The failure of the current members of the Coast Committee, Vice-president Spinosa and Coast Committeemen McEllrath and Ortiz, to persuade the delegates at the Portland Caucus to hire the lawyer who claimed he could get a “9-0” win at the Supreme Court on the issue of “lifetime” medical benefits, has revealed their inability to lead as well as their poor judgment to the delegates at the Longshore Division Caucus. For those of you who were not present, here is more of the background of the controversy which may lead you to the same conclusion.
For several years prior to the changes in the Summary Plan Description regarding the welfare benefits of pensioners, Benefit Plans staff and counsel had been aware of lawsuits against other welfare plans brought by “downsized” employees and others who had been denied benefits under those plans. Legal precedent had been established that in a dispute over the difference between a negotiated agreement and a summary plan description, the provisions in the description might prevail over the agreement – under certain very limited circumstances. Evidently to prepare for such a contingency, Benefit Plans staff had been changing the language in forms and letters used by the Benefit Plans staff. By 1994 they had revised the Summary Plan Description, which they decided did not accurately describe the provisions of the Pension and Welfare Agreement. They changed the “lifetime eligibility” language to a new description of benefits to which pensioners are entitled, and they did so without consulting with the Union Trustees of the Benefits Plan, which they were obliged to do, since the job of communicating the contents of the plan is the responsibility of the Trustees.
The 1994 SPD revision occurred during the administration of David Arian and while Jim Spinosa was serving his term as Coast Committeeman and Benefits Plan Trustee. However, it was not until the fall of 1996 that the controversy broke out, immediately following the battles over the ratification of the 1996-1999 Longshore Agreement. The change in the language was reported by Coast Committeeman Richard Olson to leaders of the Pacifica Coast Pensioners Association, characterized as a “giveaway” of their welfare benefits by Brian McWilliams. Rather than to alert his fellow officers on the Coast Committee and to try and devise a united strategy within the Union to confront the employers over the underhanded and possibly illegal revision, Olson made a public accusation of wrongdoing and thereby created panic among the pensioners as well as provoked rage against McWilliams. That scored him some points with those who were upset about the new contract, and it created another problem which led to an even bigger pretext to attack McWilliams, the famous letter to the pensioners signed by McWilliams and Miniace (retyped at the end of this message).
In an effort to calm the many worried pensioners and widows who were calling every day, McWilliams asked the Benefit Plans Office to draft a letter reassuring the pensioners that nothing had happened to change the status of their benefits, to be signed by both him and Miniace as joint guardians of the plan. He also met with Miniace and demanded the reinstatement of the lifetime language. The letter was drafted, approved by Coast Committee members Rich Austin and Glen Ramiskey as well as the union’s attorneys, and sent to the pensioners bearing the signatures of McWilliams and Miniace, on November 18,1996. There was not an agreement reached between the Union and the PMA to reinstate the language. This is how the controversy over the “lifetime benefits” issue was born.
The joint letter helped to calm the pensioners, but McWilliams’ political opponents exploited the letter, which was not something he just did on his own as his accusers have maintained, and they took advantage of the opportunity to construct a grandstand from which they have sniped at McWilliams for the last three and one-half years. His attackers conveniently overlook how the need to reassure the pensioners was the result of Olson’s comments. That part of the controversy just hasn’t received much attention, and who wants to dwell on inconvenient details at this late date? It has been forgotten, and in repeating the accusation over and over that McWilliams “gave away” a benefit, his attackers have confused the membership and have demonstrated a reckless disregard of the destructive consequences their crusade against McWilliams has had in the political life of the union. Since that event, rational discourse has given way to vilification and demonization of McWilliams. For the crime of writing a truthful letter which needn’t ever have been considered had Olson brought his discovery to the attention of all the other officers so they could deal with it, McWilliams was accused of collusion with the employers, of having sold out the pensioners, the poor starving widows and untold future generations.
Of course, there were delegates who knew better and tried to say so, but an unholy alliance began to behave more like a mob than a democratic body, with booing and jeering for anyone who dared to challenge the prevailing opinion. The atmosphere was being created in which anyone who came to his defense came in for the same treatment that McWilliams was getting. No surprise that fewer and fewer delegates spoke up. Privately, they might deplore what was going on, but not many were willing to say so. Particularly shameful episodes occurred when President Emeritus Jimmy Herman was booed from the mike as he tried to address the 1997 Honolulu Caucus – his last – and when, in violation of its own by-laws, the March ’98 Caucus allowed Olson, who had been removed from office, to have “fraternal delegate” status despite the fact that he had not been elected to represent anybody, and he enjoyed more mike time than most of the elected delegates.
