# Appendix — Freedman v. Morrissey > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1161%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1974 - **Citation:** 414 U.S. 1128 ## Text a =) +] PNR LigRaRY itchy Fite. COURT, U. & 3 - 6 1 l OCT 6 Ibn IN THE Supreme Court of the ited States OCTOBER TERM, 1973 No. 73-478 ABRAHAM FE, FREEDMAN, j Petitioner, 4 Vv. James M. Morrissey, JosepH Papriia, and Ratpu Ipranim, Individually and on Behalf of the Members of the NationaL Maritime Union or AMERICA, Respondents and Cross-Petitioners, JosepH Curran, SHANNON WALL, WituiaM Perry, , Martin E. Seaau and Leon KarcuMer, Respondents. CROSS-PETITIONERS’ SUPPLEMENTAL APPENDIX TO PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Artuur E. McInerney Attorney for Cross-Petitioners- 4 Respondents J 74 Trinity Place New York, New York 10006 : INDEX PAGE prenpix A—Court of Appeals Opinion with Dissent, dated February 20, 1970 ............ SAL PPENDIX B—Memorandum Decision of District Court, dated May 23, 1969 ........... SA25 PPENDIX C—Decision and Order of District Court, Denying Reargument (July 3, 1969) ..SA32 PprENDIX D—Decision and Order of District Court, Denying Injunction (July 3, 1969) ....SA33 PPENDIX K—Distriet Court Opinion, November 15, a, eT eT TR TTT EOE ET PPI SA35 PPENDIX F—29 U.S.C. § 481 (a), Labor Management Reporting and Disclosure Act of 1959, CE ager oa. ke SA40 PPENDIX G—29 U.S.C. § 501(a)(b), Labor Manage- ment Reporting and Disclosure Act of Bos POO, GRUPO oon ccc ceccseess SA41 pPpENDIX H—Olick’s Letter to Judge Hays of June 19, 1973 (Treated as Perry’s Petition eet IN ae Cito Chen rae nan SA43 -PENDIX I—Pesner’s Letter to Judge Hays of June 25, 1973, Confirming Petition ......... SA44 PENDIX J—Order Denying Plaintiff’s-Appellants’ Petition for Rehearing .............. SA45 TOR ICT ee ee AMATO NA DENA Aha CDE DAV de ee Moen th Ve alent niall pay le ii INDEX PAGE Appenpix K—Order Granting Defendant Perry’s Petition for Rehearing and Supple- TP UO a vc ccceccccccscccess SA46 Aprenpix L—Stipulation of Amounts Paid to the NMU Officers’ Pension Plan on Re ee ee aa ae Roy L, Rearpoy, Esq., Simpson, Thacher & Bart- lett, New York, N. Y., for Defendants-Appel- lants Martin E. Segal and Leon Karchmer. ee ee *John A. Danaher, Senior Circuit Judge of the District of Columbia Circuit, sitting by designation. H SA2 Appendia A. Artrnur E. McInerney, Esq., New York, N. Y. (Duer & Taylor, New York, N. Y., on the brief), for Plaintiff-Appellees. Anperson, Circuit Judge: This case arises under § 501 of the Labor-Management Reporting and Disclosure Act of 1959, 29 U. S. C. $501 (1964), and concerns the propriety of certain payments made into the Officers’ Pension Fund of the National Mari- time Union (NMU). The plaintiffs, James M. Morrissey, Joseph Padilla, and Ralph Ibrahim, have been members in good standing of the NMU since approximately 1950, The defendant Joseph Curran is the national president and the defendant Shannon Wall is the national secretary-treasurer of the NMU, both elective positions. The defendant Wil- liam Perry is the recently retired assistant to the president of the Union, a non-elective position. The defendants Abraham E, Freedman, Martin E. Segal, and Leon Karch- mer are the trustees of the NMU Officers’ Pension Plan. The structure of the NMU and the powers and duties of its officers and various internal governing bodies are set out in the Union’s constitution. It makes provision for three governing units which have nation-wide jurisdiction. The ultimate authority is vested in the National Conven- tion, which meets triennially and is composed of the elected delegates from various ships and ports. When the Na- tional Convention is not in session, the Union is governed by the National Council, which holds regular annual meet- ings and consists of the elected national officials and cer- tain other delegated representatives. When the National Council is not in session, governing authority rests in the National Office, made up of the national presidents, secre- tary-treasurer, three vice presidents, and three national SA3 Appendia A. representatives. This body is primarily responsible for the day to day, internal administration of NMU affairs. In 1951 the NMU constitution was amended to permit the National Council, subject to membership approval, to provide pension benefits for all NMU officers and em- ployees.’. On December 29, 1952, pursuant to this author- ity, the National Council entered into an Agreement and Declaration of Trust with three trustees which gave them the authority to establish a pension plan. On February 16, 1953, the trustees adopted a plan whereby pension rights acerued to the various elected officials of the Union, in- cluding the president, secretary, treasurer, vice-president, national port committee member, branch agent, field pa- trolman, and patrolman. No non-elected employee of the Union was included under its coverage. The majority of the administrative employees of the NMU were represented by this or other unions in their employment relationship with the NMU and had been granted pension rights, as per- ‘The pertinent provisions of the 1951 NMU constitution read as follows: ‘*ArticLe 15 SALARIES OF OFFICERS Section 1—Sa.aries AND Expenses: The National Coun- cil, considering the financial state of the Union, is empowered, subject to approval of the membership, to set from time to time the actual salaries and daily expenses of all Union officers and employees. The National Council shall pay all salaries, approved by the membership, of all Union officers and employees. . . . 7 7 . Sec, 8—PeNsION AND WELFARE: The National Council, subject to approval of the membership is empowered to make adequate and appropriate provisions for pensions, welfare, and similar benefits for officers and employees of the Union.’’ Between the 1951 amendment to the constitution and 1960 pension plans were adopted for the employees pursuant to collective bar- gaining agreements. RENTALS AR TIC AOA LVI Feo SA4 Appendix A. mitted by the 1961 NMU constitution, as part of their respective collective bargaining agreements." On October 28, 1961, the National Office (as opposed to the National Council) authorized an amendment to the Agreement and Declaration of Trust, the effect of which was to extend its coverage to certain executive and super- visory employees of the Union who held appointive rather than elective positions, such as the assistant to the presi- dent, organizer, executive secretary, publicity director, editor of the Pilot (the union house organ), and super- visors over maintenance, bookkeeping, records and sup- plies.* Prior to the adoption of the amended Declaration of Trust, however, the NMU constitution had been subjected * The last sentence of Article 8(a) of the 1960 constitution which concerns technical, clerical and administrative personnel at- tached to or under the National Office, provides : ‘*Whenever possible, such employees shall be members of the NMU or of appropriate AFL-CIO affiliates, ”’ With nothing shown to the contrary, it may be assumed that all of the few non-elected employees, arbitrarily brought under the Officers’ Pension Plan by the National Office, already had pension coverage under collective bargaining agreements applicable to them. It must be emphasized that the present case had nothing whatever to do with such pension coverage, nor do the plaintiff in any way challenge or seeks to disturb those pension rights of the adminis- trative employees. Rather, in the present action, they are question- ing only the awards to the special few non-elected employees who have been granted the lucrative *“pension rights’’ under the Officers’ Pension Plan. For example, one of these special employees, the defendant Perry, who incidentally already had coverage under the NMU Deep Sea Pension Plan, resigned as assistant to the president, January 16, 1969, and, as a specially created beneficiary received over $100,000 under the Officers’ Pension and Plan alone. * Three years later, in 1964, the Officers’ Pension Plan was again extended to include additional administrative personnel not covered by collective bargaining agreements, © head RD Ae AAP hte SA5 Appendiaz A. to an extensive revision whereby, along with other changes, the authority vested in the National Council to fix the sala- ries of certain employees was shifted to the National Office and the requirement for membership approval thereof was deleted.* This revision became effective on December 2, 1960. The plaintiffs contend that the 1961 amendments to the Declaration of Trust, by the National Office, permitting benefits to be paid to non-elected employees under the Officers’ Pension Plan were not authorized by and were in contravention of the NMU constitution, as amended in *The amendment applicable to this case reads, in pertinent part, as follows: ‘* ARTICLE 8 NATIONAL OFFICE ” * * Sec. 11—EMPLOYEES OF THE UNION: (a) The National Office shall be responsible for and shall fix the salaries of all technical, clerical, and administrative personnel as may be required for the effective administrative of the Union’s affairs. Wherever possible, such employees shall be members of the NMU or of appropriate AFL-CIO affiliates. (b) Collective bargaining agreements affecting employees of the NMU shall be negotiated by the National Office or such officer or officers as it may designate; provided that no such agreements shall be made without specific approval by the National Office.’’ ‘‘ARTICLE.14 COMPENSATION OF OFFICERS Section 1—Salaries: (a) The National Council shall fix the salaries for all officers of the Union, subject to approval as provided by this Constitution. Sec. 7—Pensions: All officers shall be eligible for benefits under the NMU Officers’ Pension Plan, subject to such rules and regulations as the Trustees of that Plan may establish. Sec. 8—Welfare: All officers shall be eligible for benefits under the Officers’ Welfare Plan. The National Council, sub- ject to membership approval, is empowered to improve the benefits under said Plan.’’ eS ee Se en ee ee SA6 Appendix A. 1960. After Union officials refused to take any action, as requested, to obtain the return of funds paid into the Trust fund for the benefit of non-elected employees under the revised Plan, the plaintiffs filed a complaint in the district court seeking an accounting, a money judgment for any; damages suffered by the Union or the Trust fund, and an injunction against further payments to non-elected em- ployees. On February 4, 1969, the district court (Bryan, Judge) granted leave, pursuant to 29 U. S. C. §$501(b), to com- mence this action. Defendants Curran, Wall and Perry moved to dismiss the complaint under Rule 12(b)(5), F, R. Civ. P., or in the alternative for summary judgment under Rule 56. The plaintiffs filed a cross-motion for summary judgment against all defendants. Oral argument was heard on both motions on March 26 (Bonsal, Judge), and on May 23 the defendants’ motions were denied and plaintiffs’ cross-motion was granied. 302 F. Supp. 32 (S. D. N. Y. 1969). The court held that the defendants should account for and repay pension funds accrued and paid to non-elected Union employees, that the defendant trustees should be enjoined from paying out of the Officers’ Pension Plan fund further benefits to non-officers and the plaintiffs should recover costs and attorneys’ fees, Immediately following the district court decision, the National Council of the Union convened and proposed amendments to the constitution which gave the National Office of the NMU the authority, which the trial court had found it did not have under the 1960 amended constitution, to designate certain non-elected employees to be eligible for benefits under the Officers’ Pension Plan as well as the authority “to validate retroactively all pensions heretofore paid under the plan.” The approval of these amendments AAPA IDE AN VDAT RAE GR AT AYA ARS aug SLAIN RENIN) LL A Pee PRA HOMOIV IE SE MOR HARD AMEEEA ELE PANE BAN IRIW POW 2 TANG GEO OANA NALINI SA7 Appendia A. was voted on June 24, 1969. The plaintiffs promptly moved to have the June 24th amendments declared invalid as exculpatory, and therefore void, under $501(a)* and to enjoin any implementation of them. The relief sought was denied without prejudice on July 3, 1969. The defendants moved that the entire action be dismissed as moot on the ground that the new amendments removed any question of the power of the defendants to act as they did. Meanwhile, on June 2, 1969, defendants Curran, Wall and Perry filed a motion for reargument of the May 23 decision. On June 6 the plaintiffs filed a motion to enjoin the defendants from being represented by counsel retained by the Union, to require defendants to pay their own coun- sel from funds not belonging to the Union, and to enjoin the implementation of the proposed amendments to the NMU constitution on the ground that they were exculpatory and therefore void under 29 U. S. C. §501(a). On June 11 a motion for reargument was filed on behalf of defendants Segal and Karchmer. In separate orders entered on July 3, 1969, these motions were denied, except for the motion relating to representation of defendants by Union counsel, which was not ruled upon. The defendants have appealed from the district court decision granting summary judgment to the plaintiffs, denying their own similar motion and their motions for reargument. The plaintiffs have filed an interlocutory ap- peal from the trial court’s denial of their motion to declare *The pertinent language of the statute provides: ss . . A general exculpatory provision in the constitution and ‘bylaws of such a labor organization or a general excul- patory resolution of a governing body purporting to relieve any such person of liability for breach of the duties declared by this section shall be void as against public policy.’’ SAS Appendix A. invalid and enjoin the use of the June 24 amendments to the NMU constitution. The major dispute on these appeals concerns the proper interpretation of the provisions for establishing employee pension funds under the 1951 NMU constitution, as amended in 1960. Defendants argue that the 1960 amendments were de- signed to shift the responsibility for the establishment of employee salaries from the National Council to the Na- tional Office and did not limit in any way the power of the National Office to establish employee pension funds. They assert that the terms “salaries,” as used in Article 8, $11 must be construed to include pensions, from which they claim it follows that the National Office was acting within its authority when it amended the Officer’s Pension Plan in 1961. In support of this position they rely upon such cases as Brumley v. Barter, 225 N. C. 691, 36 S. E. 2d 281 (1945), and Giannettino v. McGoldrick, 295 N. Y. 208, 66 N. E. 2d 57 (1946), which hold that pensions are compensa- tion for past services as opposed to gratuities, and in that sense, are included within the term “salary.” But as the district court pointed out in its opinion, the framers of the NMU constitution, when drafting the 1960 revision, clearly had in mind a distinction between salaries and pensions, as evidenced by the use of the term “compensation” in Article 14 to include both types of remuneration. The NMU constitution, as amended in 1960, was clear and explicit with regard to the persons covered by the pension pro- visions, and in the light of the history, context and wording of those provisions, the district court’s rejection of the defendant’s claim is correct. There was no genuine issue of material fact concerning the charge of a breach of duty on the part of the defendants, and summary judgment in favor of the plaintiffs should be affirmed. LP Da APE CI! 2 ECORI DES SA9 Appendix A. In support of their claim that the 1969 amendments* to the NMU constitution, made immediately following the dis- trict court decision, are exculpatory and that their applica- tion should be enjoined, the plaintiffs rely on Highway Truck Drivers and Helpers Local 107 v. Cohen, 182 F.Supp. 608 (E. D. Pa.), aff'd. 284 F. 2d 162 (3 Cir. 1960), cert. de- nied, 365 U. S. 833 (1961), and Highway Truck Drivers and Helpers Local 107 v. Cohen, 215 F. Supp. 938 (E.D. Pa. 1963), affd, 334 F. 2d 378 (3 Cir.), cert. denied, 379 U.S. 921 (1964). In the first of these two cases the district court found that it was improper for the local union to pay the attorney fees of union officers who were under criminal in- dictment. These fees were to be paid pursuant to a resolu- tion of the local which permitted such payment, and that resolution was declared invalid because it authorized “ac- tion beyond the powers of the union as derived from its constitution and was inconsistent with the aims and pur- poses of the Labor-Management Reporting and Disclosure Act.” 284 F. 2d at 164. The international union then amended its constitution to permit such authorizations. Thereafter in the second Cohen case the union officers claimed that the payments were valid as the amendment purported to be retroactive. In rejecting this claim the Third Circuit said: 5 The following is the full text of those amendments : ‘Amend Article 8, Section 11 to add the following paragraph : The National Office shall have the authority to provide pen- sions for all past and present employees of the Union and to protect the pension rights of all past and present employees of the Union. Amend Article 14, Section 7, as follows: Sec. 7—Pensions: All officers and such employees as the National Office may designate, shall be eligible for benefits under the NMU Officers’ Pension Plan, subject to such rules and regulations as the Trustees of that Plan may establish. The National Office shall have the authority to validate retro- actively all pensions heretofore paid under the Plan.’”’ t 7 é 5. § i F ¥, fs & : ¥ & z Ef a F: 3 é t E ¥ f EIR DEERE eens Om Ae cc wy Sino SRY Tob eS. SA10 Appendix A. “‘That abortive attempt to validate the illegal 1959 resolution, could not of course in 1961 legitimatize the 1959 payments which have been held to have been wrongful. And the action of the International was just as inconsistent with Section 501 of the Labor Manage- ment Act as was the Local’s ill conceived resolution.’’ 334 F. 2d at 381. The defendants in the present case, however, assert that the cases cited actually support the defense. It is their contention that the trial court held in the 1960 Cohen case that a resolution authorizing an expenditure of union funds was not an exculpatory provision in violation of 4 501(a) and, in the 1963 Cohen case, that a constitutional amend- ment authorizing expenditures already incurred was not exculpatory unless the expenditures themselves were in violation of § 501 of the Act. Turning to the present case they argue that the court below did not find that the pay- ments into the Officers’ Pension Plan for the benefit of employees were per se violative of §501(a), and therefore any subsequent constitutional provision purporting to validate the past payments cannot be exculpatory within the meaning of §501(a). In making this assertion, the defendants conveniently overlook the fact that the trial court did find that they had breached their duties because the expenditures in question were not authorized by the NMU constitution and that they were in violation of § 501 of the Act. In the Cohen cases the trial court was affirmed because the local union authorized actions beyond its powers as derived from the constitution and because its effort to pay attorneys’ fees for officers who had been derelict in their duties was ‘inconsistent with the aims and purposes of the Labor Management Reporting and Dis- closure Act.’