.

IBEW 332 Pension Plan "A" , NECA and IBEW trustees

2011-02-08T03:06:00.000-08:00

It is now February 8, 2011. The IBEW Local 332 Pension Trust has a month to answer my latest brief. I have not got the foggiest idea what their approach will be but my hope is truth will trump power this time. As I remember it ERISA contains statements on which my hat can hang.
#1 ERISA has promised participants easy access to Federal Courts.
#2 29USC section 1056(d)(3)(H)(i) states that a disagreement over benefit distribution can be settled in Federal Court. This whole area of ERISA argues against the Plan hearing statement that they must qualify a state domestic relations order.
#3 ERISA definitely gives participants the right to sue pension Plans and to recover restitution for injuries concerning Fiduciary incompetence. 29USC section 1132(a).
#4 After the case of DeWolff v. LaRue was decided by the supreme court, Defined Contribution Plan errors affecting one participant are able to be presented in Federal Court.

Our plan states in the Summary Plan Directory that if a participant files suit it must be in Federal Court. The Plan claimed I should have filed in state court. I’m not always sure they read their own rules. I claimed they did not follow the “Rules and Procedures for Administering QDROs” (a plan document). They answered, there are different rules for spouses and participants. So that must be why my benefit was lower than the combination of my ex-spouses. The law states that the participant can only get less than 50% if there are special circumstances. Like if we traded a house for the pension rights or if I owe her money. I can guarantee you that if that was so, I would not be able to hide it. And, the plan had all the agreements and court records. There were no special circumstances.

And just to be thorough, welcome to my newest follower you are one handsome character.

IBEW Local 332 Pension Plan A and Community Property Law

2011-01-31T17:18:00.000-08:00

The appeal is now formally in the hands of the appeals court in San Francisco. What a beautiful old building! Opened in 1905 for the federal court and post office it had a bad fire in 1906 on the third floor. And was opened again in 1910. It was added to in 1930-34. The 1989 earthquake shut it down until 1996. If you like marble, mosaics, doomed ceilings it is worth a tour that must be scheduled ahead of time. The James R. Browning United States Courthouse is at 7th and Mission. It is about 15 minutes by foot from the Cal-Tran terminal.

A trip on the train is cheaper than parking alone in the city and cheaper still if you push the “senior” button on the ticket machine. I made a similar trip in 1953 but it was free on my aunt’s train pass, unc was a Southern Pacific employee. Of course the court accepts documents by mail but it just seemed sort of ceremonial to carry the package and hand it to somebody.

February 7th is the due date for the appeal. The Plan will have until March 7th to answer it, then I will have 14 days to reply. A panel of three judges should then rule on it, and if either party is real unhappy another appeal can be filed somewhere. It’s probably best to take this hobby one appeal at a time.

Here is an interesting fact about the case. In my file there are two estimates of benefits for each of my wives and not one estimate of my benefit. It is the Plans sole fiduciary responsibility to get my benefit correct but they never produced a document showing the amount of that benefit. How did they expect to know that I received the correct (50%) benefit? ERISA insists that the California Community Property law be enforced.

IBEW 332 Pension Plan A double screw up

2011-01-25T17:17:00.000-08:00

As we used to say; this case is starting again like a herd of turtles, in a cloud of ground glass and horse pucky. Today I delivered my dismissal appeal brief to Kraw and Kraw the plan attorney.

It seemed anything but brief, but then again the shredder ate a number of pages that didn’t make the final cut. Maximum size is 40 pages. The appeals court is amateur friendly and gives Pro se’s an informal brief to fill out. Wording is more like an essay than a legal document. They even have a twenty-minute on line movie for our watching pleasure. As I understand it, the informal brief does not go directly to the judges but to an attorney who will present it to the judges.

This thing seems simple to me but then I don’t understand complicated. There is an ERISA provision 29USC sec. 1056(d)(3)(D) that requires the plan to check each perspective QDRO for increased benefits. The Fed’s don’t completely trust the State to get the benefits right. The plot thickens as we realize the plan was checking its own work. The Plan produced the DRO (its not a QDRO until qualified) that the state admitted on appeal contained “increased benefits”. And, the Plan had already qualified the “increased benefit”. This does not make them look good, now it’s a double screw-up.

I think it was all an error and the Plan just screwed up. But, check this out, if the Plan had done their ERISA duty and refused to qualify the bad DRO
they would have been admitting they erred. They were the authors. This goes a little further. At one of the hearings the Plan told the judge that they had no choice. “Once the Pension Plan gets a domestic relations order, it is required to qualify that domestic relations order if it is a valid order from the superior court, which this was.”

That is almost the truth. Usually the Plan gets valid DROs that they must qualify. When the appeal changed the Plan DRO, it proved my charge that the QDRO was wrong. If you are a plan member check out “Rules and Procedures for Administering QDROs”. It contains the same rules about “increased benefits” as ERISA 29USC sec, 1056(d)(3)(D). (It’s on a Plan web page, just goggle it.

"BROWN FORMULA" and the IBEW Pension Plan "A"

2011-01-17T20:38:00.000-08:00

Here it is Martin Luther King Day 2011. One thing about a holiday in retirement, long weekends don’t have the same meaning. Many in our organization use this weekend to show solidarity with working people and they could not have chosen a better cause with which to link.

Time flies and I just realized on MLK day last year I was using a 12 font and now have moved to a 14. It seems the Plan’s strategy of keeping this dispute from the judge as long a possible is working somewhat. While preparing my next brief some time has been spent reading the past case documents. I need to do so to remember what is really happening.

In 2005 the Plan gave to my ex-wife their idea of what her benefit (and therefore my benefit as well) should be. They were under no obligation to give their (other than details) opinion. I suppose, like me, they just could not help but give their opinion as well. But, when you are a professional fiduciary it is not just an “opinion” it is considered close to a fact. It was enough of a fact that the first judge would not alter it.

The opinion the Plan came up with was based on a statement in my marital agreement that put the agreement in line with the Plan sample QDRO. The marital agreement said “according to the ‘Brown Formula”. The court of appeal agreed with me that the “Brown Formula” of 1980 is not the same as the Brown formula of 2005. After the court opinion; my benefit went up and her benefit went down. So with court cost (paid up front) I only need live eight more years to break even.

My advise: If you use the Plan sample QDRO be careful!!! When they average benefits (not in our plan document) your wife may get more than her share. And, the Plan fights paying for their own errors.

IBEW 332 Pension Plan A and the Lehman Excuse

2011-01-04T13:33:00.000-08:00

Happy New Year!! Its time to finish my appeal of the court dismissal of my complaint that the 332 Pension plan had injured me with an inappropriate appropriation to my first wife’s pension benefit. Or in electrician talk, it cost me a lot to get the plan’s screw-up fixed. And I think, the plan should foot the bill.

Right now the plan is insisting that I have not shown enough legal cause for relief from them. In other words they are sorry (or not) for my costly court case which fixed the mess but they may not be the problem.

Here is the simple fact. The Plan calculated a benefit for the ex that was more than the total of benefits earned during the marriage. I did expect to get at least half of my earned benefits. Because of my appeal in state court the benefit was lowered. The benefit formula was the sample formula published by the plan and the numbers used were put in the spaces of the form by the plan.

The Plan has cited “the marriage of Lehman” as precedent for the plan sample formula: "It......is the standard "Brown" formula developed by the California courts and specifically approved by the California Supreme Court in "Lehman v. Lehman", 98 Daily Journal 5539 (1998)."

Here is what I found about “Lehman v. Lehman”.

J. Mosk. “We granted review of this case in order to address an important question relating to the characterization of retirement benefits as community or separate property under a so-called “defined benefit retirement plan,” which specifies payments in advance in accordance with a formula that comprises factors such as final compensation, age, length of service, and a per-service-year multiplier. Does a nonemployee spouse who owns a community property interest in an employee spouse’s retirement benefits under such a plan own a community property interest in the retirement benefits as enhanced? As we shall explain, we conclude that the answer is: Yes.

The first thing I notice is that the plan under the scope is a defined benefit plan somewhat like the IBEW 332 plan from 1962-1972. Our Plan did not have: final compensation (ours was based on hours), age (age did not matter), length of service (employment did not count before 1962 or after 1972), or a per-service year multiplier (it was not based on wages). However it is generally accepted that the spouses of this part of our defined benefit plan are entitled to enhancements due to those years of work. An enhancement is a benefit that comes along in the future due to these particular years in the Plan. From 1962-73 the total benefit per year was $10.

After 1972 our plan became a “defined CONTRIBUTION plan” and is not the same as the PG & E plan discussed in “Lehman”. PG&E workers get a percentage of their last years of wages as a benefit. We get a percentage of whatever contributions we make during our membership in the Plan. They get the same benefit for their first year of work and their last. I get about $7.00 for may first year and about $100 for my last year.

The “Lehman’s” were arguing over his early retirement incentive bonus (retirement package) that he took to retire early. Will you be looking for a retirement package so that a contractor can get you off his employee list? (I don’t think sooo).

Another “Lehman” quote: “Throughout our decisions we have always recognized that the community owns all (such) rights attributable to employment during a marriage” before separation.” My comment: therefore I am entitled to half of the earned benefit just as the ex is entitled but I got zip.

Other quotes from Lehman III [9].
“It (superior court) has discretion in the choice of methods” of appropriation. “Such methods include the time rule, which is apparently the one that is employed most frequently”. “Whatever the method that it may use, however, the superior court must arrive at a result that is “reasonable and fairly representative of the relative contributions of the community and separate estates”. In California that means a 50/50 split.

Lehman III [8b].
“the use of the time rule is not unreasonable when the “amount of the retirement benefits is substantially related to the number of years of service”. Our 332 benefits are substantially related to our contributions.

I am surprised to be protected by the California community property law but what is good for the gander is good for the goose. Bottom line according to “Lehman” the time rule is not proper for our defined contribution plan because it can give one of the spouses less than required by law. This time it was the participant but according to the plan formula it could also be the second spouse.

IBEW 332 Pension Plan SNAFU

2010-12-24T23:58:00.000-08:00

Merry Christmas and Happy New Year.

Six more weeks and the Brief is due in Appeals Court. The major ideas and points of law have been on paper so long the scribbles are fading and its now time for notes and punctuation. I’ve got to remember that the details count way more than they should here in legal land.

This whole squabble started in 2005 and we are still not asking the court to judge what the plan did or did not do. We are deciding if Gray has good enough cause to ask the court to evaluate his complaint. I know of no one who has spent so much money to correct a plan error. And, I wonder why the plan jumped in and put together a benefit package they were not required to construct. Why do the participants allow the plan to waste money like this and are there other things the plan does not need to be doing with our money.

The good news for me, The Appeals Court has an informal brief system for Pro se’.

Pension DROs and QDROs

2010-12-10T12:55:00.000-08:00

Good news today about my pension records. I can pick them up at the UAS office for the minor fee of $150. The question is: should I pay now because I need those files or wait until the case enters discovery and get them for free? Perhaps I’ll do both just for spite.