The technique of misrepresentation and intimidation was so successful that it has been used over and over again. The rest of the Coast Committee (Spinosa, McEllrath, Ortiz) later accused McWilliams’ approval of a $320,000 legal settlement in Tacoma over their objections. The minutes of their meeting clearly indicate their understanding with a slightly lower amount on the advice of the attorney. But when the settlement aroused controversy, the others folded, turned tail and pointed the finger at McWilliams. He was accused of violating the “Statement of Unity” signed by McWilliams, Spinosa, McEllrath and Ortiz, which provided that “to restore the faith of the Longshore Division,” all agreements must have signatures of both the President and Vice-president. But when McWilliams challenged the Barge Agreement signed by Spinosa, the Unity Agreement was canceled. This so-called “Unity” agreement was another sham created as a weapon to be used against only one of the officers – the one they wanted to get out of their way.
Another notorious example: the attack on the 26th Amendment to the Pension Plan, which had been negotiated by McWilliams and the prior Coast Committee (Austin and Ramiskey), and is responsible for the ability of PMA to meet the union’s extraordinary pension demands in the last set of negotiations. The Spinosa-McEllrath-Oritz Coast Committee turned that completely on its head, having learned that a lie told over and over again begins to sound like truth. In keeping with the principle that the bigger the lie, the more likely it is to be believed, they have called it malfeasance amounting almost to theft. We should be thankful that their efforts to overturn it after they took office were unsuccessful. But that failure to undo a sound decision didn’t discourage them from their flirtation with the attorney from St. Louis, and his phoney promise of an expensive Supreme Court case. Their bad judgment is at least consistent.
Now that the Caucus has given Spinosa, McEllrath and Ortiz the direction that they did not desire or expect to get, is there a likelihood that the issue of “lifetime” medical benefits can finally be resolved? If the past is any guide, not likely. After all, the Spinosa-McEllrath-Ortiz Coast Committee did not follow the initial Caucus directive three years ago to submit this issue to the Coast Arbitrator, opting instead to go along with a flaky $5 million program promising the stars. Their method of “leadership” indicates the possibility, unfortunately, that they may actually not understand the complexity of the Pension Plan and its administration. If you read the minutes of the Portland Caucus, starting around page 60 and going for about 10 pages, you may find the basis for drawing such a conclusion yourself. Or, you may draw an even less encouraging conclusion. Read those slippery comments slowly and carefully.
Another unpleasant possibility is that they understand it, but have taken this issue for a long ride to further their own personal political ambitions. They have clearly used the “lifetime benefits” issue as a means of attacking Brian McWilliams, yet they have not demonstrated the ability or inclination to figure out a solution to the biggest problem in the way of obtaining such a benefit: the Welfare Plan is not financed like the Pension Plan. There is no way to avoid this reality, no matter what the courts or arbitrators rule on the language in the Summary Plan Description. (Show me an arbitration which produced more than a dozen time-in-lieu payments. )
The employers don’t have a big pot of money set aside for a vested welfare plan, because that one was never negotiated. Leaders such as Brian McWilliams, who have the interests of the rank-and-file foremost in their hearts and minds, have told you this and yet they have been falsely accused of a sellout, but it is a sellout of the imagination, a phoney concoction. The attorneys who have analyzed the situation for the union have given their legal opinions on the likelihood of various judicial outcomes, which might conceivably bring about the reinstatement the disputed language, but that’s about it. No money would come forth, just a few sentences that’d give us what we’ve already got – and what we get is a very good thing indeed, thanks to the vision and wisdom of our early leaders.
All we’d get out of this legal adventure proposed by Spinosa and the others is the obligation to pay out more per capita in legal bills, as they have become accustomed to having the membership do. Fortunately, our delegates put their feet down at the $5 million price tag, the exhorbitant fee we would have been called upon to pay to the attorney from St. Louis who “guarantees” the “9-0 victory” at the U. S. Supreme Court. Now that’s not only a lot of money to pay for no benefits (for us), it would be an obscene waste of the membership’s money. Allowing this character to waste the time of our Caucus was an outrageous and arrogant abuse of the Membership’s resources all by itself, and the Coast Committee members ought to be ashamed of themselves. You can be sure that they are not, but they will notice your outrage if you vote them out.
