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CARR v. TRUSTEES OF THE HOTEL & RESTAURANT EMPLES.

April 6, 1984

LONZIE CARR
v.
TRUSTEES OF THE HOTEL & RESTAURANT EMPLOYEES AND BARTENDERS INTERNATIONAL UNION PENSION FUND



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 I. INTRODUCTION

 This action was brought under Section 502(a)(1)(B) of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), to recover benefits due plaintiff from the Hotel & Restaurant Employees and Bartenders International Union Pension Fund ("Fund"). Jurisdiction was based on 28 U.S.C. § 1331. Upon the death of the plaintiff in 1982, the parties stipulated to substitution of Caroline Carr as a plaintiff both in a representative capacity on behalf of her late husband and in her own right. The issue is whether plaintiff is entitled to credit for service prior to employer contributions to the Fund on his behalf. By stipulation the evidentiary record in this case consists of stipulated facts and the deposition of plaintiff Lonzie Carr. Following a non-jury trial on that record, the court finds in favor of plaintiff.

 II. FACTS

 On or about October 1, 1967, the Local 111 Pension Trust Fund was established with an employer association to provide pension benefits for participants in the Fund. (Stipulation No. 6). The Local 111 Pension Fund was merged on July 9, 1975 with the Hotel & Restaurant Employees and Bartenders International Union Pension Plan (Stipulation No. 7). The pension fund is financed by contributions from employers according to the terms of collective bargaining agreements. Employees of contributing employers become eligible for benefits according to the terms of the Plan.

 Local 111 had a collective bargaining agreement with the Ambassador Restaurant since at least 1964. (Stipulation No. 5). The Union and the Restaurant entered into an agreement dated September 28, 1970 that required, inter alia, the Restaurant to pay contributions to the pension fund for an employee (William Thompson) from October 1, 1970 and for all other employees from July, 1971 (Exhibit D to Stipulation).

 Mr. Carr applied for a disability pension on March 26, 1978 (Stipulation No. 14). The application was denied for lack of adequate years of credited service necessary to qualify for benefits under the pension plan (Exhibit XX to Stipulation). The Fund records show no employer contributions for Mr. Carr for the period from the inception of the Fund on October 1, 1967 until September 1, 1971. (Stipulation No. 13). In denying Mr. Carr's claim, the administrator determined that because no contributions were made for Mr. Carr for two years subsequent to 1967, he incurred a break in service in 1969 that lost him credit for all service accrued through September, 1967, so that he had less than the required number of years for eligibility. The Appeals Committee affirmed this determination and also found insufficient evidence that the Ambassador Restaurant, Mr. Carr's employer for the disputed period, had a contractual obligation to make pension contributions prior to 1971. Defendants admit that Mr. Carr complied with all procedural steps, including exhaustion of internal administrative remedies, and that he would have been entitled to benefits but for the lack of employer contributions from 1967-71 and the consequent alleged break in service (Stipulation Nos. 13, 15).

 III. DISCUSSION

 Plaintiff brought this suit pursuant to 29 U.S.C. § 1132(a)(1)(B) which provides:

 
(a) A civil action may be brought -
 
(1) by a participant or ...

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