Here is some QDRO procedure the plan does not seem to know completely. When an ex-spouse wishes, he may have a qualified person draw-up a Domestic Relations Order. I’m pretty sure there are no requirements to be a qualified QDRO person so just any one can do it. My second wife used an attorney known as a “Master” and I’ve seen her name on several documents confirming her expertise. I have used her as an expert as well.

Next step, the spouse takes the “Order” to the state agency responsible, in my case the state superior court. The state checks out the order and has the right to adjust it. At this stage of my first wife’s order, which was drawn by the Plan, I objected. It did take an appeal, but the order was modified in my favor.

Third step, state sends the DRO to the pension plan for qualification. The Plan is required to check it out for seven criteria demanded in every QDRO by ERISA. The plan puts the “Q” on the DRO at this time if the DRO is worthy. If it is not correct, according to ERISA statutes, the plan does not give it the qualification “Q”. and does not pay a benefit until an order is qualified.

In my case the plan created an unqualified order by overpaying for the past-service years (should be $10 not $37) and then qualified the same order when the state passed it on to them. Oh Yea, and then told the federal court they must accept a DRO sent from the state. I disagree but what does an electrician know about pensions?

Lehman v Lehman and the Brown Formula

2010-12-04T00:00:00.000-08:00

I’ve been working on my appeal brief but have run into a bit of a roadblock from the pension plan. They were going to send my records by about December first. (30 days) Well guess what? No records yet but it is still about Dec 1st. Why is it that “about” always means after the date and not before?

I spent today putting together some attachments for the appeal brief and those records would help. Earlier, before the state court appeal, my lawyer had to threaten a subpoena to get records, so, it could be the Plan is either slow or stubborn again.

The Plan has a document called “Rules And Procedures for Administering Qualified Domestic Relations Orders (QDRO’s)”. It contains the exact ERISA statutes they screwed up. They also site as case law ”Lehman v Lehman” which is about a Defined Benefit Plan. So What? The use of the Lehman time rule is the reason my benefit is lower than the Plan document demands. Our plan is a defined Contribution plan with varying yearly benefits that will rarely fit into the “Lehman” mold and adhere to California community property law (an ERISA requirement).

Note. The “Lehman” time rule is called the “Brown” formula. During my appeal in state court the judges shot down its use for my pension. And, just because I think its humorous, The Brown case for which the time rule was named is about vesting, not pension benefit calculations. No wonder there are so many lawyers in government.

interesting numbers

2010-11-16T17:24:00.000-08:00

I found some interesting numbers in a Third Circuit Appeal. An annual fee of 1% can reduce retirement accumulations by 20% for a lifetime contributor. World Bank.

The founder of Vanguard Group, is quoted as stating that charges levied on mutual fund investors generally are much higher than those that identical firms charge pension customers, an average fee of 0.08 percent to pension customers, as compared with 0.61 percent to mutual fund investors.

I think our multi employer fund management costs are in the 4 percent range and can be compared to corporate funds that cost about 3 percent.

I wonder how corporations can run a pension fund for 25 percent less than we can?

I’d like to leave you with some gem of a comment but no jewels showed up in my appeal hobby this week.

Hint for divorced Local 332 pension participants

2010-11-06T15:20:00.000-07:00

Well another week and another bit of work on the ole pro se hobby. Just to clear up a misconception all is not lost yet. Do to court and plan errors the appeal has a decent chance of success. Since there is no room for error now I’ve gotten a little legal help and think my confusion has lessened. My research found an article by the department of labor that disputes the judge and the plan on their major point of contention. The article checks with the ERISA statutes concerning plan responsibilities.

Appeals court is a different deal as well. You may recall that my state case on benefits went to appeal and we won. In appeals there will probably be no hearing. Two or three judges will read the briefs (mine and the plans) and decide for or against dismissal. The plan say’s they don’t have the authority to override the state DRO and I say they do. The department of labor agrees with me but the District judge agrees with the plan. I think ERISA is on my side but that's
why judges get the big bucks.

As you can see we are not even arguing over whether or not the plan should be responsible for their error. The judge expressed the opinion that the plan screwed up in the first hearing so that is somewhat of a given. They can goof up but not be held to it by the federal court, because the state also has a say in benefits.

It seems very arrogant of the plan to continue using the very formula the state court ruled against in my appeal. So here is a hint if you are a divorced participant. If you were married towards the end of your working years the plan’s published formula, not the one in the plan document, is good for you. If the marriage started early, like mine did, the plan alternate formula will hurt you. If you have years before 1972 it will really hurt.

Conflict of interest?

2010-10-29T22:30:00.000-07:00

The last couple of weeks I’ve been busy getting my appeal together. I thought the brief would be due in 30 days or November 30th but not so. Early February is the deadline. And appeals take about a year according to court literature. Learning to write in legal jargon is a real problem, English itself is a stretch. Hopefully the court will finally see that I have a case next year.

A little background. In 2005 the plan constructed a domestic relations order for my first marriage. That order granted my ex about $300 per month in extra benefits. Her extra benefits lowered my pension by the same $300. I appealed the court ruling and they lowered her benefit and raised my benefit. That was a good thing except I was stuck with all the court costs and attorney fees. So I won $300 per month (round numbers) and lost a big chunk getting it.

Well it seems to me that the real culprit is the IBEW Local 332 Pension Plan A since they did the math and would not back down when challenged. They made two mistakes. They moved money from 1996 to 1980 and earlier with a “time rule” not in the plan and not valid according to the Community Property law. And they forgot we had nine years of restricted benefits from 1963-1972. Actually the plan calculation worked out so she got more than the total (for both of us) benefit accrued for all the years of the marriage. That’s more than double what she had coming.

Talking to a lawyer today gave me hope. It seems unusual for a plan to construct their own domestic relations orders, he was surprised. It seems they get into a conflict of interest doing DROs. Part of the process calls for the plan to “qualify” the DRO after the state approves it. Well now guess what, it is very hard for the plan to be neutral when qualifying their own work. Here is the process. First the couple involved get a DRO constructed, second they submit it to the state for approval, third after state approval the Pension Plan inspects the DRO to make sure it meets ERISA standards and if so the DRO is qualified. If not the process has to start over or the DRO gets fixed.

In my case the Plan approved its own DRO, on appeal it was found to be wrong and overpaying my ex-wife, but the plan takes no responsibility. My guess: the screw up was the one who did the numbers. What do I know, I’m just a cheap Pro se with no lawyer.

Seeking restitution from IBEW Local 332 Plan A Trust

2010-10-16T10:53:00.000-07:00

ERISA attorney’s are few and far between. It seems federal court is very stingy with attorney fees. Thus, the reason I was in this as pro se. I am now working with an attorney who thinks I have a case but a tough time prevailing from the spot I’m in. It turns out the attorney is interested in the class-action aspect of this case. It seems reasonable from the pension plan documents I have, the plan may have shorted spouses of divorced electricians. And, that’s where the class action may be and the money to make it profitable for a lawyer.

The plan has seven criteria to check before qualifying a domestic relations order and in my case they missed the next to the last. They awarded my spouse $333 of monthly benefit for 1963 through 1971. Get out the plan and take a look. The maximum benefit is $90 of monthly benefit. They are denying their responsibility to check these figures but it is their ERISA responsibility written into 29USC section 1056(d)(3)(D).

I stated, in my Motion for Reconsideration the above example of plan error and am hoping it is enough to be allowed another amended complaint. And, I promised to have the complaint written by an attorney so that it would be in the legal language the court is used too. The attorney thinks I will be notified soon because there is only a sixty-day window for appealing the granting of the defense motion. The lawyer is betting against reconsideration.

Naive electrician

2010-10-11T21:40:00.000-07:00

I’m still a little set back by the courts agreement with the IBEW LOCAL 332 Pension Plan that I have not shown “a claim upon which relief can be granted”. That is a pretty standard term for defenses to use in dismissal requests. I thought that the state court had pretty much proven the case when they agreed to raise my original benefits calculated by The Plan. Any change in the original benefit numbers equals errors by The Plan.

I have asked Judge Lloyd for reconsideration. The Federal Court is very kind to Pro Se’s but I’m also sure we are an unconventional lot to work with, therefore, the odds are low. So tomorrow I expect to start my search for an ERISA attorney; to see if this case is salvageable and worth doing so that at least the other people shorted can get a shot at their benefits. And maybe at the same time, find a way to recover my court expenses.

FORK IN THE ROAD

2010-10-05T06:13:00.000-07:00

At last a decision from the court on the dismissal motion filed by the pension plan. Judge Lloyd has ruled for the pension plan that I have not produced enough details to warrant a trial.

I’m sure of a couple of things. The Plan made the error that cost me lots of money to correct. The plan uses a different formula for spousal pensions than it uses for participant pensions. In my case the Plan calculated the spousal pension, took it from the fund and I got whatever was left. Perhaps that procedure saves them from double checking the math but it shorted me a lot of benefits most of which the California Superior Court restored.

This is one of those forks that Yogi Berra mentioned and I’ll do just as he said, “when you get to the fork, take it”. I have also found that the legal business is somewhat like school with out questions on the test. If you submit the answers the teacher wants you score higher, answers not wanted score less. You not only need to know the subject but you best know the importance of the concepts.

Another American Hero

2010-09-29T14:01:00.000-07:00

No news on the dismissal motion before the court. I did take a look at the court guidelines for rulings. Their literature suggests a time span of sixty to three hundred sixty days. So, using that criterion gives the delay a different perspective. Not being in the “justice business” my restlessness is excessive.

On to another subject. My father-in- law is one of our WWII heroes. He served in the submarine force in 1944 aboard “U.S.S. Tang” the most decorated boat at the time. His job was communications and tracking and he volunteered for each of the five war patrols. A near duplicate of his boat is on display at the San Francisco water front near the SS Jeremiah O’Brien. Floyd Merle Caverly (Friar Tuck) joined the new boat at Mare Island and barely escaped, to be captured by the Japanese, when she sank in the Formosa Straight October 25, 1944.

Captain Richard O’Kane was on his first assignment as captain but had been executive officer to Dudley “Mush” Morton on the Wahoo an earlier aggressive submarine. Captain O’Kane’s book “CLEAR THE BRIDGE!” details his tactics and the five war patrols. The new officers of these “boats” changed the “book” on submarine warfare and were responsible for the Japanese lack of fuel at the end of the war. The Tangs last attack caused so much damage to the Japanese convoy that they thought there was more than one attacker. When the Tang received a citation, for the attack, from our government the Japanese beat the nine prisoners for lying. The sailors had let the enemy believe in the multi attacker theory but our own stateside people did not keep the secret.

Nine members of the crew survived the sinking and became prisoners of war. Floyd went on to finish as a carrier sailor and expressed compassion for the plight of the Japanese people who were starving along with the prisoners of war. He is one of the two remaining Tang survivors and a true American hero.

IBEW 332 Pension A common law

2010-09-19T22:11:00.000-07:00

There still is no court ruling on the dismissal motion.