There is more that could be told about the furious infighting that has raged behind the scenes of this deplorable episode. As is commonly the case, there are the elements of personal animosity and naked ambition lurking beneath a veneer of self-righteous rhetoric, the ugly material which collects at the heart of a political feud. We have heard over and again how McWilliams did this and that on his own, compromising the interests of the members for whatever particular reason, yet those charges have never been substantiated. Despite that, the attacks over the years have resulted in the removal of the ILWU International President from the Coast Committee, to the obvious detriment of its ability to serve the members of the Longshore Division. Look at the garbage they served up to deal with the SPD controversy – more of the same aimless and expensive talkfests, at our considerable expense.
In its dimished capacity, the Coast Committee has toyed with the idea and then recommended to the Caucus a costlly legal adventure which on its face is ludicrous. The question every member of this union must deal with is, what will these folks do if they seize full command of our great Union and its assets – the precious gains won with the blood, sweat and tears of our parents and grandparents? Are you really prepared to put all of what you’ve got and hope to achieve in Jim Spinosa’s unsure hands?
1. Details of the changes in the Summary Plan Description
2. November 18,1996 letter to the pensioners
The language from the old SPD, issued in 1982, states that “most pensioners retired under the ILWU-PMA Pension Plan and the ILWU-PMA Watchmen Pension Plan have Welfare Plan eligibility for their lifetime as pensioners.”
The phrase, “eligibility for their lifetime as Pensioners” was changed in the 1994 SPD from this clear language to this difficult passage: “most Welfare Plan participants who become Pensioners. . . have Welfare Plan eligibility beginning on the day they become Pensioners. It is expected that eligibility will continue until the Pensioner loses eligibility as explained on page 17,” where the “Loss of Eligibility” section states that “Welfare Plan eligibility ends upon death or any of the following events: Pensioners: ceases to be a Pensioner; failure to maintain enrollment in Medicare Part B when required.”
(Translation: you have eligibility as long as you are a pensioner. When you cease to be a pensioner, or are not enrolled in Medicare Part B, you lose eligibility. It doesn’t spell out all the ways you lose your status as a pensioner, but we all realize that one way is to die, and another way is, if you are a surviving spouse, you get remarried. )
Another edition appeared in 1995 without the “lifetime as pensioners” statement. It reads,“Most Pensioners. . . have ILWU-PMA Welfare Plan eligibility as Pensioners.”
The 1982 SPD also included the disclaimer that its information “is subject to, and in no way modifies or interprets, the provisions of the ILWU-PMA Welfare Agreement.” The 1994 SPD contains such disclaimers in several places.
Letter from ILWU-PMA Benefit Plans/ILWU-PMA November 18,1996
To: ILWU Longshore, Clerks, Walking Boss/Foremen and Watchmen Locals From: ILWU-PMA Trustees Re: Welfare Plan Eligibility and Benefits for Pensioners and Survivors
Union and Employer Trustees of the Welfare Plans have joined together to explain some important facts about Welfare Plan eligibility and benefits for pensioners and survivors.
Facts: There has been no change or takeaway of retiree or survivor Welfare Plan benefits. The recently ratified Pacific Coast Longshore and Clerk’s collective bargaining agreement provides, for the life of the contract, maintenance of benefits for retirees and survivors as well as for active employees.
Welfare Plan benefits for retirees and survivors have not been reduced or taken away by the Trustees or in the collective bargaining process for decades, since the inception of the Plans.
Unlike pension benefits, which are pre-funded, vested and guaranteed under federal laws, Welfare Plan benefits are and always have been provided on a pay-as-you-go basis subject to ILWU-PMA collective bargaining.
It has been and continues to be the intention of the Trustees to provide Welfare Plan benefits for the lifetimes of participants and beneficiaries, subject to ILWU-PMA collective bargaining.
Statements in the Pension Plan summary plan description booklet regarding lifetime Welfare Plan legibility were removed to avoid misleading people into believing that Welfare Plan benefits are guaranteed in the same way that Pension benefits are guaranteed.
Summary plan description booklets describe the benefit plans in brief. The information in the booklets is subject to and does not modify the provisions of the Plan Agreements and the collective bargaining agreements.
There has been no change or takeaway of retiree or survivor Welfare Plan benefits. Rumors to the contrary are false.
s/Brian McWilliams, President, ILWU Joseph Miniace, President, PMA
cc: Area Directors, PCPA Clubs, Auxiliaries