? We agree with the position taken by the Third Cireuit. Otherwise the provisions of § 501 would be > wiles wane gad, ninet = | OOM Ee AL POLL ELE LYE GA RITE ee a la ts ee Re ek SA11 Appendia A. completely emasculated if, every time a court, at the behest of complaining members of a union, found that the officers had breached their duties, the officers could find sanctuary by putting through a constitutional amendment or by-law retroactively to legitimatize their former derelictions of duty. The defendants also argue that the district court ‘‘has not imposed any personal liability upon the defendants from which they needed to be ‘exculpated,’ ’’ but we do not agree with this argument. The district court ordered the defendants to account for all moneys paid into the Officers’ Pension Plan and return to the NMU all moneys received by the trustees for the benefit of non-officers with interest. It follows that if they are unable to recoup that money, they may be held personally liable. The trial court’s decision, however, on the plaintiffs’ motion for an injunction, that the purpose of the 1969 amendments to the NMU constitution was to include non- officer employees in the NMU officers’ pension plan and that the amendments were, therefore, not exculpatory provisions prohibited by § 501, is at odds with its holding that there was an obvious breach of duty on the part of the defend- ants in causing union funds to be paid out to persons who were not entitled to them. His conclusions might have been correct if the provisions were prospective only in their application but the amendment to Article 14, §7 provides in part: ‘‘the National Office shall have the authority to validate retroactively all pensions heretofore paid under the plan.’”? This is clearly exculpatory in intent and lan- guage. The NMU exercised its authority under the 1969 amendments to attempt to validate retroactively all the pensions previously paid. The determination that the 1969 amendments were not exculpatory is reversed and will be reconsidered on remand. The defendants raise a number of additional minor issues, several of which will be commented upon. They ee ee SA12 Appendix A. have throughout pressed the defense of laches. But the matter of improper payments of union funds to persons not entitled to them is a continuing offense and cannot bar an injunction to prevent continued payments or an account- ing for all of the unlawful expenditures. The defendants Segal and Karchmer claim that the ultimate order issued by Judge Bonsal exceeded the court’s jurisdiction because it is their contention that the court’s jurisdiction is fixed by the order issued by Judge Bryan on plaintiffs’ application for leave to bring suit on February 4, 1969. This is an incorrect interpretation of §501(b). The purpose of requiring permission to bring an action is a safeguard to protect the union officers from vexatious suits and once given is not to be treated as a stricture on jurisdiction. Horner vy. Ferron, 362 F. 2d 224, 228 (9 Cir.), cert. den. 385 U. S. 958 (1966). An issue was also raised that Judge Bonsal had no power to grant summary judgment on plaintiffs’ motion because of in- adequacy of notice to some of the defendants. The trial court, however, had power on its own motion to enter summary judgment against the party who was the original mover. 6 Moore, Federal Practice, 56.12 at 2241 (2d ed. 1966). While some of the defendants had only a brief opportunity to prepare for the argument on the plaintiffs’ motion, there is nothing whatever to indicate that any party was at all prejudiced. Stein v. Oshinsky, 348 F. 2d 999, 1000-01 (2 Cir.), cert. den. 382 U. S. 957 ( 1965). Defendants also argue that the trustees of the Officers’ Pension Plan do not come within the definition of those having a fiduciary responsibility as set forth in 29 U. S. C. § 402(q). ‘his court has specifically rejected this claim in Tucker v. Shaw, 378 F. 2d 304, 308 (2 Cir. 1967). The trial court was correct in finding that all of the defendants were in a position of trust and responsibility in relation to the monies charged to have been unlawfully expended and all a A ty DEA Mad tant ANE AH YS LA IEE lm Wire 3%, re a SA13 Appendiaz A. had a duty to see that it was restored to the Union treasury. The remaining points raised by the defendants do not merit discussion. We affirm denial of the defendants’ motion for sum- mary judgment and the entry of summary judgment in favor of the plaintiffs. As the June 24, 1969, amendments to the NMU constitution are clearly exculpatory as pro- hibited by §501(a), we reverse the denial of plaintiffs’ motion to have these amendments declared void, and re- mand to the district court for appropriate action declaring the amendments to be without effect and enjoining defend- ants from acting in reliance upon them. As the district court apparently did not pass on so much of plaintiffs’ mo- tion as requested that defendants be enjoined from retaining counsel paid or to be paid with Union funds, this question should also be determined on remand. The controlling cases on this point are Tucker v. Shaw, supra, and Holde- man v. Sheldon, 311 F. 2d 2 (2 Cir. 1962), in which we held that all that is necessary for enjoining of the defendants in a § 501 action is that the plaintiff make ‘‘a reasonable show- ing that he is likely to succeed.’’ We also note that the district court maintains continuing jurisdiction to insure that the accounting and return of funds to the Union treasury proceeds as ordered, and, of course, it retains the power to issue the necessary orders to assure full com- pliance. Affirmed in part, reversed in part, and remanded for further proceedings in compliance with this opinion. Dananer, Senior Circuit Judge (dissenting) : Although according great respect for the views of my colleagues and for those of the able District Judge, Honor- at Silas a a aa . : , 4 F. % fe § * ‘a : 5 ans a Sates 5 we PPL LEGER OS PROS SAl14 Appendix A. able Dudley B. Bonsal, I nonetheless fear that error has occurred. The National Maritime Union of America (hereinafter NMU) was founded in 1937. Some fourteen years later, the still-young Union adopted a Constitution which, so far as is here pertinent, provided that “considering the finan- cial state of the Union,” the Union’s National Council’ was empowered to make adequate and appropriate provisions for pensions, welfare and similar benefits for officers and employees of the Union. That power was never rescinded, I suggest, but was later transferred to the National Office. Agreeably to such authorization, effective as of Febru- ary, 1953, the NMU Officers’ Pension Plan was adopted, then covering all elected officers of NMU. There has been no challenge here to the validity of that Plan. NMU in the management of its properties, in the ad- ministration of its far-flung business and in furtherance of its purposes, utilized the services of a staff of lawyers, _ economists, pension administrators, staff experts in Wash- inton, doctors, and supervisory staffs of Union-owned real estate.’ For their protection as well as to further its own interest in their retention in its service, NMU negotiated with various unions of which its employees were members for the establishment of pension and welfare plans. As an employer, NMU was bound to bargain respecting hours, wages and conditions of employment. Although clearly authorized to do so, NMU had not until the events here * The National Council was authorized to act between National Conventions. Another entity, known as the National Office, was accorded the same powers as those reposed in the National Council, to be exercised in the more frequent meetings of the National Office. * Some inkling of the nation-wide scope of the operations of NMU may be gleaned from the carefully-detailed findings of Dis- trict Judge Motley outlined in Wirtz v. National Maritime Union of America, 284 F. Supp. 47 (S. D. N. Y. 1968); affirmed by this Court 399 F. 2d 544 (1968). SEEN OM eR ON WI a ver ® Revi. SA15 Appendia A. at issue, set up a separate plan for a few of its supervisory personnel, not elected officers and not represented by some union. Some sixteen years after the original Plan had become effective, the plaintiffs here alleged that without authoriza- tion a lump-sum benefit’ had been accorded to the defendant Perry following his resignation as Executive Assistant to the National President. Purporting to base the action upon 95 U.S. C. § 501, the plaintiffs had sought an accounting, a money judgment against the defendants, and an injunction to restrain the Trustees from paying benefits to Perry or any other non-elected employees of NMU. The Union was not made a party. Under date of May 23, 1969, the District Judge filed an Opinion holding, compendiously, that there was no authority‘ for covering non-employees into the Plan, and so he granted summary judgment for the plaintiffs. He ordered the defendants to account; enjoined the Trustees from paying benefits under the Plan to non-officers; and further directed the Trustees to return to NMU, with inter- est, all moneys received by the Trustees for the benefit of non-officers. Meanwhile, Congress adopted the “Welfare and Pen- sion Plans Disclosure Act,” effective as of January 1, 1959,° which defined an “employee pension benefit plan” to mean * The original Plan had specifically provided that the Trustees in their discretion might make a lump-sum payment in lieu of bene- fits otherwise provided. Indeed, the authorization was amended and extended in 1958. ‘There was no evidence that the officer defendants or the Trustees personally benefited in any way or otherwise acted un- lawfully, or that they had exercised bad faith. Cf. Bakery and Confectionery Workers Internat’l U. v. Ratner, 335 F. 2d 691 (1964). 599 U. S. C. A. § 301 et seq. PL 85-836, as amended by PL 87-420. 