I filed this complaint 8-18-2009 when I was a year younger. Time really flies at 67 years. They could win this by attrition. Yesterday I came across a web site I have not seen before, http://www.askebsa.dol.gov/. They claim to settle my kind of dispute privately. That would be a better thing if all the plan members were in on the problems and solutions.

Lawyer comment:

The board of Trustees has a duty to protect the beneficiary against unreasonable delegation. Therefore, delegation of the legal power by the trustees can kick back on The Plan. In this case the lawyers, acting as delegates of the Board of Trustees, missed part of the common law in Carmona v Carmona. It may be OK to omit part of a case in ordinary law practice but here they are substitutes for Trustees who are not allowed such an omission. They carry the extra burden of fiduciary duties that include care, skill and caution. They cannot be prudent if sacrificing the interests of the beneficiaries.

IBEW 332 Pension A dismissal motion

2010-09-13T12:18:00.000-07:00

No word from the court on The Plans dismissal motion. March 23, 2010 was the second dismissal hearing. In “electrician time” five months is a lot. A service truck electrician could not count the number of completed job in that time span. Five months for a “big job” could mean it’s half done. A five-month job starting in December would get an electrician through the winter. Many electricians view their years as end of winter through start of winter, winter work being subject to weather interruptions and harsh working conditions.

Personally I ran a service truck for many years and weather made little difference except for the general construction slowdown. However, as an apprentice I worked for several contractors. Not having a “steady” employer bothered my wife and mother in law. They suggested I become a mail carrier like a cousin who had been with the same employer for many years. Well, I’m a mechanic at heart and other things just weren’t what I wanted, especially if it meant giving up a few years of night school and training. So, I presented to them this deal. I would promise to make the same amount of money as a mail carrier, no matter what my livelihood, if they would get off my back. But, since my wife was a stay at home mom she could not complain about my time hanging around the house, or fishing, while not working when work was slow. Electricians are not expected to work in storms and their wages are adjusted up to compensate for lost time. In other words if I could work less for the same pay and in so doing be happier, why not.

Here is an electrical story I picked up along the way. Years ago I volunteered to do some wiring on an old Victorian home on North 3rd Street in San Jose. A very nice family had donated the house to be a home for young ladies in need. As I remember it the big deal was the electrical service and the kitchen. Three of us volunteered and worked after hours to bring the electrical up to snuff. During the work we noticed that beside each electrical fixture was a natural gas outlet. Nobody knew why and it puzzled me enough that I asked many older people from San Jose about it. Finally the answer came from some body. When these old homes were built the utility would turn off the electrical generator at ten p.m. I don’t know what time of the morning they started it. If you wanted light after hours the old-fashioned gaslights were much safer than candles.

IBEW 332 Pension A case law

2010-09-08T23:30:00.000-07:00

The IBEW 332 PENSION plan motion to dismiss is still not answered.

Judge Lloyd ruled at the first hearing that I have jurisdiction. The Plan had argued the complaint was not proper for Federal Court and that I had failed to state a claim upon which relief can be granted.

The question now is; have I shown, in the complaint, that I was injured and the Pension Plan was at fault. And, did the plan fail in their fiduciary duty to me? This phase is not based on hard evidence and testimony. The complaint only needs to be complete and show the judge there is a reasonable argument for a trial.

At the last hearing the Pension Plan asserted they had done everything required of them by the ERISA laws. I argued they had missed an ERISA law that requires them to check for overpayments to the alternate payee. The Plan is using the same case law that I am for the argument. My section of the case law is just after their section.

Google, Carmona v Carmona and look at the courts opinion. See page 6681, 6682, 6683, or about the middle of the opinion.

I’m an optimist so it seems a good sign when the Judge does not give me the quick boot. At the very least I must not be too far into left field. Or, perhaps, Judge Lloyd has been too busy to mess with this case.

IBEW LOCAL 332 PENSION PLAN A benefit error

2010-09-01T21:44:00.000-07:00

The Summary Plan Description of 2004 is the one that determines my pension benefit. The newer copy is dated 2008 and is after my retirement. If you would like to check out how my retirement benefit is mandated the 2008 example is on page 60 and did not change in the new SPD. By the way; the SPD is written in “electrician”, ERISA requires it to be in everyday language at about the sixth grade level. This contract has existed between the Plan and myself since 1972. (38 years) All they needed to do is fill my yearly contribution and years of service into the formula (page 60) to get my benefit. I was married for all but one of my contributing years, so divide the answer by two and bingo; Gray’s contracted benefit, less whatever was left over from that one unmarried year.

The Plan has their own system for finding the participant benefit, which should come up with the same answer. (It’s really just a math problem). They calculate the spousal support, subtract it from the total benefit. The correct answer is the same as the SPD example explained above. What a good way to double-check the benefit!!! In the old days I had a checking account to balance each month. I learned to calculate it different ways and compare the answers. When they were different (almost always) I set out on a search for my errors. I suggest The Plan find a similar system. In my case the superior court was able to get a closer answer than the Pension Plan. Believe me when I tell you the State Court is not an expert in pension plan benefits. We pay our Plan experts about 4% of our assets. Thats gotta be about $30K per year just for me.

There were a couple of problems with the plan “spousal” formula. One: my years of service are lower in the participant calculation and higher in the spousal calculation. This error was a help to me because it lowered the Ex’s benefit. But having different numbers for the same question can’t be correct. Two: The Pension benefit awarded the spouse, for the years 1963 through 1972, is almost four times the yearly benefit shown in the Plan example (using my earnings not the sample numbers). She should have been credited with $10 per year but received credit at $36 per year. (I might be low by a dollar or two). That gave her a bonus of $26 times nine years or $234 per month.

One more thing; one of our members retired a while back with almost all of his pay stubs. He proved to The Plan that he had been shorted 400 hours. There is now a rule that you must check your hours each year (I think) and not wait until retirement to complain. 400 times the hourly benefit is worth having in your own pocket.

If you know electricians who have retirement nearing please send this to them. You can send it using the envelope icon below. Thanks, Jim

IBEW Local 332 Pension Plan A error

2010-08-28T10:55:00.000-07:00

Friday August 27, 2010. As usual on the weekend (in this case I’m home early Friday night) I check the Court site for case filings. None this week so no answer to the Plans request for dismissal. The last filing was March 23, 2010 which stated a hearing was held and a decision will come later.

This started in 2005 when the Plan gave my EX a screwed up benefit calculation. They failed to leave enough in the account to pay me at least 50% of the benefits. Seems pretty straight forward! According to ERISA the plan is to lookout for me (not the ex). If they don’t look out for me they have failed in their Fiduciary Duty and I can seek restitution. As it turns out “seeking restitution” equates to “waiting”, a lot of waiting. On a hearing date all hearings are scheduled for the same time. One must get to the court early because walking in late could be a disaster. (Some extra waiting to insure promptness). Then if your case is not first, (there may be twenty cases) wait for the cases which are called ahead of you. (Sometimes this can be entertaining but not often.) And of course there is also the miscellaneous waiting. I went to the courthouse three times to see hearings of other cases to figure out what to expect. I went one time to a hearing that was not removed from the web site do to whatever. A real attorney would have known better. But better to be there on the wrong day than to miss for any reason. I’m retired so why not wait. It beats working.

In an earlier post I sited the Plans error of over paying the EX for the years 1962 through 1971. Here is a little deeper explanation. The real error may have been the Plan’s mistake of calling itself a “Defined Benefit” Plan. It never was a “Defined Benefit “ although it has a pre plan “benefit “ clause. The Plan starting date was 1972, not 1962. The Plan was a “Defined Contribution” Plan in 1972 when it started and employee’s contributions began. The pre-plan Defined Benefit funding came out of all employee deductions that went into the Defined Contribution Plan. The question is why did the Fiduciaries act as though the smallest part of the plan should determine benefits in divorce calculations. How many members divorced recently were even married in 1972 and yet the plan sample QDRO (actually it’s a sample DRO, but that’s nit-picking) has not changed.

The sample DRO cannot become qualified until checked and approved by The Plan. Even a state judge who approves the DRO cannot force The Plan to qualify it. The "Q" means that The Plan guarantees the document meets ERISA requirements.

Union not Commune

2010-08-25T07:03:00.000-07:00

I went to the Local 332 Health, Welfare and Pension Plan financial review yesterday.
It was suggested that about 550 members give up some of their accumulated Medical reserve for the good of the H&W Plan. That’s about $2,000,000. 430 members have about one year of medical reserve. Their donation would be about $4,000 each. If each of 550 members donates their reserve amount over nine months the gain will be enough to delay a $2/hr increase. These are extra hours saved for insurance coverage during the first year of early retirement or in case of a serious injury or unemployment.

At the same meeting it was stated that the Plan money problem comes from under funding in previous years. Should it be underfunded again?

There are 1,300 to 1,400 active members, so, about 1/3rd can donate to save a $2 increase or benefit reduction next year. A tough decision. A brotherhood is about helping each other but it is not a commune where everyone gives everything they earn for the common good. These kinds of decisions always fall on the people who have something to give, and they must temper their decision (if it is not made for them) with the knowledge that they alone have earned and deserve these hours. If each of 1,300 active members kicked in $1,550.00 the result would be the same.

It was comforting to hear Sid Kaufmann, Plan actuary, report the pension plan is OK. It is an easy step from 430 H&W members giving up $4,000 each to one pension plan member being asked to forgive a $40,0000 bill for correcting one pension plan error.

IBEW Local 332 Pension Plan A dismissal Request

2010-08-22T21:48:00.000-07:00

A very minor part of our pension plan is the past service credit. It goes to retires who worked from 1962 through 1971. In 1972 the future service credit started. Future service credit is funded by employee contributions, these are all the contributions to the plan and it is also the defined contribution part of the plan.

In my account the past service credit was a defined benefit of $10 per year which could (and did) increase to $20 per year under certain conditions. Under California Community property Law I was to receive one half of this benefit for my years before 1972. But, the plan did not check to see that my benefit matched the SPD when they ruled that my ex-spouse should receive $36 per year for past service credit. Don’t forget that any extra allowed her means less for me.

The result of the plan calculation: For each year before 1972 my benefit was figured to be negative $16. (Should be positive $10 per year) So it was to cost me a MINUS $144 per month (16X9) at retirement for working those nine years.

No electrician in 1971 would have voted for a benefit calculation of negative dollars per year. Even for past service years that received no funding.

The Federal Court has not ruled on the March 23, 2010 request by the IBEW Local 332 Pension Plan A to dismiss my complaint alleging damage by incorrectly calculating my pension benefit in 2005. My benefit was increased do to a 2009 appeal in California Superior Court at a cost of thousands of dollars..

My Brothers Do Not Want to Pay

2010-08-18T21:27:00.000-07:00

I just checked the court docket, no ruling on the dismissal motion filed by the pension plan.

This past weekend I met with an insurance expert. He has assured me that every pension plan, he is familiar with, has insurance to cover Fiduciary error. Kind of takes the air out of the remark “your brothers don’t want to pay you for this claim”. (This is a paraphrase of an oral explanation I received regarding my claim rejection.) The insurance should pay this claim unless it was intentional.

