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FOLEY v. INTERNATIONAL BROTH. OF ELEC. WORKERS

August 25, 2000

EDWARD J. FOLEY, SR., PLAINTIFF,
V.
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS LOCAL UNION 98 PENSION FUND, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Lowell A. Reed, Jr., Senior District Judge.

FINDINGS OF FACT, CONCLUSIONS OF LAW, AND VERDICT

II. FINDINGS OF FACT*fn1

Plaintiff Edward J. Foley, Sr. ("Foley"), is a participant in the International Brotherhood of Electrical Workers Local Union No. 98 Pension Plan ("Plan"). (Revised Stipulated Facts, at ¶ 23) ("Stipulation").

The plan is administered by the Board of Trustees ("Trustees") of defendant International Brotherhood of Electrical Workers Local Union No. 98 Pension Fund ("Fund"), with the assistance of counsel and staff. (Stipulation, at ¶ 5).

The Plan provides that for the years prior to 1975, a participant suffers a break in service and forfeits all prior credited service if he or she failed to work in covered employment for at least a total of 600 hours in a consecutive two-year-period. (Plan, Art. I, § C(1)(a), (b), pp. 2-3, Plaintiff Exh. 1; Stipulation, at ¶ 7)

The Plan contains an exception from its break-in-service rule under which a participant will be excused from his or her break in service and will not lose the pension credits already earned for those prior years if was, during the break in service, "continuously available for work within the jurisdiction of the Union and was unable to obtain Covered Employment" ("break-in-service exception"). (Plan, Art. I, Section C(1)(c)(i), p. 3, Plaintiff's Exh. 1; Stipulation, at ¶ 8).

The Plan provides "that all . . . interpretations and decisions shall be applied in a uniform manner to all Employees similarly situated." (Plan, Art. V(A)(1), p. 45, Plaintiff's Exh. 1).

Plaintiff worked in covered employment during the years 1959 to 1971, earning 12.5 years of pension credits under the Plan. (Stipulation, at ¶ 24).

Plaintiff did not work in covered employment from 1972 to 1981, and thus experienced a break in service under the Plan. (Stipulation, at ¶¶ 20, 27).

Plaintiff returned to covered employment in 1981, and retired in 1996. (Testimony of Edward J. Foley, Sr.).

In December 1988, the Trustees resolved to grant plaintiff eligibility to receive the pension credits accumulated prior to his break in service under the break-in-service exception. The minutes of the 1988 meeting reflect that Foley's 12.5 years of credited service accrued from 1959-71 were restored after an investigation by Fund counsel revealed that Foley was available for work but unable to locate work for the period 1972 through 1980. (Stipulation, at ¶¶ 10, 29).

On October 28, 1994, former Trustee Fred J. Compton sent a letter to Fund counsel, Laurance E. Baccini, in which Compton accused Foley of misleading the Trustees with respect to the 1988 resolution to grant Foley an exception from the loss of accrued credits under the break-in-service rule. (Stipulation, at ¶¶ 13, 30).

In response to Compton's letter, the Trustees created a subcommittee consisting of Trustee Thomas J. Reilly, Jr., and Fund counsel, Laurance E. Baccini, as staff, to investigate Compton's allegations. (Stipulation, at ¶ 31).

The Confidential Report was presented to the Trustees at some time prior to February 22, 1995. (Testimony of Thomas J. Reilly, Jr., Roy Dantz, Dennis Link).

The Confidential Report contained a finding that prior to Foley's case coming before the Trustees, the "available for work-no work available exception ha[d] been applied liberally in almost all case in which it has been ...


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