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SARACCO v. LOCAL UNION 786 BLDG. MATERIAL PENSION

May 7, 1990

DOMINIC SARACCO, Plaintiff,
v.
LOCAL UNION 786 BUILDING MATERIAL PENSION FUND, Defendant



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 Background

 The Fund provides benefits to members of Local 786 under a pension plan ("Plan") authored by the Joint Union and Management Trustees ("Trustees"). The Plan provides that participants are eligible to receive benefits based upon the number of credits earned during each Plan year, which runs from September 1st to August 31st. The Plan contains reciprocity provisions in Article 4 which allow participants to combine service in several Locals to achieve sufficient credits to earn a pension. Article 5 of the Plan also establishes, however, that a break in service may cancel prior credits earned if an employee has not already earned sufficient credits to vest in the Plan before the break occurs. *fn1" Section 5.04(d) provides that, if at any time prior September 1, 1976, an employee has failed to earn at least one-quarter pension credit during twelve consecutive months, a permanent break in service occurs, voiding any past credits earned. Section 5.04(c) provides for breaks in service that may occur after August 31, 1976.

 Since 1958, Saracco worked in several jurisdictions which allowed him to earn credits in the Chicago Truck Drivers Union and Teamster Locals 731 and 786 reciprocal pension funds. His work with Local 786 began some time in 1981. In 1987, Saracco sought a Reciprocal Pension Benefit from the Fund on the basis of disability. The credits he had earned with Local 786, however, were apparently insufficient, standing alone, to make him eligible for a pension. After contacting the other unions for whom Saracco had previously worked for a record of past credits earned, the Trustees were informed that Saracco had experienced breaks in service during the periods 1967-70, 1974-77 and 1979-81. Accordingly, the Trustees deemed any credits earned prior to each break in service to have been forfeited.

 That determination, however, was not necessarily fatal to Saracco's claim for benefits, because the Plan further provides that an employee may "repair" the cancellation of credits caused by a permanent break in service:

 
If a person who had a permanent break in service before September 1, 1976 earns five (5) or more Pension Credits on the basis of Work in Covered Employment his previously accumulated Pension Credits forfeited due to a Permanent Break in Service shall be reinstated.

 The Trustees therefore next considered Saracco's contention that after he came to work with Local 178 in 1981 he earned sufficient credits to repair his prior breaks in service and was therefore eligible for a pension prior to the onset of his disability in 1987. The Trustees, however, found that he had only earned 3.75 credits while under the Local 786 Plan. *fn2" Since that number was not enough to repair the breaks in service, the Trustees denied Saracco benefits under the Plan.

 Analysis

 In earlier proceedings before this Court, Saracco had initially raised a number of factual issues concerning alleged inaccuracies in his prior work history. These issues provided the basis for the Fund's motion to dismiss. Saracco has elected to withdraw these claims from our consideration, and instead has chosen to press only two remaining arguments based on undisputed facts. *fn3" Accordingly, we deny the Fund's motion to dismiss as moot.

 Saracco first asserts that the Fund has admitted in its answer that he earned 9.2 service credits prior to 1968. Assuming that fact, Saracco argues that the Fund has waived any contention that an alleged break between 1967 and 1970 negated the 9.2 service credits that he earned. He therefore claims that, by combining the 9.2 credits with the 2.0 credits he earned from Local 731 in 1970-73, he became vested in a plan prior to any subsequent breaks in service in 1974-77 or 1979-81. The underlying basis for Saracco's proposition is flawed, however, because the Fund's admission that Saracco earned 9.2 service credits had nothing whatever to do with the issue whether those credits were subsequently cancelled by the 1967-70 break in service. The Fund has consistently maintained that a break in service occurred in 1967-70, and moreover, Saracco has withdrawn any contest to the facts underlying that determination. We therefore find Saracco's argument on this point to be without merit.

 Saracco alternatively contends that the Fund should have allowed him to combine 1.9 years - earned in Local 731 subsequent to the 1974-77 break in service -- with the undisputed 3.75 credits earned in Local 786 to reach the requisite five years in covered employment necessary to repair the break. Resolution of this issue therefore centers on the appropriateness of the Trustees' interpretation and application of Section 5.04 of the Plan as not allowing an employee to combine reciprocal credits in order to repair a break in service. *fn4"

 Our standard of review of this issue is set forth in Firestone v. Bruch, 489 U.S. 101, 109 S. Ct. 948, 954-56, 103 L. Ed. 2d 80 (1989), in which the Supreme Court held that actions of Trustees who are given discretionary authority under a plan to determine eligibility for benefits or to construe the plan's terms are to be reviewed on the basis of whether such actions are ...


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