Three points here: Everyone makes mistakes and that is why we have car, home, and life insurance, etc, etc. We do not expect our Trustees to be perfect, so it is smart to cover them with insurance. We do not expect our members to individually absorb the cost of Trustee errors. We do not expect an electrician to take a trustee appointment and be liable for unintentional errors. (no one would want such a job)

Final point. Should I win this dispute it will cost my fellow members very little (if any) of the $300,000,000 pension trust. But, what about the poor insurance company? They aren’t poor.

I did not want to pay either. I still must live seven more years before the gamble will be at "break even" except for the missing interest.

Hearing error

In a previous Blog I mentioned that the Trustees refused my request for a hearing. The judge has stated it probably would not have changed anything and I agree. However it will no longer be fair for them to site a lack of hearing or the missing of a hearing, as reason for a claim denial in the future. They have established a precedent that hearings are not necessary and what is good for the trustees is good for the participants. Perhaps they are correct, rip those pages from your SPD. :>)

Here is my rational from the 2004 Summary Plan Description:

Page 20 C “If the application for benefits or a claim is denied, the Participant may petition the Trustees for a review of the decision. ------“
Page 21 C: “Upon the written request of the Participant, the Trustees shall grant a hearing to be held within a reasonable time to permit the Participant to appear personally in support of the claim.--------“
Page 22 F: “This claims and appeals procedure shall apply and shall include any and every claim or right asserted under the Trust or Pension Plan, regardless of when the act or omission upon which the claim is based occurred.”

The new SPD has the same language on different pages.

Local 332 Pension Plan A," Brown Formula" Error

2010-08-11T21:20:00.000-07:00

August 10, 2010, no decision filed through today on The Plan motion to dismiss. The
Plan does not agree that I showed damage in the amended complaint. (justice is after the details)

The Plan "Brown Formula" Error

California lawyers have developed a phrase, “Brown Formula”, which refers to the case of Brown v Brown. Follow this if you can. Brown v Brown was about vesting rights. Before Brown the pension had no value until vested. Brown established value for partial vesting in divorce settlements. The (new) Brown Formula refers to the “time rule”. Nobody seems to know why the Brown Formula moved from being the vesting rule to the Time Rule but that’s the way it was when I got involved. Many in the legal community knew this was a problem, one of them was Sarah Kraw who had a plan person send me a clarification because of my question to her. Sara was the plan attorney until her death, after Mark Lipton and before George Kraw, Sara’s husband.

The vesting rule is appropriate and important in regards to our plan but the time rule is not. The attorney general or some other state person came up with an approved means of splitting defined benefit pensions. Our trustees accepted it in substitution for our own plan document formula. PROBLEM, our plan is not a defined benefit it is a defined contribution plan. AND, our plan already had its own plan formula approved by the membership way back when and trustees never mentioned the new change to membership. The state formula called “Brown” does not work for our plan. The big problem, it is contrary to California community property law when used in a defined contribution plan. It is also contrary to ERISA law, which is concerned with earnings during a marriage. The Brown formula averages benefits from all the years of plan participation. That’s OK for the defined benefit plan because each year’s benefit is the same, so averaging changes nothing. For the 332 plan each benefit year is different, so to average all years you must go outside of the marital years in most cases. Going outside the marital years is not allowed by California or ERISA, is not fair, and will raise or lower the spousal benefit incorrectly. In my case it lowered the second spousal benefit 50% and doubled the first spouse benefit. Since I was already on the hook for the proper benefit for Carol I could not afford the increase of the benefit to Mary. I was not keen on paying her any extra, the relationship did end in divorce ya know. The plan proposed to lower Carol’s (they did for three years) and raise Mary’s. The difference to be made up from my account. Actually, had we used the plan idea, the spouses would have received less than their share of the total and I would have gained the difference. (It’s a long story.)

Another problem that popped up in my case. When the dissolution order was written in 1980 it mentioned the “Brown Formula” but there was no definition in state law of the Brown Formula. Not then and not today. This case went to appeals court and they ruled against the time rule definition. When the plan calculated our benefits they used the Brown Formula as the time rule in 1980. Bad Lawyering, they must use the laws of 1980 to interpret a 1980 contract. A simple mistake a good fiduciary will never make. In 1980 the Brown Formula still meant, if the pension was ever vested, the spouse would have an interest in the pension depending on the years of pension during the marriage.

There are more problems with the plan calculation. For instance they even screwed up their own formula, which should not be used. The Plan Document contains the proper formula.

Thanks to everyone who have accepted gracefully my cards!!! Solicitations will not be my new hobby.

If you would like to pass this on click the envelope icon below.

Truth Speaks to Power

2010-08-03T00:04:00.000-07:00

No decision was posted on the docket this week regarding dismissal.

Truth speaks to power (thanks Jane). At our first Federal Court hearing the Plan lawyer was adamant that this case belongs in state court. The plan document clearly states that any dispute must go to Federal Court. Check it out, its in more than one place.

So far this has been an interesting journey, which I hope continues until the pension plan realizes truth can trump power. It is the very essence of our country and way of life,a virtue which makes us great.

I have been told, by a person inside Plan A that I was the first participant to look at my records. That seems odd, the pension has been in existence since 1972. But, it also highlights a couple of things that happened. One, in a telephone conversation with the plan administrator I realized she did not know the plan benefit formula is in the Plan Document. In fact she thought the only formula was the sample DRO the plan furnishes. The sample DRO is more often wrong than right. Two, I asked to copy all the documents in my file using my digital camera and was denied. It seemed odd that I have a right to the documents, but only paper copies. I can still put them on my camera at anytime. They are not prepared to have participants question their procedures.

Back to the previous post: I called it the first error but it was the second. The real first error involves my second ex-wife. Ex-spouses are a real complication and more than one is a tad tougher. We were married from 1980 to about 1998. On our divorce a QDRO expert calculated our settlement agreement in regards to the pension plan. The 332 Pension Plan received a copy and approved it, it would not be a QDRO without their approval. Later my ex-wife became totally disabled due to a respiratory problem that led to dialysis and a kidney transplant. At the earliest time possible she requested her retirement, knowing her life would be short. The pension paid her a monthly benefit based on the sample QDRO calculation they had adopted as standard. 36 months afterward they realized their error. The plan standard calculation was just half of the approved QDRO in the plan files. My ex-wife received a reimbursement check for about $25,000 and an almost doubled monthly benefit. I’m sure she was tickled to get that check and the monthly improvement to her standard of living. I was glad to have my support payments lowered by $200 per month because of her new income. I asked the plan to reimburse me the extra money I paid her for the past three years. They sent me an apology for their error and advised me to go back to family court and get the $7,800 from her.

They must not know much about family court. Family Court never returns money to the supporting spouse. And what are the chances they will require a totally disabled woman, who has spent months in intensive care, who’s expected life span is ten years, to return money? Carol died in 2009 due to her illness.

At the first hearing (11-17-99)the Plan stated :

“If we were in a position to be paying all of our people who were to get benefits, in the plan, every time there was a dispute about a QDRO in Superior Court I dare say there wouldn’t be any money left in the trust.”

Facts: My account holds $87,553 in contributions starting in 1972.
Very minimum in account at the average rate of stock market growth. $171,127.
Based on Plan B investments (they were the same for many years). $750,000.
Restitution request. $40,000

If you know an electrician who is interested in the pension plan use the envelope looking icon to forward this post. Thanks, Jim

2005 Error by IBEW Local 332 Pension Plan "A"

2010-08-02T01:07:00.000-07:00

2005 mistake made by pension plan.

Gave unnecessary information about pension benefits to ex wife. ERISA requires the pension plan furnish your ex-spouse enough information to calculate the alternate payee portion of benefits. It does not require the plan calculate the alternate payee (AP) benefit. In 2005 my first AP asked the plan for benefit information and they gave her their standard sample plan calculation. They did not check to see if their calculation shorted me. (or maybe they did, I should not assume) We have a plan document and California community property laws that should have been double-checked but must not have been. Example: I am supposed to receive $10/year from 1962 to 1972. The little woman was allowed $37/year for that period of time. Not a bad benefit for a contribution of zero. The plan did not start until 1972. I’m supposed to receive half of my pension benefit for the time of the marriage.

They averaged my total benefits for twenty-five years of contributions and allowed her one half the average for each year of our marriage. My benefit for 1973 was about $7. For 1980 the last year of marriage the benefit was $78.56. Total of benefits during the marriage was about $245. How could her total benefit be over $500? Why did they use benefits for 1981 and later in her calculation? Ask them. California community property law only allows pension benefits accrued during the term of the marriage. ERISA only recognizes benefits from during the marriage. And, ERISA (206) United States Code 1056 (d)(3)(D)(ii) specifically does not allow increasing the benefit from before 1972 or any period of time.

Who is responsible for these errors? Not the participant who fought them clear through appeal. Not the AP who was fighting for the benefits because of a recognized expert calculation by IBEW LOCAL 332 Pension Plan “A”. The Plan is responsible to check every Domestic Relations Order presented to it for increases to the AP’s benefit. Even if they have calculated the benefit themselves, they cannot deem it QUALIFIED until they check it. The state of California cannot require the plan to qualify a DRO that does not meet the requirements of ERISA. The state is required to change a DRO that is not “Qualified” by the responsible pension plan. Case law for this is “Carmona v Carmona”. Where they site USC (d)(3)(D) “in certain respects, ERISA limits what a state family court can order.” Ask the plan if they goofed and the answer is "the court ultimately changed the calculation."

Did I mention a rule forbidding information be given to non-participants. It existed in 2005 but the plan ignored it. You can still see it in the sample QDRO packet on line.

If federal law is setup to protect the participant then why was this error repaired with my dollars. Wouldn’t you expect the fiduciary/expert who screwed-up to stand-up and take responsibility.

In depth reporting of error two next time.

lawyer talk for "yes"

2010-07-30T19:58:00.000-07:00

I just went back to my previous post and inserted quotation marks which clarify the Judge/attorney conversation. Now that I have the hearing recording the exact words are in my possession. That quote came from my first Federal Court hearing in front of the judge and twenty or so lawyers in the audience. The second hearing was easier and the judge was very helpful. I'm not a public speaker but when the reward is $30K I've already spent and $10K I'll loose in the future, its a no-brainer.

Judge Lloyd also said he will be looking at the fiduciary actions of the Plan. That seems like a plus on my ledger since they admitted the original DRO had been changed in state court. That means they were wrong when they created the DRO. And it means they did not listen when told by my attorney it was wrong. A second error. It also means, as they were told in 2005, they should have checked the Plan Document which is the contract between the Plan and the electrician. But all the should-ah would-ah could-of's still leave the one who deposited the money short what it cost to fix the Plan error. ERISA requires the Plan to look out first and foremost for the "participant". That is the electrician, and no one else until the DRO becomes accepted. They had their timing backward.

Well on another note, as usual, on Friday's I check with the court to find out status of the Plans motion to dismiss my complaint. Judge Lloyd has not ruled. I know that one of his cases is worth about $100,000,000. (no extra zeros included) So I'm honored to be in such a weighty court room and proud to be an American who gets to do this kind of thing.