76 Stat. 35, which vastly increased the authority of the Secretary of Labor to supervise and to administer the disclosure requirements of the earlier Act. ——~ , eT 4 NA ag a Oe there “ ; ; ; | SA16 Appendia A. ‘fany plan, fund or program which is communicated or its benefits described in writing to the employees, and which was heretofore or is hereafter established by an employer or by an employee organization, or by both, for the purpose of oe for its participants . retirement benefits . And the Act further defined the term ‘‘participant’’ to mean ‘*any employee or former employee of an employer or any member of an employee organization who is or may become eligible to receive a benefit of any type from an employee welfare or pension benefit plan... .’’ NMU became bound to submit annually to the Secretary of Labor a report describing the Plan, an annual financial statement, and further information in such form and de- tail as the Secretary might prescribe. NMU complied with those requirements.’ So it was in part, and with the Labor Management Re- porting and Disclosure Act of 1959 (LMRDA)’ by this time on the statute books, the 1951 Constitution was revised at an NMU Convention held in October, 1960, with ratification by the membership after a referendum vote concluded in December of 1960. I deem it unthinkable that the NMU membership sup- posed for a moment that the amended Constitution was intended to wipe out whatever rights to coverage had been acquired since 1952. There was no repealer clause in the 1960 revision. To me, it is inconceivable that the eligibility established in 1952, followed by good faith reliance under *29 U. S. C. A. 32 §§ 304-307. NMU furthermore was bound to report in detail to the Bureau of Internal Revenue and annually did so. 729 U. S. C. A. $401 et seq. ee nS a ee ke PO dharma — 2 . S aoe ene en SA17 Appendia A. the express terms of the earlier Constitution, was to be deemed obliterated. I reject the suggestion that the Con- stitution, as revised, had narrowed the authority of this Union to provide pensions for any of its 47,000 members, whether they be elected officers or employees or whatever their status. On the contrary the 1960 Constitution even broadened benefits to be accorded to members whose rights had pre- viously accrued, as for example where Article 15, Section 8(f), specified that members ‘‘receiving a monthly pension under the NMU Welfare and Pension Plan or the NMU Officers’ Pension Plan shall not be required to pay dues and shall be regarded as honorary members... .’’ Against such background, lacking representation by any employee union and not possessing the status of elected officers, a few non-elected employees were brought into the Plan. Perry as Assistant to the President* was included, certain others being identified as Organizer, Maintenance Supervisor, Bookkeeper Supervisor, Records and Supply Supervisors, Executive Secretary, Publicity Director and the Editor of the NMU official News Organ, The Pilot. In sum, my reading of the record and my construction of the NMU Constitution convince me, first, that it had always been the plain intendment of this Union that pen- sions for both officers and employees be authorized; and next, that the power to establish any plans had heen created in 1951, with continuing authorization to amend whatever ‘The Constitution in Article 13, Section 1, provided as to the National President that: (f) He may, in his discretion, and at such salary as the National Office may determine, appoint a member, or members, of the Union to assist him in the exercise of his administrative func- tions; provided that such assistant or assistant shall at no time act in an executive capacity. ee ta ee SA18 Appendix A. plan might thereupon be established. See, for example, Article 15, Section 8 of the Constitution, ratified in 1951, which read: The National Council, subject to approval of the mem- bership, is empowered to make adequate and appro- priate provisions for pensions, welfare, and similar benefits for officers and employees of the Union. Nothing to be discerned from the revised Constitution, ratified December 2, 1960, detracted one whit from that authority. Rather, I suggest, the later revision must be read with the former. The only difference in giving effect to the continuing intent of the Union membership was that after the 1960 revision, the authority to act was transferred from the National Council to the National Office. I conclude that even without more than my analysis suggests, the Dis- trict Judge erred in concluding that at the time the chal- lenged action was taken, there had been a lack of authority to provide pensions for all past and present employees of the Union, II. But there was more. After the release of Judge Bon- sal’s May 23, 1969 Opinion, the Union promptly took steps to reiterate the NMU intention. If the judge could be heard to say the NMU had failed to make clear its intention, two amendments to the Constitution were immediately pro- posed. The amendments by referendum were forthwith approved by the membership by an overwhelming vote. Accordingly, the revised 1960 Constitution was further amended by the addition to Article 8, Section 11, of the following: (d)—The National Office shall have the authority to provide pensions for all past and present employees ne Bane FOF AN A eR I GE oT Me Die oe LARS PRA DIME NE NEE th Saas SA19 Appendia A. of the Union and to protect the pension rights of all past and present employees of the Union. The membership further amended Article 14, Section 7, to read as follows: Pensions: All officers and such employees as the National Office may designate shall be eligible for benefits under the NMU Officers’ Pension Plan, subject to such rules and regulations as the Trustees of that Plan may establish. The National Office shall have the authority to validate retroactively all pensions hereto- fore paid under the Plan. These plaintiffs then attacked the amendments as “ex- culpatory” within the meaning of 29 U.S.C. § 501, and they sought an injunction. The District Judge flatly—and correctly—rejected that contention and ruled that the amendments “were not exculpatory provisions prohibited by 29 U.S. C. $501. Their purpose is obviously to include non-officer employees in the NMU Officers’ Plan.” (Emphasis added.) ® DECISION AND ORDER ON MOTION FOR AN INJUNCTION The amendments to the NMU Constitution are not exculpatory provisions prohibited by 29 U. 8S. C. 501. Their purpose is obviously to include non-officer employees in the NMU Officers’ Pension Plan. According to the Certification of the Honest Ballot Association, dated June 24, 1969, the following amendments were adopted by a vote of 10,043 to 1,685: ‘* Add the following paragraph to Article 8, Section 11: (d)—The National Office shall have the authority to pro- vide pensions for all past and present employees of the Union and to protect the pension rights of all past and present em- ployees of the Union. ‘Amend Article 14, Section 7 to read as follows: Pensions: All officers and such employees as the National Office may designate shall be eligible for benefits under the NMU Officers’ Pension Plan, subject to such rules and regu- lations as the Trustees of that Plan may establish. The Ph eas Te $A20 Appendiz A. Granting that the Constitution had validly been amended, the District Judge’s July 3, 1969 Memorandum observed, “It does not appear that the National Office has exercised this authority.” I read him to be saying, “I do not perceive that the necessary authority existed to include non-officers at the time they were covered into the Plan. But now NMU has conferred that authority. Even so as of this moment, the National Office has not so far exercised its power.” And accordingly he concluded only that since the inclusion of non-officers “was beyond the power of the defendants, plaintiffs are entitled to appropriate relief.” 9 (con’d) National Office shall have the authority to validate retroactively all pensions heretofore paid under the Plan.’’ While it is stated that 12,040 members obtained a ballot, it is not stated how many members of NMU were eligible to vote. The amendment to Article 14, Section 7 provides that ‘‘the National Office shall have the authority to validate retroactively all pensions heretofore paid under the Plan.’’ However, it does not appear that the National Office has exercised this authority. Plaintiffs’ motion is denied, without prejudice to the plaintiffs seeking further relief by appropriate application if the defendants should violate the order of the court. It is so ordered. Dated: New York, N. Y. July 13, 1969. Dupb.ey B. BonsaL U.S8.D.d. *° DECISION AND ORDER ON MOoTION For REARGUMENT Defendants’ motion for reargument is denied. The interpreta- tion of the meaning of ‘‘salaries’’ sought by defendants would not change the holding that only officers were eligible for benefits under the NMU Officers’ Pension Plan, for the reasons stated in the Memo- randum filed May 23, 1969. Therefore the inclusion of non-officers in the Plan was not authorized by the NMU Constitution as revised in 1960. Since such inclusion was beyond the power of the defend- ants, plaintiffs are entitled to appropriate relief, Consideration has been given to the affidavit of the defendant Martin Segal dated June 11, 1969, which was filed in support of the defendants’ motion for reargument. Mr. Segal is one of the trustees of the NMU Officers’ Pension Plan, who appeared in the action and SA21 Appendia A. Thereupon after such prompting, as the record shows, the National Office acted to implement the authority so re- cently reaffirmed. It adopted a resolution based upon the desire of the National Office “to confirm the pension rights of all employees of the Union, both retroactively and pro- spectively.” The text appears in the margin.” Right then and there, having been advised in the prem- ises, the assumed omission having been cured by NMU, the (10 cont’) filed his answer on May 1, 1969. The court does not question Mr. Segal’s good faith as trustee. However, the plaintiffs are entitled to obtain the return to NMU of the monies paid to the Fund on behalf of non-officers since their inclusion was not authorized. It is so ordered. Dated: New York, N. Y. July 3, 1969. Dub ey B. BonsaL U.8.D.d. 11 ‘*Now, THEREFORE be it Resolved: (1) All pensions, heretofore paid by the NMU Officers’ Pension Plan are hereby validated and approved. (2) All employees of the Union except (a) those already covered by collective bargaining agreements where the NMU is the employer, which collective bargaining agreements provide for the covered employees . . . shall be eligible for benefits under the NMU Officers’ Pension Plan. (3) Payments on the NMU Officers’ Pension Plan to pro- vide for the foregoing benefits are hereby authorized and all past payments by the Union to the NMU Officers’ Pension Plan are hereby ratified and approved.’’ Pursuant thereto, the Plan (identified as that which was ‘‘effec- tive as of February 16, 1953,’’ as amended) was again amended in Article I, Section 8 to define, more specifically, the term ‘‘Partici- pant’’ to mean ‘‘an Officer, Representative, Supervisor or Professional, and all other employees of the Union except (a) any employee whose compensation, hours of work or conditions of employment are determined by collective bargaining with a recognized bargain- ing agent... .”’ And Section 9 defines ‘‘ NMU Constitution’’ to mean ‘*the Constitution of the NMU in force and effect at the time of the adoption of this Pension Plan [1953] together with any amendments thereto.’’ SA22 Appendix A. District Judge should have entered summary judgment in behalf of the defendants, thus rendering moot whatever claims had previously been urged upon the Court by these plaintiffs. To take any other view, as it seems to me, is not only to deny NMU its right to manage its own affairs."* but in view of the rectification of whatever oversight the Judge thought he had detected, the membership clearly restated its approval of the authority of the National Office and of the Trustees to provide pensions for all officers and all employees.’* ** The Supreme Court has recognized that unions in the view of Congress are to be accorded great latitude in resolving their own internal controversies. Wirtz v. Bottle Blowers Assn., 389 U. §. 463, 471, text, n. 10 (1968) ; ef. Wirtz v. Hotel Employees, 391 U. S. 492, 497 (1968). ** Applying to the documents before us principles analogous to those governing statutory construction, we are bound to read them together. Certainly repeals by implication are not favored, and nowhere can it be seen that the 1960 Constitution repealed the earlier version. Where there are two acts upon the same subject, it is fundamental that the rule is to give effect to both if possible. United States v. Borden, 308 U. S. 188, 198 (1939). The language before us must be interpreted in the light of reason and understanding to reach the results intended by the NMU’s Conventions and the respective Constitutions which reflect the membership approval. Rathbun v. United States, 355 U. S. 107, 109 (1957) ; ef. United States v. Public Utilities Comm’n, 345 U. S. 295, 315 (1953). If caution ‘‘against a literal reading of congressional legisla- tion’’ be required, Wirtz v. Bottle Blowers Assn., supra, at 468, how much more so should that caution be applied to the language, often enough inartful, as employed by the Union’s draftsmen. Recognition of the general objectives sought to be achieved by NMU should provide the key to a reconciliation of all alleged doubts. This was no case where officers of the Union were misappro- priating Union funds for themselves. Cf. Tucker v. Shaw, 378 F. 2d 304, 306 (2 Cir. 1967); indeed, the Judge found no lack of good faith on the part of the trustees, ef. Coleman v. Brotherhood of Railway & Steamship Clerks, Etc., 340 F. 2a 206, 209 (2 Cir. 1965). Here, the Union officers, the National Office, the NMU membership and the trustees had undertaken, to do precisely what the Union sought to accomplish. a Pt mnaNesd OS ats? WEE Et eee ie pao YY SA23 Appendix A. The purpose and the intent of the Union emerged con- clusively. I respectfully submit, and the conferred author- ity was exercised. III. Having in mind that the District Judge concluded that summary judgment was in order, perhaps it will not be amiss to turn back to his May 23, 1969 Memorandum Deci- sion. There he concluded that the “plaintiffs’ action for breach of defendants’ fiduciary duties is not barred by laches.” He continued that “in this case defendants have made no showing that they have been prejudiced by the delay.” Judge Motley found in Wirtz v. National Maritime Union of America, 284 F. Supp. 47, 53 (1968), that the defendant Wall in the 1966 contest for National Secretary-Treasurer had defeated the plaintiff Morrissey by a vote on the order of two to one. The plaintiff Padilla received the least number of votes and by about the same ratio as he sought election as one of the Vice-Presidents. These plaintiffs then had filed protests id., 57, in accordance with the provision of the Constitution, and after their protests had been heard and rejected they sought the intervention of the Secretary of Labor. They did not do so here, and it may be noticed that the Secretary is not complaining concern- ing the present issue,“ although he had been kept informed through the annual filing of the reports required by the Disclosure Acts. discussing, we find these plaintiffs seeking an accounting Now, some eight years after the actions we have been and a return of moneys contributed to the Pension Plan. If 44In passing it should be noted that the Internal Revenue Service had required NMU to amend the Plan so as to cover broadly all employees, officers, as well as non-officers. Thereupon, the Plan, so amended, was approved by the Bureau of Internal Revenue. SA24 Appendix A. as the plaintiffs contend on brief these defendants under the judgment will be bound individually to return to NMU all moneys theretofore paid or accrued for the benefit of the intended participants, it is difficult to see why the de- fendants shall not ‘‘have been prejudiced by the delay.”’ Surely if this action had earlier been commenced and con- cluded with like result, it would seem inevitable that lia- bility so entailed would have been limited. Moreover, cor- rective action, if really required, could at once have been taken to the end that the Union’s concern for eligible par- ticipants be satisfied. It seems to me that a hearing, at least on this aspect of the case, was clearly in order, I fail to see how the Judge could have faulted the defendants as having “made no showing that they have been prejudiced by the delay.” To what extent that conclusion of the District Judge entered into his determination that summary judgment was in order, we do not know. But we do know that despite the absence. of extrinsic evidence both on this point and with respect to what was in fact the intention of the Union, summary judgment for the plaintiffs was directed. If summary judgment were not to be entered in favor of the defendants for the reasons previously advanced, at the very least according to my appraisal of the record here there should have been'a hearing. There was error on account of that failure if for no other reason. IV. It would unduly protract this exposition of my views were I to go into further detail. Sounding again the note on which I opened, I respectfully submit my observations with the greatest regard for those of my colleagues and Judge Bonsal. ** Cf. United States v. Diebold, Inc., 369 U. S. 654, 655 (1962). ee eee ee SA25 APPENDIX B Memorandum Decision of District Court, dated May 23, 1969. MEMORANDUM Bonsat, D. J. Plaintiffs are three members of the National Maritime Union of America (NMU); defendants Curran and Wall are elected officers of the NMU; defendant Perry was an employee of the NMU and Assistant to the President; and defendants Segal, Freedman, and Karchmer are trus- tees of the NMU Officers’ Pension Plan (the Pension Plan). Plaintiffs instituted this action in February 1969. The complaint alleges that defendants allowed the Pension Plan to be amended in 1961, so as to include as partici- pants designated employees of the NMU, who were not elected officers of the NMU (non-officers), in violation of the NMU Constitution then in effect; and that the amend- ment was designed to siphon NMU funds to the non-officers who were not authorized to receive them. Plaintiffs seek an accounting and money damages from the defendants responsible; an injunction enjoining the Trustees from pay- ing any benefits to non-officers ; and costs, disbursements, and attorneys’ fees, under 29 U.S.C. $ 501(b). Defendants Curran, Wall, and Perry (moving defend- ants) move for an order, pursuant to Rule 12, F. R. Civ. P., dismissing the action; or, in the alternative, for an order, pursuant to Rule 56, F. R. Civ. P., for summary judgment on their behalf. Plaintiffs cross-move for sum- mary judgment as against all defendants. In 1951, following the amendment of the NMU Con- stitution, Article 15, entitled “Salaries of Officers,’’ pro- SA26 Memorandum Decision of District Court, dated May 23, 1969. vided, in part, as follows: “Section 1—Salaries and Expenses: The National Council . . . is empowered, subject to approval of the membership, to set from time to time the actual salaries and daily expenses of all Union officers and employees. Sec. 8—Pension and Welfare: The National Council, subject to approval of the membership is empowered to make adequate and appropriate provisions for pen- sions, welfare, and similar benefits for officers and em- ployees of the Union.” ( Emphasis added.) On December 29, 1952, an Agreement and Declaration of Trust (the Trust Agreement) was entered into between the NMU and three Trustees, including defendants Segal and Karchmer, granting to the Trustees authority to estab- lish the Pension Plan. On February 16, 1953, the Trustees promulgated the Pension Plan, which provided that “officers” who had at- tained a certain age and had credit for a certain number of years of ‘‘covered employment”’ were eligible to receive pension benefits.