Reply – Re: TUTOR PERINI/HUDSON YARDS PRESS RELEASE
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Re: TUTOR PERINI/HUDSON YARDS PRESS RELEASE
— by Ted Ted
for @ Ted

ORIGINAL POST 2011 LM-2 REPORT

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Mar 31, 2012; 4:20pm


excerpt NLRB v. AMAX COAL 453 U.S. 322 (1981), Chief Justice Stewart at II

As explained by Senator Ball, one of the two sponsors of the provision, the "sole purpose" of 302 (c) (5) is to ensure that employee benefit trust funds "are legitimate trust funds, used actually for the specified benefits to the employees of the employers who contribute to them . . . ." 93 Cong. Rec. 4678 (1947).

Senator Ball stated that "all we seek to do by [ 302 (c) (5)] is to make sure that the employees whose labor builds this fund and are really entitled to benefits under it shall receive the benefits; that it is a trust fund, and that, if necessary, they can go into court and obtain the benefits to which they are entitled." Id., at 4753; see H. R. Conf. Rep. No. 510, 80th Cong., 1st Sess., 66-67 (1947), 1 NLRB, Legislative History of the Labor-Management Relations Act, 1947, p. 570 (1948) (Leg. Hist. LMRA). The debates on 302 (c) (5) further reveal Congress' intent to cast employee benefit plans in traditional trust form precisely because fiduciary standards long established in equity would best protect employee beneficiaries.

For example, one opponent of the bill suggested that 305 (c) (5) was unnecessary because even without that provision, the "officials who administer [the fund] thereby become trustees, subject to all of the common law and State safeguards against misuse of funds by trustees." 93 Cong. Rec. 4751 (1947) (Sen. Morse). Senator Taft. the primary author of the entire Act, answered that many existing funds were not created expressly as trusts, and that 302 (c) (5)'s requirement that each fund be an express and enforceable trust would ensure that the future operations of all such funds would be subject to supervision by a court of chancery. 93 Cong. Rec. 4753 (1947). See also id., at 4678 (Sen. Ball); id., at 3564-3565 (Rep. Case, author of House bill on which 302 (c) (5) was patterned). In sum, the duty of the management-appointed trustee of an employee benefit fund under [453 U.S. 322, 332]   302 (c) (5) is directly antithetical to that of an agent of the appointing party. 14  
 
Whatever may have remained implicit in Congress' view of the employee benefit fund trustee under the Act became explicit when Congress passed the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829. ERISA essentially codified the strict fiduciary standards that a 302 (c) (5) trustee must meet. See 29 U.S.C. 1002 (1) and (2); H. R. Conf. Rep. No. 93-1280, pp. 296, 307 (1974). Section 404 (a) (1) of ERISA requires a trustee to "discharge his duties . . . solely in the interest of the participants and beneficiaries . . . ." 29 U.S.C. 1104 (a) (1). 15 Section [453 U.S. 322, 333]   406 (b)
(2) declares that a trustee may not "act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries." 29 U.S.C. 1106 (b) (2).

Section 405 (a) imposes on each trustee an affirmative duty to prevent every other trustee of the same fund from breaching fiduciary duties, including the duty to act solely on behalf of the beneficiaries. 29 U.S.C. 1105 (a).

Moreover, the fiduciary requirements of ERISA specifically insulate the trust from the employer's interest. Except in circumstances involving excess contributions or termination of the trust, "the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan." 403 (c) (1), 29 U.S.C. 1103 (c) (1). Finally, 406 (a) (1) (E) prohibits any transaction between the trust and a "party in interest," including an employer, and 407 carefully limits the amount and types of employer-owned property and securities that the trustees may obtain for the trust. 29 U.S.C. 1106 (a) (1) (E), 1107. 16 In sum, ERISA vests the "exclusive authority and discretion to manage and control the assets of the plan" in the trustees alone, and not the employer or the union. 29 U.S.C. 1103 (a).
 
The legislative history of ERISA confirms that Congress intended in particular to prevent trustees "from engaging in actions where there would be a conflict of interest with the [453 U.S. 322, 334]   fund, such as representing any party dealing with the fund." S. Rep. No. 93-383, pp. 31, 32 (1973). In short, the fiduciary provisions of ERISA were designed to prevent a trustee "from being put into a position where he has dual loyalties, and, therefore, he cannot act exclusively for the benefit of a plan's participants and beneficiaries." H. R. Conf. Rep. No. 93-1280, supra, at 309. 17   
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(2) declares that a trustee may not "act in any transaction involving the plan on behalf of a party (or represent a party) whose interests are adverse to the interests of the plan or the interests of its participants or beneficiaries." 29 U.S.C. 1106 (b) (2).

McCarrons interests, given they are adverse to the interests of NYCDCC members, need not be considered by the Trustees. He has no right to appoint any Trustee for the NYCDCC benefit Funds; and, those so appointed need be removed - if necessary, by suit and an apppropriate order from the District Court.

Restoration of Democracy under Prong 2 of the Consent Decree requires that McCarrons last minute appointment of Trustees to oversee your funds, your monies are vetoed, given they expired with the expiration of the illegal extension of the LMRDA Trusteeship.

Repreresentatives of your choosing inures to the Trustees moreso than the Officers, as it is they who have unfettered fiduciary control to manage the benefit Trust funds for:

 
"the assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan and their beneficiaries and defraying reasonable expenses of administering the plan."

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@Ted

Stop whining like a little girl, get off your dead ass and do somethig productive for once.


Please note - Amax remains 'good law' and has never been over-turned by the U.S. Supreme Court nor challenged by the UBCJA's most notorious crimnal, one Douglas J. McCarron.

** all criminal suspects and their co-conspirators and partners in crime whether they be in the RO or USAO's office, the Federal District Court and/or sitting on the bench feignining stupidity are guilty until proven innocent - ahh; shit, I meant innocent until proven guilty in a corruption free court of law, or are they?