332 pension trust error

2010-07-28T10:49:00.000-07:00

Just for whatever here is my recent restitution activity.
Designed cards to help get the word out. The error has not been addressed by the trustees, (they were informed in 2005) even though the court changed their calculated benefit. So, it must be time to go to the membership. Divorced electricians especially need to check this out. Single spouse electricians should be wondering why the plan has let this go since they found out five years ago.

Tuesday, placed cards at CEI and Rosendin pre-fab shops. Wednesday, placed cards on trucks at Stanford and Valley Medical Center. If you received more than one card please give the extras to your fellow electricians. Lets not keep this error a secret.

The Plan Attorney admitted to the error in Federal Court. The conversation went like this: Judge Lloyd, "Plan estimate was wrong". Attorney, "ultimately the(state) court modified the calculation".......

I had the pleasure of speaking to two electricians this morning before work, thanks guys for the encouragement!

Click on the envelope icon below to send this to an electrician. Thanks, jim

NEC Fiduciaries

2010-07-24T08:41:00.000-07:00

July 24, 2010: I just checked the court docket on line. Still no decision. Our last hearing was in late March. My understanding is that ninety days is about the process time. So, at 120 days we should be getting close. It is best to post on a blog at least twice a week so I had better start looking for some subjects of interest.

Good electricians are fiduciaries of the National Electric Code and the job documents. It is the electricians refusal to take shortcuts from the NEC standard that keeps fire safety in your electrical system. (in the middle of the night you are surrounded by your wall outlets) There are plenty of dangerous ways to install wiring, some subtle and some blatant. Even a job with drawings and engineering depends on the honesty of the installer. If you are an electrician, I suggest you compare yourself with the IBEW 332 Pension Plan A fiduciaries.

IBEW Local 332 Penison Plan and Monkies

2010-07-19T11:50:00.000-07:00

Last Friday I went to the Federal Court Clerks office to see what was happening. The clerk assured me that the court is very busy and everything is OK. The dismissal hearing was March 23rd. The plan is questioning jurisdiction and losses. I think the judge had already ruled on the jurisdiction issue but wanted more information on my loses and that was the reason for the hearing.

While there I ordered the recording of our first hearing which should have the Pension Plan admitting a benefit error on the original QDRO. Perhaps they do not think the error was the reason for my expenses but that is not for me to speculate.
I do try to do my "Joe Friday" best and present only the facts.

Scientists did a monkey study

They put a monkey in a cage. From the top of the cage hung a bunch of bananas. In the cage were enough tools for a smart monkey to reach the bananas. However, there was only one combination of tools that would help the monkey in this project and only one way the monkey could use the tools to accomplish the task.

The camera was turned on and the scientists watched as the monkey used some of the tools to reach the bananas in away not considered possible by the scientists.

Moral

You can show an electrician the only way it is possible to calculate pension benefits and he may get a correct answer that is different than yours.
(Thank Todd for the joke)

IBEW LOCAL 332 PENSION PLAN A benefit error

2010-07-14T22:28:00.000-07:00

When I think about justice my mind goes toward a punishment for a crime that somehow balances with the crime. The punishment should be at least as bad for the criminal as the crime was for the victim. In civil law we do the balance with money and they are not "crimes" but errors. The car fender was dented, the repair cost whatever plus the rental car, plus the babysitter plus the lost time from work, etc, etc. Pretty cut and dried but still something thrust upon the victim they would rather avoid.

ERISA is a whole different ball of wax. If the pension plan itself screws up there is no way to give justice to the one injured retiree. The courts have only allowed restitution but not compensation. So if it were a car wreck the victim is stuck with everything other than the car repair itself. You may get your car repaired but kiss off compensation for the once in a lifetime family reunion you missed. The point is that the retiree becomes the loser which is contrary to the very reason congress enacted ERISA. There is no perfect system for compensation but ERISA needs to evolve into something much better than it is now. Compensation should be calculated into the Plan costs just like administrative expense and trustee meeting snacks. Retirees should not be the losers because of plan error.

If your pension is somehow not “standard” for your plan I encourage you to double check the amount of your benefit. Fifty percent of marriages fail and cause non-standard benefit calculations. If you are in a defined contribution plan, such as the IBEW LOCAL 332 PENSION A, every benefit is variable. If the plan goofed it may not be too late, this is federal law. Just as I was getting an unfairly low benefit so could you. My plan overpaid my first wife, underpaid my second for years, when she was totally disabled, and for good measure left me with the remainder which was below my guaranteed benefit. Their overpayment to one wife had to come out of some account so they shorted (electrical pun intended) the guy that contributed all the money. He won’t notice he’s an electrician.

QDRO and IBEW Local 332 Pension Plan A

2010-07-11T23:00:00.000-07:00

A fiduciary is one considered above the other members of their discipline. I understand the Supreme Court has ruled that a fiduciary can make one mistake. One explainable non-injurious error seems generous to me. But if it costs a worker to fix that error than the court is not living up to the intent of ERISA.

The following is no secret, its all public record either in the Federal Court Case, The State Court of Appeal or the Family courts.

First plan error. The Plan shorted my second wife’s benefit by about one-half. She was totally disabled and applied for her pension to help with living expenses. The QDRO was in the Plan file but they used their own formula instead. Her QDRO had been approved by the court and calculated by an unbiased third party. I guess they forgot, they tried to make up for it with a written apology. Did I tell you the lower benefit cost me in higher support payments? And, the support payments went down when her benefit went up.

Second plan error. Writing the DRO without my permission. Although it is not an ERISA rule it was, at that time, a plan directive that no information other than required by ERISA was to be given anyone other than the participant. Another part of the plan document they forgot. The ex was not yet an alternate-payee and can never by definition be a participant. This is an example of a slight bias, by the plan, toward the ex and away from the participant. They forgot whom they were responsible to according to ERISA and also who pays the bills.

Third plan error. The plan explained their calculation using case law that does not fit the plan. First they stated the “Brown Formula” as reason for the time rule. Let me tell you they must not read the case law they refer people to. After I pointed out the marriage of Brown was not on the subject, they came up with two more cases which were incorrect. Once again I challenged their cases. The cases weren’t even close. At this time they “stone walled” me. No more e-mails were answered from ole Jim. Later the court of appeals would shoot down their “Brown” excuse. Anyone can go to the law library on 1st Street and check out case law. Even the pension plan. The result was my hiring attorney Mark Lipton. I had met Mark in 1980 when he worked for the pension plan. He was the attorney who set up the plan in 1972 or so. I did a lot of work to get this straightened out with out cost.

In 2005 the DRO went to superior court and after a very short hearing, at which the judge all but called me a liar, the court approved the DRO and ordered me to sign it. Now the DRO can be approved by the pension plan if they find no errors. I’m sure they gave it an unbiased study since they were the authors. Mark Lipton immediately filed an appeal with which the appeals court agreed. I just looked at the appeal on line. Google: Marriage of Gray

Fourth error. The plan approved the DRO making it an official Qualified Domestic Relations Order. According to ERISA a DRO can only be qualified by the plan (or perhaps a federal judge) but for sure not the state. Our plan has a set benefit for the Years from 1962 to 1972. The Plan credited my ex with $37 per year for her years of that time. Her maximum is $5 per year according to the Plan Document and ERISA, USC 1056(d)(D)(i)(ii). ERISA mandates that the plan not over pay an alt-payee because that will cause the participant to be underpaid. Who is the prime subject of the plans work? Yes, the participant not the alt-payee. My pension contribution before 1970 was zero and is the reason for the restriction.

Fifth plan error. The plan averaged all the dollars contributed for the whole pension contribution period including both marriages. Thereby circumventing the California community property law and the ERISA intention of dealing only with the term of the marriage. ERISA also mandates the community property law in USC 1056 (d)(b)(ii)(II). The Plan excuse, case law, Marriage of Lehman. The problem being that “Lehman” is not about a defined contribution pension plan. It is a defined benefit plan that grants the same benefit for every year of the marriage. If you average Lehman you don’t change the yearly benefit, if you average 332 Part A you change the yearly benefit and go afoul of ERISA and community property statutes. This was explained to our members before we approved the plan in 1971.

Sixth error and worst of all: By over paying the ex they lowered my benefit below 50% of the account level. California community property law mandates that my benefit be at least one half of the amount contributed during the marriage. ERISA mandates the community property law be obeyed.

Seventh error: They calculated the alt-payee benefit before the participant benefit. And forgot the SPD contract with the participant which clearly guarantees benefit amounts.

Eighth error. Refused to allow me a hearing. To be absolutely honest this error is in dispute. In my opinion the plan document demands a hearing for any complaint. In their opinion it does not. For sure its an error in the since their denial makes them look bad. This is America, right. Could it be that they are not without bias? They are supposed to be looking out for their participant of 25 years. But the participant/retiree was asking them to compensate for the cost of correcting their error. Buying both sides of an appeal isn’t chump change.

Ninth error: Nine is not all of their errors. Hopefully, if the motion to dismiss is turned down, discovery will solve the transparency issues of the pension plan and the other errors will show up.

By the way, why does it cost the pension plan for two lawyers at each hearing? There is security everywhere in the federal court building.

Ancient Fruit Tree

2010-07-08T22:49:00.000-07:00

Back to the fruit tree in the previous post.
Lets assume that after a century the village becomes a city. Seeds from the fruit tree have been planted in all the parks. All of the fruit belongs to the people but some are tempted to take more than their share. The prosperous little city hires a constable to police the fruit. Constable Ibewp has to be very honest to keep from snatching an extra fruit or two along with his salary. And he has to be extraordinarily upright when the mayor (who signs his check) wishes a few extra fruits for his new wine hobby. It is very very important that Ibewp be trusted and respected by all the citizens so that they each know the rules are fair.

Constable Ibewp is in a bit of a pickle with his new job. He is not just a constable looking for bad guys snatching fruit but must keep his reputation spotless. If he lets the mayor take a few fruits it could lead to Ibewp picking fruit for the mayor next harvest. If he lets the butcher pick a few extra it will look like a favor to the barber who is very capable of spreading gossip. If he beats a confession out of some petty thief he will no longer be trusted. Unless he upholds his job description to the strictest standards, he can be in trouble. His role is very much the same as a fiduciary.

The moral of this story is: a fiduciary must be spotless to maintain the title. Whether appointed or elected they must be independent and by the book or they will look unreliable to the community they serve. They must have a long record of correctness, integrity and transparency to be fiduciaries in a capacity responsible for the money of others. If they are local 332 plan A fiduciaries it is their duty to make sure that the plan retirees receive benefits according to the plan document and the laws of California and ERISA. They are held to a high standard and should not let even one participant receive less than is due.

When they cause one member to expend a large amount of money to correct their error they are not doing their fiduciary duty. It is nice that they admit the error but it will not be correct until they pay the cost of their error. They had every chance to correct this error themselves. That is the roll of a fiduciary and why there is a market for fiduciary insurance. Its part of the cost of the pension plan. Just as an electrical contractor or electrician must make right their errors. If you are a union electrician you may have corrected a job installed by another member incorrectly, I did and the local reimbursed the contractor.