* * Relevant provisions of the Pension Plan were as follows: ** ARTICLE II, DEFINITIONS Section 5. ‘Officers’ shall mean a person holding any one of of the following offices in accordance with the provisions of the NMU constitution: (a) National President (b) National Secretary (c) National Treasurer (d) Vice President (e) National Port Committee Member (f) Branch Agent (g) Field Patrolman (h) Patrolman - e Section 7. ‘Covered Employment’ shall mean employment as an officer of the NMU.”’ SA27 Memorandum Decision of District Court, dated May 23, 1969. In 1960, the NMU Constitution was again substantially revised and a new Article 14, entitled ‘‘Compensation of Officers,’’ was substituted for Article 15 of the 1951 Con- stitution. Article 14 provided, in relevant part: ‘‘Section 1—Salaries: (a) The National Council shall fix the salaries for all officers of the Union, sub- ject to approval as provided by this Constitution. * * * Sec. 7—Pensions: All officers shall be eligible for benefits under the NMU Officers’ Pension Plan, subject to such rules and regulations as the Trustees of the Plan may establish.’’ (Emphasis added.) Article 8, entitled ‘‘National Office,’ was also amended in 1960 to provide that the National Office was ‘¢responsible for and shall fix the salaries” of staff personnel of the NMJ, including the non-officers, and shall negotiate collec- tive bargaining agreements for the employees of the NMU. On October 28, 1961, the Trust Agreement of 1952 was amended so as to make eligible for pension benefits non- officers holding the following positions, and the Pension Plan was amended accordingly: Assistant to the President Organizer Maintenance Supervisor Bookkeeping Supervisor Records and Supplies Supervisor Executive Secretary Publicity Director Editor of ‘‘The Pilot’’ SA28 Memorandum Decision of District Court, dated May 23, 1969. Plaintiffs contend that the defendants violated the 1960 Constitution by allowing non-officers to be included in the Pension Plan. On the other hand, the moving defendants assert that they were acting under their power in Article 8 to fix salaries and bargain collectively for NMU employees; and that this power included the right to provide pension benefits under the Pension Plan for non-officers. Article 15 of the 1951 Constitution empowered the National Council ‘‘to make . . , provisions for pensions . . . for officers and employees of the Union.’’ Article 14 of the 1960 Constitution deleted the word ‘*employees,’’ stating that ‘All officers shall be eligible for benefits under the [Pension Plan].’’ Thus, the 1960 Constitution did not continue the authority to include non-officers in the Pension Plan.** While the term ‘‘salaries’’ may include ‘*pensions,’’ as delayed payments of salary, Brumley v. Baxter, 225 N. C. 691, 36 S. E. 2d 281 (1945), see Inland Steel Co. v. N. L. R. B., 170 F. 2d 247 (7th Cir, 1948), cert. denied, 336 U. S. 960 (1949), the 1960 Constitution carefully distin- guished between the two, using the term ‘*compensation’’ in the title of Article 14 to encompass ‘‘salaries’’ in sec- tion 1 and ‘‘pensions’’ in section 7. In the previous Constitution, the word ‘‘salaries’’? was used in Article 15 to cover both. Moreover, a reading of Article 14 of the 1960 Constitution makes a clear distinction between officers and employees. Thus, section 5, with reference to illness, speaks of ‘‘an officer or employee,’ and section 6, relating to severance pay, again speaks of ‘‘an officer or employee,’’ while section 7, dealing with pensions, speaks of ‘‘all officers.’’ Since the 1960 Constitution did not authorize the in- clusion of the non-officers in the Pension Plan and it is ** The authority to provide pensions for employees in the 1951 Constitution was not exercised by the NMU. The Pension Plan between 1951 and 1960 included officers only, SA29 Memorandum Decision of District Court, dated May 23, 1969. not denied that funds of the NMU have been paid to the Trustees for disbursal to the non-officers under the Pension Plan, plaintiffs are entitled to relief under 29 U. 8S. C. § 501. Plaintiffs argue that they are entitled to summary judg- ment since the only issue in the case, the construction of | the 1960 Constitution, has been resolved in their favor. | On the other hand, moving defendants say that there are | contested issues as to which of the individual defendants were responsible for the amendment including non-officers in the Pension Plan; whether adoption of the amendment was a breach of fiduciary duty; and whether plaintiffs’ action is barred by laches. In addition, defendant Karch- mer asserts that he was not timely served by plaintiffs with their cross-motion for summary judgment and that he is not a proper party defendant under 29 U. S. C. § 501. There is no genuine issue of fact as to the responsi- bility of the defendants. It is admitted that defendant Curran, as President of the NMU, and defendants Karch- mer, Segal, and Freedman, as Trustees of the Pension Fund, were responsible for authorizing the amendment including the non-officers in the Pension Plan. Defendant Wall, as Secretary-Treasurer, is responsible for the finan- cial affairs of the NMU, and under the 1960 Constitution he and Curran are ‘‘directed to pay all obligations in- curred by or on behalf of the Union,’’ including payments to the Pension Plan. Defendant Perry, formerly Assistant to the President, was a non-officer who by the amendment was made eligible to receive pension benefits under the Pension Plan. Under 29 U. S. C. § 501, defendants Curran, Wall, and Perry owe a fiduciary duty to the NMU and its members ‘‘to hold its money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordance with its con- stitution. .. and... torefrain. . . from holding or SA30 Memorandum Decision of District Court, dated May 23, 1969. acquiring any pecuniary . . . interest which conflicts with the interests of such organization . . .”’ Defendants Karchmer, Segal, and Freedman owe the same fiduciary duty to the NMU and its members as Trustees of the officers’ Pension Plan. Plaintiffs’ action for breach of defendants’ fiduciary duties is not barred by laches. The amendment, including the non-officers in the Pension Plan was adopted in 1961, and less than seven years later plaintiffs requested the NMU for an accounting and for a return of moneys con- tributed to the Pension Plan. In an action based on breach of fiduciary duties, the defense of laches is carefully scru- tinized, Libby v. L. J. Corporation, 247 F. 2d 78, 82 (D. C. Cir. 1957), and in this case defendants have made no show- ing that they have been prejudiced by the delay. Although it appears that plaintiffs did not timely serve their cross-motion for summary judgment, see Rule 56(c), F. R. Civ. P., the court will consider the cross-motion, inas- much as it could enter judgment for plaintiffs on its own motion, Bell v. Waterfront Commissioner of N. Y. Harbor, 183 F. Supp. 175 (S. D. N. Y. 1960), aff’d, 279 F. 2d 853 (2d Cir. 1960). See also Williams v. Howard Johnson’s Inc. of Washington, 323 F.2d 102, 104 (D.C. Cir. 1965) ; 6 Moore, Federal Practice, {| 56.15[6] (2d ed. 1966). Accordingly, defendant’s motion to dismiss plaintiffs’ action or, in the alternative, for summary judgment, is denied. Plaintiffs’ motion for summary judgment is granted, and judgment will be entered in favor of plaintiffs, directing defendants to account; enjoining defendant Trustees from paying any benefits under the Pension Plan to non-officers ; and directing the Trustees to return to the NMU all moneys received by the Trustees for the benefit of non-officers, with interest from the dates the moneys were received. Plaintiffs are entitled to costs, disbursements ~~ A 2 atin ee Bh A le OT I ES 4 ~ “ . a AEE . Co AI FO AA AR ie sind Ce Ranearrusr a SA31 Memorandum Decision of District Court, dated May 23, 1969. and attorneys’ fees out of the amounts returned by the Trustees to the NMU, in such amounts as may be approved by the court. Settle order on notice. Dated: New York, N. Y., May 23, 1969. Dupuey B. Bonsau U.S.D.J. SA32 APPENDIX C Decisioa and Order of District Court Denying Reargument (July 3, 1969). - Defendants’ motion for reargument is denied. The in- terpretation of the meaning of ‘‘salaries”’ sought by de- fendants would not change the holding that only officers were eligible for benefits under the NMU Officers? Pension Plan, for the reasons stated in the Memorandum filed May 23, 1969. Therefore the inclusion of non-officers in the Plan was not authorized by the NMU Constitution as re- vised in 1960. Since such inclusion was beyond the power of the defendants, plaintiffs are entitled to appropriate relief. Consideration has been given to the affidavit of the de- fendant Martin Segal dated June 11, 1969, which was filed in support of the defendants’ motion for reargument. Mr. Segal is one of the trustees of the NMU Officers’ Pension Plan, who appeared in the action and filed his answer on May 1, 1969. The court does not question Mr. Segal’s good faith as trustee. However, the plaintiffs are entitled to obtain the return to NMU of the monies paid to the Fund on behalf of non-officers since their inclusion was not authorized. It is so ordered. Dated: New York, N. Y., July 3, 1969. Dup.ey B. Bonsar, U.S.D.J. SA33 APPENDIX D Decision and Order of District Court Denying Injunction (July 3, 1969). The amendments to the NMU Constitution are not ex- culpatory provisions prohibited by 29 U. S. C. 501. Their purpose is obviously to include non-officer employees in the NMU Officers’ Pension Plan. According to the Certification of the Honest Ballot Association, dated June 24, 1969, the following amendments were adopted by a vote of 10,043 to 1,685: ‘Add the following paragraph to Article 8, Section 11: (d)—The National Office shall have the authority to provide pensions for all past and present employees of the Union and to protect the pension rights of all past and present employees of the Union. ‘¢ Amend Article 14, Section 7 to read as follows: Pensions: All officers and such employees as the National Office may designate shall be eligible for bene- fits under the NMU Officers’ Pension Plan, subject to such rules and regulations as the Trustees of that Plan may establish. The National Office shall have the au- thority to validate retroactively all pensions heretofore paid under the Plan.”’ : While it is stated that 12,040 members obtained a ballot, it is not stated how many members of NMU were eligible to vote. The amendment to Article 14, Section 7 provides that ‘‘the National Office shall have the authority to vali- date retroactively all pensions heretofore paid under the Plan.’? However, it does not appear that the National Office has exercised this authority. SA34 Appendix D. Plaintiffs’ motion is denied, without prejudice to the plaintiffs seeking further relief by appropriate application if the defendants should violate the order of the court. It is so ordered. Dated: New Nork, N. Y. July 3, 1969. Dupiey B. Bonsau U.S.D.J. SA35 APPENDIX E District Court Opinion, November 15, 1972. Bonsau, D. J. In signing the judgment dated November 19, 1972, the court has allowed plaintiffs’ attorneys, Messrs. Duer & Taylor, the sum of $111,864, of which $110,000 represents counsel fees and disbursements, and $1,864 represents accountants’ fees and disbursements incurred by plaintiffs’ attorneys in connection with this litigation. The amount so allowed is to be paid by NMU from the judgment re- covered by the National Maritime Union (‘‘NMU”’) against the NMU Officers Pension Plan (‘‘the Officers Pension Plan’’) in the amount of $674,222.60, which judgment was dated February 18, 1972 and the amount of which judgment has been paid to NMU. This allowance is made pursuant to Section 501(b) of the Labor-Management Reporting and Disclosure Act of 1959 (‘‘LMRDA”’). In its application for attorneys’ fees, disbursements and necessary expenses (Affidavits of February 9, February 14, July 11, and November 6, 1972), plaintiffs’ attorneys seek a fee of $350,000 plus disbursements as of that date of $3,589.54, and as a necessary expense, the bill of .the ac- counting firm of Greenstein & Greenstein in the amount of $3,724, of which $3,360 is for services and $364 is for dis- bursements. Objections have been filed on the ground that the plaintiffs’ attorneys had unduly puffed up the value of their services and have not furnished a statement of the actual hours spent by them in the prosecution of the litiga- tion. The affidavit filed by plaintiffs’ attorneys on Novem- ber 6, 1972 states: ‘‘] did not make a practice of entering the day by day time spent. However, I know that the hours spent by me and by my said partners averaged at least 15 hours per week. To be on the very conservative side I stated in my affidavits of July 11, 1972, and I repeat nee tae RT RI LT STs 7 SA36 Appendix E. that the time well exceeded 2,500 hours up to that date. *‘Since then additional time was spent at the hearing in Court of July 12, 1972, and in reviewing the steno- graphic records, the preparation of plaintiffs’ brief, the consideration of defendants’ briefs, in the preparation of plaintiffs’ reply briefs, the study of the Court’s opinion, the preparation of judgment, and the papers submitted in opposition to proposed judgments sub- mitted by defendants.”’ In considering the allowance to be made to plaintiffs’ attorneys, the court recognizes that this was a hard-fought litigation brought by three-union members on behalf of NMU;; that plaintiffs were successful in establishing that NMU’s Officer Pension Plan violated NMU’s constitution; that there were proceedings both in this court and in the Court of Appeals, with certiorari being denied by the Supreme Court; and that the plaintiffs have been successful in obtaining a recovery on behalf of NMU from the Officers Pension Plan in the amount of $674,222.60... In deter- mining a reasonable fee for plaintiffs’ attorneys, the court has considered the following factors: (1) the amount of the recovery; (2) the novelty and complexity of the legal issues; (3) the manner in which the services were performed and the standing of plaintiffs’ attorneys: (4) the benefit to NMU; (5) the contingent nature of plaintiffs’ attorneys’ employment; and (6) the time reason- ably expended by plaintiffs’ attorneys. See Derdiarian v. Futterman Corp., 254 F.Supp. 617 (S.D.N.Y. 1966) ; Fox v. ‘In addition, plaintiffs have obtainted a judgment in favor of the Officers Pension Plan against defendant William Perry in the amount of $222,000, plus interest, being the amount of the lump sum pension which was paid to Mr. Perry and to which he was not entitled. , at ——. >) Ne SA37 Appendix E. Glickman Corp., 253 F.Supp. 1005 (S.D.N.Y. 1966) ; Winkel- mam v. General Motors Corp., 48 F.Supp. 504 (S8.D.N.Y. 1942), aff’d sub nom., Singer v. General Motors Corp., 136 F.2d 905 (2d Cir. 1943); Angoff v. Goldfine, 270 F.2d 185 (1st Cir. 1959). Plaintiffs obtained a substantial recovery on behalf of NMU, and it has been said that ‘‘the amount of recovery rather than the time spent is the prime factor in fixing [the] fee.’? Derdiarian v. Futterman Corp., supra at 620. The issues presented were not complicated and the pro- ceedings themselves were quite simple. The issue of whether the inclusion of non-officers in NMU’s Officers Pension Plan violated NMU’s constitution was decided on a motion for summary judgment. A one-day trial was held on August 23, 1971 to determine the amount paid by NMU to the Officers Pension Plan for non-officers: the amount paid by the Officers Pension Plan to non-officers: and the liability of defendant Perry to the Officers Pen- sion Plan. Thereafter, a trial was held on April 13, 14, May 1, and July 12, 1972, on the issue of whether certain officers of NMU and certain trustees of the Officers Pension Plan should be surcharged under LMRDA. No information has been presented as to the expertise of plaintiffs’ attorneys in this type of litigation, and their services, while showing imagination, were routine. Plaintiffs’ attorneys are unable to give the number of hours reasonably expended by them in this litigation. How- ever, they indicate that their services extended over a period of 314 years and estimate that they expended in excess of 2,500 hours to July, 1972. Plaintiffs’ attorneys’ fees were contingent on recovery, i and the provision for attorneys’ fees in Section 501(b) is an important consideration in actions brought under 4 LMRDA. Indeed, without the stimulus provided by Sec- tion 501(b) many deserving cases of violations of LMRDA | SA38 Appendix E. would not be prosecuted by objecting members of the union. In this respect, Section 501(b) is not unlike Section 16(b) of the Securities Exchange Act of 1934. In Smolowe v. Delendo Corp., 136 F. 2d 231 (2d Cir.), cert. denied, 320 U.S. 751 (1943), the Court of Appeals stated at page 241: “Since in many cases such as this the possibility of re- covering attorney’s fees will provide the sole stimulus for the enforcement of §16(b), the allowance must not be too niggardly.’” Plaintiffs’ attorneys seek an allowance, as a necessary expense, the fee claimed by their accountants, Greenstein & Greenstein. Harry Greenstein, a partner of the account- ing firm, filed an affidvait dated February 3, 1972, to which is attached their bill to plaintiffs’ attorneys in the amount of $3,724, dated February 1, 1972, and a copy of their diary entries which state that they spent 96 hours in performing accounting work and in testifying at trial. The accountants claim compensation at the rate of $36 an hour, or $3,360 plus disbursements of $364, making a total of $3,724. The services of Greenstein & Greenstein re- lated only to making an accounting to determine the amount paid by NMU to the Officers Pension Plan for the ac- count of non-officers and the amounts paid by the Officers Pension Plan to non-officers. This was not difficult, in- volving only a limited study of the accounts of NMU and the Officers Pension Plan. In the court’s opinion, the amount claimed is excessive. Plaintiffs’ attorneys will be allowed $1,500 to cover the accountants’ fees, and $364 to cover the accountants’ dishu>sements. Taking the foregoing factors into consideration, plain- tiffs’ attorneys have been awarded the sum of $110,000 for reasonable attorneys’ fees, inclusive of disbursements, *See also Ratner v. Bakery & Confectionery Workers Int. U., 254 F.2d (D.C.Cir. 1965), note 7 at page 306. Reale DR IS Re LE OM No SEY SA39 Appendia E. and $1,864 for the services and disbursements of Green- stein & Greenstein, making a total of $111,864 which shall be paid by NMU out of its recovery from the Officers Pension Plan, of $674,222.60. It is so ordered. Dated: New York, N. Y., November 15, 1972. Duptey B. Bonsai U.S.D.J. t E TBRELY rae FZ PENTEL BEY SA40 APPENDIX F 29 U.S.C. § 481(a), Labor Management Reporting and Disclosure Act of 1959 Sec. 401(a). $481. Terms or Orrice anp ExLection ProcepureE—Orri- CERS OF NATIONAL OR INTERNATIONAL LABOR ORGANIZA- TIONS; MANNER OF ELECTION. (a) Every national or international labor organization, except a federation of national or international labor or- ganizations, shall elect its officers not less often than once every five years either by secret ballot among the members in good standing or at a convention of delegates chosen by secret ballot. Reena te “> eine HPP Wee SA41 APPENDIX G 29 U.S.C. § 501(a) (b), Labor-Management Reporting and Disclosure Act of 1959 Sec. 501 (a) (b). § 501. Finvotary REsPonsimBILity OF Orricers or Lasor Or- GANIZATIONS—DvuTIES OF OFFICERS; Excuupatory Pxo- VISIONS AND REsoLuTions VOID. (a) The officers, agents, shop stewards, and other rep- resentatives of a labor organization occupy positions of trust in relation to such organization and its members as & group. It is, therefore, the duty of each such person, taking into account the special problems and