Some corrections must be made in response to those replying to this message board about the “5 million guarantee,” the facts should be made known to all who would like to search for the truth. In particular, this posting is a response to Richard Austin’s post dated June 16, 2000.
God help us, Austin being a former vice president and former coast committeeman, people that do not know better might actually listen to him. Austin has not yet learned to completely research a subject as vitally important as pensioner’s lifetime medical coverage before putting out negative, misleading, and wrong information pertaining to our pensioner’s lifetime medical benefits.
Austin states in his June 16 post that “The old timers at the 1971-1972 caucus knew the ropes, as did Harry Bridges and the Coast committee.” What Austin neglects to tell you is what Harry Bridges adamantly stated to the delegates at the Feb.15, 1972 caucus.
Bridges: “I already stated, subject to challenge, that this is the best pension contract in the country – again industry wide. And when you look at a pension contract, you just don’t look at the amount of money that you get every month. I want to add something to it. There is not another pension contract industry wide where after the pensioners get pensioned, their medical bills are paid for life for themselves and their families, that’s a fact, that’s a fact, And now we add dental care and prescription drugs not another deal like it in the United States of America.!”
I don’t suppose Austin believes that Harry was lying to the entire delegation at the 1972 caucus. For Austin’s argument, he relies on the point that active members paid $53.41 to replenish the welfare fund. Harry clearly believed by his remarks to the 1972 caucus that pensioners had life-time medical benefits. There is really no proof that we were obligated to pay for pensioners benefits, we did so on a voluntary basis. This was also before the Employee Retirement Income Security Act of 1974 (ERISA). Employers were not subject to today’s strict financial reporting and disclosure requirements. The information that the SPD committee has uncovered shows that up to the point of the 1972 strike the ILWU had over twenty years of guarantees by the employers and the Union that all pensioners received lifetime medical coverage, a point that was never objected to by the employers.
In 1997, when Austin was the Vice President he wrote a letter dated June 27, 1997, to Del Castle, Secretary Seattle ILWU Pensioners Club. Austin States: “It is not accurate for anyone to suggest that MOB is a guarantee for life it never has been. MOB is a product of negotiations. Active members do not have a lifetime guarantee and neither do retirees.”
Austin is wrong again. The first pension agreement went from 1951 to 1961. It was a 10-YEAR AGREEMENT. The coast contracts were NOT 10-year agreements, every pensioner under the pension agreement was guaranteed lifetime medical coverage. The benefits for pensioners could not be negotiated contract to contract for pensioners when they retired under the first 10 year pension contract.
Here is a direct quote from the 1951 Dispatcher dated 1/19/51 Title: “Welfare Plan Benefits Won for Retired Members” The article states: “ILWU’s Pacific Coast longshoremen, ship clerks and walking bosses who retire can look forward to hospital-medical-surgical coverage for life under the ILWU-PMA Welfare Plan plus $500 life insurance” Now this is just one example of many, I personally went through every issue of every Dispatcher from 1948 to 1998 in order to find out what the old timers knew about their hard fought for lifetime benefits, what I found astounded me, repeatedly you see quotes of guaranteed lifetime benefits. I made copies of each quote and reference to lifetime benefits and ended up with twenty full pages. If you want to read them all, log onto the internet and type this address into our location box http://home.earthlink.net/~chwbiii/summery.htm. It is the unofficial local #13 web page.
Another quote of Austin’s from his letter to Seattle pensioner Del Castle states: “SPD’s (summary plan description) contain summaries of benefits, the actual document that describes our welfare is titled the ILWU-PMA Welfare Agreement it is the legal document that describes our benefits” Austin further states: “A few sea lawyers have taken it upon themselves to interpret the law and have suggested the SPD’s always take precedent over the ILWU-Welfare Agreement. Our International Union Attorneys however do not agree with that interpretation, when it comes to legal interpretation, however, I’ll put my money on our International Attorney’s.”