Did you know that George Washington thought of a brave man as one who does the right thing no matter what? It was a new concept in western philosophy which at the time was more like; get what you can anyway you can. And, if someone hurts you it is justice to hurt them more. No independent third party need be involved.

Since I'm throwing nuggets: did you know that American corporations are holding over a trillion dollars of cash? Enough to stimulate the economy faster and better than the government and not raise taxes.

IBEW Local 332 Pension Plan A

2010-07-02T15:55:00.000-07:00

I just checked the case docket on line. No new additions, therefore we continue to wait for the courts decision on the pension plan motion to dismiss.

My friend Malcom asked me yesterday if the Plan attorneys are Fiduciaries since they represent the plan in this court case. What an interesting question! If they are Fiduciaries then they are responsible for things they miss. For instance, they should know ERISA law inside and out. So how do they explain their omission of USC 1056 (d)(3)(D)(i) and (ii). They included USC 1056 (d)(3)(C) (i), (ii). They were so close, just below, about an inch of reading. USC 1056 (d)(3)(B)(ii)(II) is just above (d)(3)(C), it explains that ERISA includes community property law, another problem with the pension sample domestic relations order when used with the Part A Defined Contribution Plan.

All of this got Mal and I back to the fruit tree in the Roman Town Square. If my memory is correct, because of that fruit tree, Mono Lake is now being replenished with water. This is a little like the story of our space program being designed around Roman Chariots. (But I digress) The tree was on community property and cared for by the villagers. When the fruit of the tree was ready it belonged to the village. No one deserved all of the fruit and every one was entitled to some of the fruit. This is justice, the example of which caused the judge in the Mono Lake case to allow it to continue.

If you are interested in Justice check out Kanwehelp.com Sometimes the establishment flat out goes too far.

IBEW Local 332 Pension Plan A, sample DRO

2010-06-27T21:27:00.000-07:00

Here it is June 27, 2010 and we are still on hold waiting a determination by the Federal Court on the motion to dismiss. My friends kid me because since 2005 I have picked my travel times based on court dates. Or more accurately, when I think I will have a court date. They come and go. Well I’m still amazed that any person can carry a lawsuit into a Federal Court and be heard. What a country!!!

Do to the lack of law-suit news I’ve checked out the sample 332 pension DRO. Its on the internet at ibew332Benefits.com

Paragraph 3: “Spouse is acknowledged to have an ownership interest in the benefits payable”. This was true for me because we were unable, during the divorce, to agree on a value of the pension. I did not buy her out.

Paragraph 4: “The community benefit is the portion of the benefit payable by each Plan which is attributable to Employees employment during the marriage.” This is accepted by ERISA and California Community Property law.

Paragraph 5: “The community benefit under part A shall be calculated by multiplying the total benefit payable to the employee by a fraction. The numerator of the fraction is the Total Years during the marriage for which Employee receives credit under Part A. The denominator is the total years for which the employee receives credit under Part A.” This formula was calculated incorrectly by the Plan in my domestic relations order.
First, they miss-calculated the fraction, although it is wrong in my favor. Second, in the IBEW 332 defined-contribution plan, the community portion is 100% of earnings during the marriage and the spouse portion is 50% of the community. Or to be simple, the spouse gets half of the benefit (plus enhancements) earned during the marriage.

The Plan sites the case of Lehman v Lehman decided May 28, 1998 by the California Supreme Court. The Lehman pension was a defined benefit Plan, the IBEW 332 pension Plan A is a defined contribution Plan. By using the Benefit formula in the Contribution Plan the community property law of California is ignored. And, IRISA demands that spousal benefits derive from benefits contributed during the marriage so IRISA is also ignored. And in my case, both ERISA and California, expect me to get at least half of the pension benefit. I didn't in the Plan calculated DRO.

Editorial comment: The plan learned in 2007, in the published California Superior Court Appeal of Gray v Gray, that the sample DRO is wrong. They were informed by Mark Lipton. But, the sample DRO has not changed.

IBEW Local 332 Pension Plan Part A

2010-06-23T14:53:00.000-07:00

Over the years I’ve heard many union members complain that their union pension plan is unfair. Most of these complaints I considered to be griping by a construction worker who could not get a view point across to an office worker. Without hearing both sides of the gripe it’s hard to judge right from wrong.

Now I am that pensioner trying to get my benefit properly taken care of. (Sorry, I ended a sentence with a preposition!) I have found that IBEW Local 332 Pension Plan is barely connected to IBEW Local 332 union and there is little representation for the individual worker in the Pension Plan. There are members of the pension plan board of trustees with membership in Local 332 but that is a separate and individual function in which they each separately participate. They are not elected but appointed and are therefore not answerable to the union membership. And in fact, would not grant me a hearing, a basic principle in the vast majority of organizations.

I had assumed the same rights and privileges of union membership would be accorded me by the pension plan. Shocking and not true. In the union I have a right to a hearing, and rules of protection from the union and by the union. In the pension plan I received a decision, by the board, based only on my written requests. I was surprised by their denial and therefore delivered my appeal to each board member’s home or business address. The pension plan administrator chided me for being inappropriate. All communications must go through the administrator. The only union board member I could speak to was the Business Manager who seemed sketchy about my correspondence. I was suspicious that they received my request.

It is a real shame that union members get treated this way. Retirement is a huge change in a workers life and each should be able to look back with good feelings toward the union and what it represents. It is difficult to separate bad feelings toward the pension plan from memories of my 40 plus years in the union.

Mom, Monkeys, Pension Plans

2010-06-19T00:42:00.000-07:00

Another week and no decision made by the court. Don’t take this as anything other than a report. One of the hearings I attended involved a case with $100,000,000.00 at stake, they have plenty to do in federal court. It involved just one part of an electronic circuit.

Here is a story I heard today about always doing things the same way.

Scientists put four monkeys in a cage. Always hanging from the top of the cage was a bunch of bananas. Always under the bananas was a ladder. When a monkey climbed the ladder to get a banana a scientist would spray it with cold water.

The four original monkeys learned not to climb the ladder. The scientists replaced one original monkey with a new one. The three original monkeys would not let the new monkey climb the ladder fearing the cold water. One at a time the original monkeys were removed and one at a time new monkeys replaced them until all original monkeys were gone. The second generation of monkeys would not climb the ladder because the original group had taught them not to.

Another example:

When asked by her daughter why she always cut the end off the Christmas ham the mother replied “because my mother always did it that way”. When Grandmother was asked by Granddaughter why she always cut off the end of the ham, Grandmother replied, “the ham was to long to fit in the pan”.

Some times, as I mentioned in my previous post, “because we always do it that way” is a poor answer to a reasonable question.

Check out Kanwehelp.com for more examples

Rehash of Gray's ERISA Restitution Fight

2010-06-11T15:48:00.000-07:00

At this time we are, on hold, waiting for the court to rule on the pension plan motion to dismiss. If the court accepts that I was injured, by the plan, the case should continue. The Pro Se hobby is sometimes controlled by details. Electricians are notoriously poor at written details.

History

In 2005 the IBEW Local 332 Pension Plan Part A gave to my ex-spouse a Domestic Relations Order which has since been proven to be excessive in the court of appeals.

The benefit was calculated according to the plan approved sample DRO.

I have a document from the plan, received in 1999, that shows the plan sample DRO to be wrong.

The first DRO was approved in state court and then “qualified” by the pension plan. It was good enough to fool the state court judge. Even though it did not meet ERISA requirements, which the plan is required to check in order to qualify it. 29 USC 1056 (d)(D)(i)(ii)

What was wrong? The plan formula moved benefits from years after our marriage into the marital years. California community property law is very specific in only allowing credit for years during the marriage. ERISA (the Federal Law) has the same, “ during the term of marriage” requirement. And the plan over calculated the benefit for nine restricted years of past service. 29 USC 1056(d)(3)(B)(ii)(II)

Why do I care? The extra money came out of my check, I got less.

Who am I? The guy who carried the ladder and tools for the 16 years of the marriage. Neither rain or snow or dark of night.etc,etc. ERISA and the State of California mandate that I get at least half of the earnings deposited in the pension during the time of the marriage. No matter what the pension sample wants.

The next step was State Court of Appeal. Appeals court ruled the original settlement was in error and remanded it back to Superior Court for another look. That’s when her benefit was lowered. The plan was informed every step of the way. They could have fixed this problem at any time with just a little embarrassment.

The benefit estimate came directly from the plan. They used their long time sample formula but it was not correct. “Because we always do it this way” is not an answer when asked why. They have another formula which I suggested they use. The official one in the plan document. They made the error even before my ex-wife got this calculation, it was already in the plan sample which they always use. In the old days the person who made the error paid for the fix. It should be the same with the pension plan now.

For the long answer check out; problemisERISA.blogspot.com

Do-it-yourself-lawyer muddles thru slowdown

2010-06-05T14:24:00.000-07:00

Yesterday the docket sheet for my case showed no activity. Justice moves slow in the eyes of a retired electrician. I continue to do research and found that ERISA rules concerning pension plans are for the years of marriage. Seems simple and fair! Why was my benefit lowered by awarding my ex spouse money from outside of the marriage? My research will continue.

Last Monday was memorial day. Here comes some bragging about my father who served in the Pacific aboard an ammunition ship. My father in law was in the same area sinking merchant shipping of the enemy aboard the submarine Tang. That's a longer story. Included is the article written in 1945 about Dad's return.

Dad’s ammunition ship the SS Canada was sunk off Okinawa the evening of April 22nd 1945, 9:59pm. It was reportedly hit by a Japanese kamikaze at the rear gun. Dad always said it was a bomb that hit the ship. One of the navy gun crew and one seaman died immediately. A second member of navy gun crew died the next day. The Navy had trained gunners on merchant ships. The ship was ready for an attack. Dad was ready to help carry ammunition to the gunners when the ship was hit, it went down in 12 minutes. His job was to lower one of the life boats, get on it and leave the ship if the captain ordered abandon ship. At this time the captain was sounding a continuous whistle to let other ships know they were sinking. Dad wished he would lay off the whistle, it was hurting Dad’s ears. As Dad manned the capstan to lower the lifeboat the capstan was not turning, there was no power. They had never drilled the lowering of boats without power. The overloaded lifeboat left the ship, and Dad, as soon as it touched the water. By this time the ship was so low that Dad just stepped into the water two feet below him. He feared being sucked down by the ship as it went under. That didn’t happen, he just had a smooth spot of water to swim in. The next concern was taken care of when he was picked up by a sea going tug. On the tug were several wounded men, from the entire battle, and Dad kept busy supplying first aid at the instruction of the navy corpsman as they went around picking up more wounded.

Dad had been working in the shipyards. He had a disagreement with his foreman and was laid off. That’s Dads story and we can’t expand it now. In 1944 Dad was 31 years old with a family and four children. He was a very easygoing man who was never known to even get angry. My guess is the foreman wanted a kickback from Dad’s wages and didn’t get it. Of course, when Dad was laid off he lost his draft deferment and in 1944 any undefered man was going to serve. He then volunteered for the merchant marine. He made two journeys aboard ships into the Pacific before the end of the war.

When the ship was hit some men were blown into the water, some jumped into the water and others did as they were trained to do, the captain and his whistle is one. Dad went to his station and lowered that lifeboat because others were depending on it. And he knew while he was doing it there would be no room for him. There are a lot of these unsung heroes home from wars. I’m very proud to have more than one in my family.

The SS O’Brien Liberty, http://www.ssjeremiahobrion.org/ docked in San Francisco, is almost identical to the SS Canada Victory. They were steamers because the steam engine had proven itself and could be relied upon. (Couldn't trust those diesel engines in 1940 ya know)

News paper report, WEST COAST SAILORS, Friday June 8, 1945
Two Minutes of Hell
The SS Canada Victory
(as told by Thos. W. Risbridger, Delegate)

I joined my ship, the SS CANADA VICTORY, on the first day of March, 1945,in Benicia Calif. The crew was composed of Davenport, bosun; Gray, carpenter; Jones, maintenance man, on the 12 to 4 watch; Mier, A-B; Napiev, A-B; and Leonard, O.S. on the 4 to 8 watch; Muratore, A-B; McKee, A-B; and Acton, O. S. and myself, (Risbridger,MM).
A near mishap occurred when Jones, Badner, and Leonard, O. S. were held for a slight case of attempted rape. (Well, they say that’s the way to start a trip!)
On the morning of sailing, we found that the above mentioned were missing, and we received word they were held in Benicia. We pulled out from the pier around 8 a.m. and headed out into the bay where we dropped hook and waited for three replacements.
Aldridge, MM; Williams, and Morris made the pierhead jump.
We pulled for sea at approximately 2 o’clock, and the trip started fine. The gang were a swell bunch of guys, and all good sailors, and a good bosun. We had fine sailing and made Honolulu in five and one-half days.
On or about the 16th, we crossed the 180th meridian and pulled into Eniwetok, a couple of days later, where we laid over for three days and received orders to proceed to Ulithi. Upon our arrival in Ulithi we received orders to drop the hook in Southern anchorage, and we lay there day after day, watching convoys come and go from Okinawa.
On the evening of the 21st we received orders to secure and proceed to sea in convoy on the morning of April 22nd (Sunday). The convoy was composed of four Victories, two C-1s troop transports and six or seven Navy attack transports; we were escorted by five cans---and the convoy proceeded at 16 knots with no excitement until the day out of Okinawa when we made contact with one or more submarines. We stood a continuous General Quarters for seven hours before making Okinawa, and upon arrival four days later we were ordered to drop the hook 300 yards astern of the battleship NEW YORK. This night we had an occasional alert, but were under heavy smoke-screen, and the next day we received orders to anchorage approximately 2000 yards North of the main anchorage.
In this new anchorage were five LST’s, two other Victories, all loaded with ammunition. At 6:00 p.m. we went to GP but it was merely one of our own planes, a TBF. We secured at 7 O’Clock and 15 minutes later we turned out again, this time for good.
This night the smoke screen was very ineffective. The moon was full and we were a sitting duck
We had a damn good gun crew, several of them having planes to their credit. The whole merchant crew were at their gun stations as gun crew and ammunition passers.
I was standing in No. 9 Gun Tub on the fan-tail talking to Smith, my gunner, and at approximately 9:30 the Jap suicide planes made passes and dropped bombs on the main air-strip. At 9:59, I was talking to Schmidt, one of the gun crew, and that’s the last thing I remember. When I came too I was laying over the rail aft of the smoke floats, fifty feet from the No. 9 Gun Tub. I looked around and saw No. 5 hold was burning. I thought we were finished. About this time I saw a lot of other guys jumping into the water. I tried to stand on my feet but it felt as though my legs were paralyzed, so I pulled myself over the rail into the water.
I was wearing no life jacket and I saw someone swimming about 200 feet from me. I sang out to him to give me a hand as I could only float on my hands. He came back toward me pushing a piece of lumber and I recognized him as Neil, Stewart Department delegate. I guess I owe him my life for coming back to me.
The bosun was the coolest man aboard the ship. He figured his ship was going up anyway, and sat on the No. 2 hatch smoking a cigarette, and I was the last man off the ship, not going off until the stern was under water.
All the life rafts were jammed, and all the life boats out of use except No. 2. This boat was so overloaded that when it hit the water it nearly sank.
The ship sank in 12 minutes, and all the crew, with the exception of Fred Cherney, Jr., Third Mate, and Johnson, Navy Gunner, who were killed when the plane hit. The rest of the men were picked up within half an hour by Navy boats.
One of the Navy men, Noah, was blown unconscious into the water. He died the next morning at about 4 a.m.
The whole crew was split up on the beach and on different ships, and were assembled together on the APA No. 179 on the morning of the 30th.
We proceeded to San Francisco over the same route we traveled coming out, arriving in San Francisco on the 28th of May and were all very glad and happy to be back.

Brown Formula and U.A. Local 447 Pension Plan

2010-05-31T22:15:00.000-07:00

Today I happened on the U.A. Local 447 Pension Plan web site. www.pipetradesbenefits.org It has some information very similar to my 332 pension. They state that the standard "Brown Formula" was developed by California Courts.
Both are defined contribution plans. The Brown Formula works for defined benefit plans.

HOWEVER:

The pipefitters include a statement "It also should be noted that the formula in paragraph 6 modifies the standard "Brown" formula developed by the California courts. That formula does not take into account the possibility of different benefit accrual rates in different years.-------the Brown Formula will not accurately determine the community property portion of the benefit."

My plan uses the Brown Formula as written, they have refused to acknowledge the community property exception. If you are a divorced electrician or electricians spouse you might want to check your benefit if the Plan wrote your QDRO. ERISA requires plans to follow community property law and if they don't the solution may be in federal court. If you are the electrician (participant) normally you are due at least half of the total calculated benefit.

Gray 332 pension plan ERISA account history

2010-05-30T20:04:00.000-07:00

CALENDAR of Benefit Adventure

June 2002
Ex spouse #2 requests pension (due to total disability) based on 1998 QDRO
Receives $669/month

May 1, 2005
Ex spouse #1 requests pension calculation

October 12, 2005
Ex spouse #2 receives notice of benefit adjustment.
New benefit is $1,363/month with a check for $29,000 in back benefits.
Yes, this is the lady that was totally disabled and just getting by.

April 18,2006
Court hearing awards spouse 2 benefit calculated by the pension plan $580/month

September 2007
Appeals court remands benefit back to Superior court.
Plan is wrong in defining "Brown Formula" as time rule in 1980 therefore the plan
interpretation of the original marital settlement is wrong.
New Benefit is $360/month

August 28, 2008
Letter requesting reimbursement of litigation expense to Board of Trustees

September 29, 2008
Board of Trustees letter of claim denial.

October 31, 2008
Letter of appeal and request for hearing with the Board of Trustees

August 17, 2009
Filed complaint in United States District Court, Northern District of California, San Jose Division

November 17, 2009
First dismissal hearing in Federal Court on complaint seeking restitution by Gray.
Pension Plan does not seem to know that the plan document REQUIRES retirees
to sue in federal court. Gray wins on "jurisdiction" is asked to clarify "claim on which relief can be granted". Definition: better explain what my loss is.

March 23, 20010
Second dismissal hearing. No decision has been issued.

Note: the dismissal motion is a way to dump the case on technicalities before trail at the request of the Pension Plan.

This is traditional Memorial Day. It is because of you who are serving and have served this country that I am able to represent myself in the Federal Court system. THANK YOU

ERISA and the Lone Ranger Generation

2010-05-25T15:56:00.000-07:00

Obviously I'm an old guy, since Social Security payments show up in my account monthly. But what generation? Not the Boomers, their lives started after the war, mine started during the war. Using "the war" is sort of interesting. I have a pre-war car and a fellow asked me which war? Of course, from the cars look, he may have been thinking revolutionary war. But I digress. (digress is a fun word) The fact that some of us think "the war" is WWII is good enough for me. In 1952 or 53 my parents purchased a television and soon found it had the ability to keep us kids quiet. TV had been around for a while but Dad was not going to rush into a new-fangled gadget that probably wouldn't catch on. Dad had built a desk size piece of furniture for his families first radio, top section for the radio bottom for the batteries. Crystal sets went out about then or the family got electricity (I'm guessing here) but all his work was for naught. My sister now has the radio cabinet and uses it as a nice desk. Anyway, Jack Benny was still on the radio with Rochester. Still another argument against TV. Ours was pretty big, a Hoffman about 13 inches, I think. Our friends had an earlier TV with a much smaller screen. The screen was so small they had a magnifier mounted over it but I'm not known for my observational skills or memory.

We would sit and watch Cowboys and Indians for half hours at a time. I think the horses would get tired so an hour show might be too much. Along came the Lone Ranger and Tonto, they must have been doing both radio and TV. They didn't fight Indians they fought wrong and treachery. Often the bad guys were the authorities in town pulling a scam on the poor homesteaders. Don't forget we didn't know where Lone Ranger lived, my guess was in a cave with Silver. The Lone Ranger and his faithful side-kick never killed anyone, the sight of his silver bullet was usually all it took to fix things. We only saw the stories that went past the bullet stage and got serious. The tough stories would take a little riding, shooting and a wound or two. Since this is America the little guy got justice and a silver bullet for being strong and not accepting the wrong being forced upon him. In those days the masculine pro-noun was also for the feminine gender in an either or situation. Well, little Jimmy got this idea of justice and the American way (that may have been Cisco and Poncho) imprinted on his ten year old brain.

What a surprise it was after a life of work, family and trying to be Mom's good boy that the authorities would let me down and short my pension benefit. How do I find Lone Ranger and Tonto. Don't ever forget Tonto, he did all the work. I looked around and realized the Lone Ranger had missed a few chances in my life to help. There are a lot of us and only two of them. They are long ago retired. Usually we don't have time or wish to risk our security, to fight some loss that would cost more than its worth. This time however I have no excuse. This is at least a break-even chance. My time is abundant. There is monetary risk in a law suit but its only me who could be hurt and my pride is not measured in dollars. So lets go for the silver bullet. I also would like to throw in my philosophy of "enough". To be happy I need to have enough. That will be more for some and less for others. I have enough and will still have when this case is decided. Check out TerryStarbucker.com his idea is "halffulism" which is very near "enough". Bottom line, it is my turn to swing the sword at the windmill, it just might work or at least help someone.

The plan admitted it made an error but does the error qualify for restitution? There are five qualifiers in 29USC 1132(g)(1). Degree of bad faith, ability to satisfy personally the fees, would award deter others, amount of benefits in the whole of the plan, merits of the parties and positions. In case law Bittner v Sadoff there are more perimeters. Attorney's fee's may be awarded in exceptional cases at the discretion of the judge. The error must be malicious, fraudulent, willful or deliberate.