What we all need to do now is ask Austin which International attorney he is putting his money on, as we have opposite opinions on SPD language from two different attorneys in the same firm. For those of you that don’t know, Austin was referring to an opinion put out by Union Council Richard Zuckerman on November 21,1996. Three days AFTER Brian McWilliams signed a letter with PMA boss Joe Miniace stating that the lifetime language doesn’t belong in the Pension SPD booklet. What type of Union President would sign a document with the PMA president stating that lifetime language doesn’t belong in the SPD. For that matter, what type of union attorney would write an opinion three day’s after the fact, with the purpose of the opinion to justify McWilliam’s actions.
Union council Zuckerman made the following improper, incorrect and misleading statement in his opinion to the trustees. “To the extent there is a difference or inconsistency between the SPD and the plan documents, the plan documents prevail.”
Here is what the 5th Circuit Court of Appeals, in Scott Fallo v. Piccadilly Cafeterias Inc. stated in their 1997 opinion in an SPD case: “ERISA requires plan administrators to provide it’s participants with an accurate, comprehensive, and easy to understand summary of the plan. The SPD is intended to simplify the language of the plan, allowing the average plan participant to understand his rights and duties. the SPD is interpreted as a whole. If the language of the SPD conflicts with the language of the plan, the SPD is given effect. Ambiguities in the SPD are resolved in favor of the Qualified beneficiary. We have rejected the notion that the SPD should be interpreted in light of the plan. It is the SPD and not the plan upon which the average beneficiary has relied. The SPD most nearly represents the intention of the parties.”
Or how about this one from the 2nd court of appeals, Heidgerd v. Olin Corp.1990. “It is of no effect to publish and distribute a SPD designed to simplify and explain a voluminous and complicated plan document, and then proclaim that any inconsistencies will be governed by the plan. Unfairness will flow to the employee for reasonably relying on the summary booklet. We conclude that where the terms of a plan and those of an SPD conflict it is the SPD that controls.”
Dozens more cases with language equal to and better than those provided herein can be found by anyone with internet capabilities, and the desire to seek the truth. These can be found in all the Circuit Courts and some Supreme Court cases. So who’s lying, the Circuit Court and Supreme Court judges, or people like Miniace, McWilliams, and Austin. And what about our so called Union attorney Zuckerman, he is writing opinions against the best interest of our Union and in direct conflict with well established, long-standing case law. Zuckerman’s opinion not only is in conflict with the law cases, it is in direct conflict with another Union attorney in the same firm, William Carder.
In case you’re still with me Austin, Carder is the attorney that I would put my money on. He wrote an opinion on SPD language on February 24, 1992 to the Alaskan ILWU director John Bukosky. The opinion favored the Union and was in accordance with established law cases.
Carder states: “Moreover the ILWU-Alaska welfare plan SPD states explicitly that ‘most pensioners retired under the ILWU-Alaska pension plan have welfare plan eligibility for their lifetime as pensioners.’ Similarly, the ILWU-Alaska pension plan SPD states explicitly that ‘most pensioners (and their qualified dependents) have ILWU-Alaska welfare plan eligibility for the pensioner’s lifetime. . . ’ In view of these statements, we have little doubt that the courts would rule in favor of the retirees if there was an attempt to exclude them altogether from welfare coverage under the new pacific trust.”
This lifetime language referred to in the Alaska plan is (or was) the same language that WAS in our longshore SPD’s (replace Alaska with PMA and its the same wording). Carder, further in his opinion, uses two law cases with which to substantiate his opinion. Zuckerman used no legal reference when he wrote his damaging legal opinion for the trustees (the trustees were McWilliams, Ramisky, and Austin).
There was one other union trustee, Olson. He was the only one that really bothered to find out the truth behind the legal importance of the SPD language removal. Olson, when he should have been a hero for what he discovered, was instead attacked by the other trustees and excluded from meetings. Both of the cases that Carder used in his opinion support the importance of the SPD lifetime language in protecting pensioner’s lifetime health benefits.
The first case, United Automobile Workers v. Yard-Man in the 6th circuit 1983 is a landmark case for retiree lifetime benefits that is widely used to this day in many cases where retiree’s have had the employer’s renege on the promise of lifetime benefits. The 2nd case referenced by Carder is Bower v. Bunker Hill 1984 in the ILWU’s district, the 9th circuit. This case also supports the SPD language and retiree lifetime benefits.
The Carder opinion to Bukowsky was sent to Brian McWilliams in 1992, when it was written. It specifically points out the importance of the SPD lifetime language, yet McWilliams signs a letter with PMA boss Miniace on Nov. 18, 1996 stating the lifetime language does not belong in the SPD. Austin in 1992 was the coast committee man from the northwest, historically the coast committee man from the north-west is a trustee to the Alaska welfare plan. So Austin should have had knowledge of Carders opinion.
Furthermore, in a letter dated December 3,1996, the three PMA stooges (Austin, McWilliams, Ramisky) agreed with Miniace (the PMA boss) that the “lifetime language” did not belong in the SPD’s, as they sent the Miniace/McWilliams agreement and the Zuckerman opinion to all Coast Longshore, Clerk and Walking Boss Locals, Pensioners Clubs and Auxiliaries.
If you managed to make it this far, you should be wondering what the hell is going on with our benefits. Did you know that the words “LIFETIME” have been removed from official plan forms, and correspondences from the plan office. That it was also removed from the PMA’s Annual Reports. It was removed from “THE ILWU STORY,” our official history book in two places, under the Pension Section and under the Modernization and Mechanization Section. This was done when McWilliams had the updated THE ILWU STORY republished in 1997. One of the greatest gains this Union ever made was removed from our official history book. . And finally, the LIFETIME language was removed from the official ERISA required and legally binding documents, the Summary Plan Descriptions.
Our old timers won the right for all pensioners to receive medical coverage for life, not contract to contract. 99.9% of all the factual evidence, not hearsay evidence, supports the truth. Don’t listen to the sellouts of our Union. The trade-offs the Union bargained with the employers in the M&M agreement secured lifetime benefits for all pensioners. One of the booklets that was widely distributed to all the locals and published in November of 1960 listed the gains made by the union in 1960 M&M agreement.
Number 7 states: “FULL PRE-PAID, NON-CONTRIBUTORY MEDICAL COVERAGE FOR THE INDIVIDUAL AND DEPENDENTS DURING EARLY AS WELL AS REGULAR RETIREMENT.” (caps added).
We on the SPD rank and file committee are not running for any office, nor do any of us have any political aspirations, we do however have a great desire to let everyone know the facts. We have collected volumes of information from 1950 to present, that undeniably supports the fact that the employers agreed long ago, that when you are pensioned, your medical benefits are provided for your lifetime. Richard Schwartz, the attorney that was retained by local’s 13, 19, 94 and 8, who was at the recent caucus in Portland, has the ability to look at this case without any political or legal conflicts. He knows also that the promise was made long ago by the employers, but since it occurred prior to the financial reporting requirements of an ERISA vested benefit (yes, health benefits can be vested under ERISA), that when ERISA became law in 1974, it never occurred to our union trustees at the time to enforce the employer to fund their obligation to the Union.
Schwartz never said it was going to cost the Union 5 million up front to pursue the case. He stated that there is over a billion dollars at stake and the PMA and Shippers would, in his opinion, fight all the way to the Supreme Court if necessary, and if that happened it could be a 5 million dollar case. Schwartz knows about the Supreme Court, he successfully won an appeal to the Supreme Court, and won a landmark benefits case decision on behalf of the Teamsters Union. (Intermodal Rail Employees Assoc. v. Atchison, Topeka and Santa Fe Railway Co.)
Schwartz believes the benefits scandal is related to the 26th pension amendment secretly entered into by Miniace and McWilliams, with Austin and Ramisky as trustees. They excluded union trustee Olson as they knew he would never agree to GIVE the employer’s a penny let alone several hundred million dollars, and reduce or eliminate the employers withdrawal liability.
Stay tuned to my next post for more of the truth if you can take it, for more evidence on the 26th amendment pension scandal.
Jack Mulcahy #8 Portland