Pro Se hobby, justice is in the details

2010-05-21T22:09:00.000-07:00

A word or two to future Pro Se hobbyists. Don't be in a hurry after your complaint is filed!!! Hurry to get it filed because the statute of limitations is creeping closer all the time. This suit has not been a big deal its just a big unknown. The lawyers know not to hurry, most law suits settle before court. They also know the rules and procedures, they may win just because I screw-up and overlook something important or even not important. I have made plenty of errors that have been corrected and the opposition has also made a few. At both hearings they have brought two attorneys, it encourages me to think it takes two pros to defend against one electrician.

Here are some milestones for judging the time needed.
O8/18/2009
Complaint filed, summons issued to pension trust
This summons was handed to the trust by a process server.
ADR Scheduling order, case conference scheduled for 08/18/2009
08/19/2009
Proof of service of summons, process server delivered summons
Consent to proceed before a U.S. Magistrate judge.
09/08/2009
Motion to dismiss filed by defense and related attachments.
Motion Hearing set for 10/27/2009
Memorandum of Points and Authorities to support motion
Certificate of service and Declaration by administrative employee
09/09/2009
Clerks Notice, Deadline for Consent to Proceed before a Magistrate
09/10/2009
Consent to proceed before a Magistrate Judge filed by Defense.
09/16/2009
Certificate of service filed for for above dismissal paper work by defense.
09/29/2009
Opposition to Motion to Dismiss by Gray. If you do not answer with
an opposition the defense wins by default.
Proposed order granting order for Motion Dismissal. A detail that must
be completed. It is in the court Pro Se handbook with many others.
10/13/2009
Defense files reply to Opposition to Dismiss. No answer needed for this one.
10/16/2009
Clerks Notice continuing motion hearing. Now set for 11/17/2009
10/21/2009
Motion for leave to amend complaint. Filed by Gray to clarify ERISA statutes
10/28/2009
Request for production of documents by Gray. I was way too early with this
as of today, 05/21/2010, it still is not appropriate.
10/29/2009
Objection to request for documents by defense
11/09/ 2009
Statement of non-opposition to Defendants Objection to Plaintiffs
objection to Plaintiffs Request for Production of Documents. (legal speak for
"sorry I jumped the gun" by Gray.
11/10/2009
ADR Certification by parties and counsel of discussion of options. (Phone Call)
11/16/2009
ADR cert filed by Gray
11/17/2009
Motion Hearing

Misc. paper work going here and there

12/22/2009
ADR clerks Notice setting phone conference on 1/20/2010
01/15/2010
ORDER by Magistrate Judge, Granting Plaintiff motion to amend, granting
in part and denying in part Defense motion to dismiss
1/19/2010
ADR clerks notice setting phone conference on 3/18/2010
1/25/2010
Second amended complaint filed by Gray
02/05/2010
Motion to dismiss second amended complaint by Defense
Points and Authorities and other paper work for above
02/16/2010
Opposition to Defendants motion to Dismiss and misc papers
03/08/2010
Reply to Opposition to dismiss by Defense
03/23/2010
Motion to dismiss hearing

There are sixty five entries on the docket for this case as of today. Some entries include more than one piece of the puzzle. As you can see the ADR phone conference keeps moving ahead, the ADR process itself will be before any trial. And of course we are not into discovery yet, that should be before the ADR process. Certainly a Pro Se must be patient, not only is the court ruling on the law but it is interpreting the Pro Se's broken legalise and non-conforming order of elements. Kind of like the old plumber used to say: $50 per hour if I fix it or $100 per hour if you help.

The error that caused this altercation was in the fall of 2005, a retiree best be long lived.

Congress enacted ERISA to protect workers

2010-05-18T20:43:00.000-07:00

Congress enacted ERISA for the purpose of protecting retirees against administrative risk. At that time most plans were administered by the companies responsible for the pensions. Therefore some "conflict of interest" could creep in on the company level. There were also instances of less than wise investments with associates and plans that went broke affecting thousands of workers. At this time regulation was pointed at the investment and management end of funds where the big money was tempting fiduciary conduct. You could say ERISA has been paid for by the pain of the workforce.

Now , with the emergence of defined contribution plans the need to regulate at the benefit end of the chain is apparent. An error that affects a single retiree account can have a huge effect on one person and none on the overall plan. As an example my ex spouse's benefit more than doubled due to plan error. The overage came out of my account, lowering my benefit, and had no effect on the over all plan. Before 2008 and the LaRue v DeWolff decision a single participant had little recourse. The scenario is still not fair, The court allows restitution but not total compensation, therefore to get a small sum like mine you are on your own.

This error is ironic in that it was caused by a pension plan representing a union and carrying the union name. I have met several people disappointed in their "union" pension plan, it is unfortunate that the union has no way to integrate their "worker first" philosophy into plan administer perspectives. It certainly would be an improvement in the plans and help union P.R. I think an ombudsman could be the answer. The trustees need an independent advisor outside of the plan. It is again ironic that a union which protects and represents workers is so trustful of a profit making administrative business.

A little history. In the late sixties there was talk of our pension plan. It started and then stopped and started again as it is now. First it was a traditional annuity and then changed into an annuity and a cash fund. The biggest membership controversy was the annuity but a lesser was ex-spouses. We accepted a formula that would award spouses only their share of earnings during the marriage. Just as mandated by California community property law. Certainly we would not have accepted a formula that gave any spouse more than their share. After all, we were talking about a wage deduction of 10 cents per hour in 1970.

defined contribution plan and LaRue v. DeWolf

2010-05-14T15:21:00.000-07:00

My 332 pension is a defined "contribution" plan. Which is easy to confuse with a defined "benefit" plan. Defined benefit plans were predominate at the start of ERISA and the law was meant to protect participants in those plans. Defined contribution plans came later and did not quite fit the mold. Some of the laws didn't fit the new plans either.

In 2008 Justice Stevens, in the Supreme Court Ruling on LaRue v. DeWolf,delivered this opinion of the court. For the defined contribution plans, however, fiduciary misconduct need not threaten the entire plan's solvency to reduce benefits below the amount that participants would otherwise receive. Whether a fiduciary breach diminishes plan assets payable to all participants or only to particular individuals, it creates the kind of harms that the concerned the 409's draftsmen." In common language, now participants in a "defined contribution" plan are able to seek restitution from the plan for a reason not allowed in the original law.

An example of the difference in the two two plans. The benefit plan awards the pensioner the same amount for each year of service. If you use the (so-called) time rule and average all the years of benefits you get the original benefit. $20 for twenty years is $400 of benefit or $20 per year. The contribution plan puts a glitch in the same formula for community property states where benefits are earned per term of marriage. To compute the community property benefit with averages one needs to use the time of marriage. Example: Marriage #1 ten year marriage, $100 benefit total is $10 per year. Marriage #2: ten year marriage, $300 benefit total equals $30per year. One spouses benefit should be based on $10 per year the other on $30, not both on $20 per year.

SO WHAT? California is a community property state and ERISA mandates that the pension plan abide by community property laws so FORGET the normal time rule use with "contribution" plans. If the spousal support for either marriage is increased above the plan formula, the plan will have violated ERISA law by qualifying the Domestic Relations Order. If the plan should deduct the overpayment from the participant benefit (its got to find the money in some account) the LaRue v. DeWolf case law becomes very important. At least now the participant can take the problem to a judge.

English, Law-speak, Blogish

2010-05-11T16:11:00.000-07:00

My new hobby is not just the law, it is also getting the word out about ERISA Pension Plans and how they work. To do that I've been learning "blogish" a new language for me. You would think this internet thing was centuries old by the amount of vocabulary needed to understand it. Its another thing to keep my old mind active and if I don't master it I'll bumble through like a lot of other things that have come my way. An example word is "sitemap", we had those on blue prints that haven't been blue since before my time. So far the two sitemaps aren't connected. Actually this is my second second post because I pushed the wrong key and the first one went Bye-bye-baby. Law also has its own language. I'm allowed to get restitution from my ERISA Pension Plan but not compensation. The difference? Restitution is only the money spent getting the error corrected. Compensation would be everything, money spent, time and aggravation. So, this is not a big reward type of claim for which attorneys fight. And it leaves very little incentive for Pension Plans to do it right.

2010-05-09T03:17:00.000-07:00

Background

My new Hobby really started in 2005. My Pension Plan volunteered a benefit estimate to my ex-wife which was more than her share of the pension account. When that benefit was approved by the state court the Pension Plan would lower my benefit to balance the account.

Guess what, I was not happy.

Ultimately, on appeal in state court, the spousal benefit was adjusted. It was a compromise because neither I nor my ex-spouse cared to return to court. I had already spent too much for something that should not have a cost and so had she. As a matter of fact, the pension plan picked up the cost of calculating the first benefit.

My cost was about 30K and a loss of another 10K due to the compromise. So what to do? Forget it because the cost in Federal Court is a minimum of 10-20K or do it myself. What the heck, I'm now retired, what will I do with all the time? How about a new hobby, Federal Court Pro Se. This winter my friends were in the desert soaking up the sun, I was typing at home.

I paid my $325 filing fee and started learning the Pro Se Hobby. Very confusing, but the court clerk was very helpful and so was Nolo-press. The Federal Court has a Pro Se handbook and I have all this free time, how hard can it be. To an electrician "hard" means strenuous in a physical way. To a Pro Se" hard" has a whole new meaning which I've yet to comprehend. Could "Hard" be as in "the big hard attack", no that's heart attack. Oh, ya, the Court also has procedures, court rules, and judges rules and maybe some I haven't noticed. The explanations are written for lawyers. Somewhat like the Chinese translations that came with early computers.

Next was the text of the complaint. Sometimes luck does step up, my friend is a retired court reporter. She did a wonderful job of getting me started and these computers are easier to read than a lead pencil, so Judge Lloyd might not object. There are other things too, if you try it yourself it will work out. Federal Court really seems to be looking for justice which is more than I found in the first state court. I don't care to be detailed, but close is my goal with this blog.
Details are boring like procedures and rules.

Now we can get to it. They will answer, I will reply and the judge can rule. Except they have filed a motion to dismiss do to jurisdiction and something called "Failure to state a claim upon which relief can be granted". This is now reality, they don't face the music if the jurisdiction or "relief thing" stop the whole case. Welcome to the law.

First hearing to dismiss.
Although I watched a few hearings to get the lay of the land, standing in front of ten (seemed like fifty) attorneys and the judge was daunting. However, Judge Lloyd went out of his way to get my view of the case and circumstances. Bottom line, I won on jurisdiction and was given a chance to improve my complaint regarding "relief" by amending the complaint. The ruling took four weeks and the logic is very precise and logical especially to an electrician. Oh, Pension Plan requires all complaints be in federal court, they didn't read their own directions and they did admit the first benefit calculation was wrong.

Second hearing to dismiss.
Once again Judge Lloyd seemed to want the facts as I see them and was certainly a Gentleman.
There were a couple of Pro Se ahead of me that could have wore on him a tad, if so, it didn't show. Once again a strange thing from the defense. We both used the same case law to make opposite conclusions. The difference being they used only the first half and I used the whole thing. Its been three weeks and the judge has yet to rule. Perhaps next week.