functions of a labor organization, to hold its money and property solely for the benefit of the organization and its members and to manage, invest, and expend the same in accordance with its con- stitution and bylaws and any resolutions of the governing bodies adopted thereunder, to refrain from dealing with such organization as an adverse party or in behalf of an adverse party in any matter connected with his duties and from holding or acquiring any pecuniary or personal in- terest which conflicts with the interests of such organization, and to account to the organization for any profit received by him in whatever capacity in connection with transactions conducted by him or under his direction on behalf of the organization. A general exculpatory provision in the con- stitution and bylaws of such a labor organization or a gen- eral exculpatory resolution of a governing body purporting to relieve any such person of liability for breach of the duties declared by this section shall be void as against public policy. SA42 Appendia G. Violation of duties; action by member afer refusal or failure by labor organization to commence proceedings, jurisdiction; leave of court; counsel fees and expenses. (b) When any officer, agent, shop steward, or repre- sentative of any labor organization is alleged to have violated the duties declared in subsection (a) of this section and the labor organization or its governing board or offi- cers refuse or fail to sue or recover damages or secure an accounting or other appropriate relief within a reasonable time after being requested to do so by any member of the labor organization, such member may sue such officer, agent, shop steward, or representative in any district court of the United States or in any State court of competent juris- diction to recover damages or secure an accounting or other appropriate relief for the benefit of the labor organization. No such proceeding shall be brought except upon leave of the court obtained upon verified application and for good cause shown, which application may be made ex parte. The trial judge may allot a reasonable part of the recovery in any action under this subsection to pay the fees of counsel prosecuting the suit at the instance of the member of the labor organization and to compensate such member for any expenses necessarily paid or incurred by him in connection with the litigation. 8A43 APPENDIX H Olick’s Letter to Judge Hays of June 19, 1973 (Treated as Perry's Petition for Rehearing). June 19, 1973 Hon, Paul R. Hays United States Circuit Court Judge United States Courthouse Foley Square New York, N.Y. 10007 Re: Morrissey v. Curran, et al. Docket #3 72-2443, 73-1082, 73-1363, 73-1383 Dear Judge Hays: The consolidated appeals in the above matter were argued before a panel consisting of yourself and Judges Smith and Timbers on April 11, 1973. A decision was ren- dered on June 18, 1973. One of the issues raised on the appeal relating specifically to William Perry was whether the District Court had jurisdiction to enter a personal judgment against him in the sum of $263,307.00 in favor of the Officers’ Pension Plan. Mr. Perry appealed separately from this judgment and this office, on his behalf, submitted a brief and oral argument on this point. We find nothing in the Court’s decision of June 18, 1973 which in any way disposes of Mr. Perry’s separate appeal or even makes mention thereof. Accordingly, clarification is respectfully requested with respect to the issues raised by Mr. Perry which are sepa- rate and distinct from issues raised by the other appellants. Very truly yours, Arruur 8. OLick Arthur 8. Olick SA44 APPENDIX I Pesner’s Letter to Judge Hays of June 25, 1973 Confirming Petition. June 25, 1973 Honorable Paul R. Hays United States Circuit Court Judge United States Courthouse Foley Square New York, New York 10007 Re: Morrissey v. Curran, et al. Docket Nos. 72-2443, 73-1082, 73-1363, 73-1383 Dear Judge Hays: This letter will confirm my telephone conversation with your law clerk, Thomas Galloway, of June 25, 1973 in which our office was informed that our letter to you dated June 19, 1973 will be considered by you as a petition for re-hearing on behalf of William Perry pursuant to Rule 40 of the Federal Rules of Appellate Procedure. Copies of our June 19, 1973 letter and of this letter are being sent to all counsel for the respective parties in this matter. Very truly yours, Kreryoier, Revxix, Otick & GoLpBERG Steven M. Pesner Steven M. Penser SMP :mia ec: Arthur E. McInerney, Esq. Joseph P. Altier, Esq. Simon H. Rifkind, Esq. Roy L. Reardon, Esq. Herman E. Cooper, Esq. SA45 APPENDIX J Order Denying Plaintiffs-Appellants’ Petition for Rehearing UNITED STATES COURT OF APPEALS, Seconp Cracurt. At a Stated Term of the United States Court of Appeals, in and for the Second Circuit, held at the United States Court House, in the City of New York, on the seventeenth day of July, one thousand nine hundred and seventy-three. - James M. Morassey, Joseru Paprwa, Ratrsn Ipranio, individually and on behalf of the members of the Nationat Maritime Unton or AMERICA, Plaintiffs-Appellants-Appellees, v. Josern Curran, SHannon WaLL, WILLIAM Perry, ApranaM E. FREEDMAN, Defendants-Appellees-A ppellants, Martiw Secat and Leon KarcuMer, Defendants-Appellees. a vv A petition for a rehearing containing a suggestion that the action be reheard in bane having been filed herein by counsel for the Plaintiffs-Appellants and no active circuit judge having requested that a vote be taken on said sug- gestions. Upon consideration thereof, it is Ordered that said petition be and it hereby is denied. A. Dantet Fusaro Clerk SA46 APPENDIX K Order Granting Defendant Perry’s Petition for Rehearing and Supplementing Opinion. The application for a rehearing is granted. The following paragraph shall be added to the last page of the opinion of the Court: “D. Jurisdiction with respect to claim against Perry We hold that the district court was correct in finding that it had jurisdiction to enter and in entering a personal judgment against William Perry and in favor of the Pension Plan in the amount of $263,307.00.’’ In all other respects we adhere to our original decision. J. JosEPH SMITH /s/ J. Joseph Smith Paut R. Hays /3/ Paul R. Hays Wo. H. Trmsers US.C.II. /s/ William H. Timbers August 6, 1973. PRRRUISH atin reese aan aes $A47 APPENDIX L Stipulation of Amounts Paid to the NMU Officers’ Pension Plan on Account of Non-Elected Persons. sawwnyvg Contribution Total 1/8/71 6,388,006 1,689,597 Adjusted as — 31,729 7/1/71 113,575 6,274,431 1,657,868 Agreed 111,337 — 28,947 6,163,094 1,628,921 Interest Adjusted 6/1/70 to 7/1/71 Total Interest Contributions 7/1 = 2,099,260 adjusted 2,066,512 —_—— to 8/23/71 32,748 1/1/71 = 2,075,569 Interest to 12/10/70 1,628,921 1 mo. = 8144.60 1 day = 271.86 Interest 385,972 — 2,605 383,367 — 2,787 380,580 57,011 437,591 1,628,921 2,066,512 14,661 2,081,173 to 8/23 = $14,661.00 SA48 APPENDIX M Plaintiffs’ Demand to Bring This Action. Exursit A, ANNEXED To CoMPLAINT James M. Morrissey 2621 Palisades Avenue New York 10463, New York May 17, 1968 Mr. Shannon Wall National Secretary-Treasurer National Maritime Union 36 Seventh Avenue New York, New York Dear Sir: The Undersigned, a member of the National Maritime Union of America, hereby makes demand upon you, upon the National Maritime Union of America, and upon the latter’s National Office, that you, the said organization, and the latter’s officers and governing body sue and/or recover damages and secure an accounting or other appropriate relief for any and all losses, liabilities, expenses and/or expenditures suffered by the National Maritime Union of America because of or by reason of the purported coverage, in the NMU Officers’ Pension Plan, as revised and amended on and after October 28, 1961, of persons not in fact officers of NMU as defined in the NMU Constitution. In particular, the undersigned makes demand that the National Maritime Union of America, its officers and/or governing body, bring suit or other proceeding to recover for the National Maritime Union of America all moneys contributed pursuant to or by reason of the said NMU Officers’ Pension Plan to any fund or other repository for ~~ ss ig 2 ad 9 i Bs a a a ig 3 F @ PA ig IDs aK Ye IRR Re Nath 0S a A AR EMEA RRS PREC hae E™ INE Hy END IM OS PE At NS eS IS AR ES Smet ENE 6. SA49 Appendix M. the payment of any pension or pensions to any person or persons employed by the National Maritime Union in the capacity of ‘‘ Assistant to the President’’, ‘‘Publicity Di- rector and Editor of the Pilot’’, ‘‘Executive Secretary’’, ‘‘Maintenance Supervisor’’, ‘‘Bookkeeping Supervisor”’, ‘*Records and Supplies Supervisor’, or in any other capacity not that of an elected officer. Fraternally, Name: JAMEs M. Morrissey Book Number: 34210 Address: 2621 Palisades Ave. New York 10463, N. Y. SA50 Appendix M. Exhibit ‘‘A”’’ No. 761078 Receipt For Certified Mail—30¢ Sent To Shannon Wall NMU Street and No. 36 Seventh Ave. P.O. State and Zip Code New York, N. Y., 10004 Extra Services For Additional Fees Return Receipt Shows to whom and date delivered 10¢ fee Shows to whom, date, and where delivered ] 35¢ fee Deliver to Addressee Only (] 50¢ fee POD form 3800 Mar. 1966 No Insurance Coveraged Provided— Not For International Mail (See other side) Postmark or date New York, N. Y. May 17 1968 G.P.O. SRA 8 swt me: MER ANITA Ie HORE DseuraiR SA51 APPENDIX N Agreement and Declaration of Trust “for the Exclu- sive Benefit of” the “Elected Officials” of NMU. AGREEMENT and Deciaration or Trust dated as of De- cember 29, 1952, by and between the [National Maritime Union of America, CIO,] (hereinafter referred to as the ‘‘Union’’), and [Herman FE. Cooper, Martin E. Segal and Leon Karchmer,] (hereinafter referred to as the “Trus- tees”), as Trustees under this Agreement and Declaration of Trust. WITNESSETH: Wuereas, the [National Maritime Union of America, CIO,] desires to establish and maintain a trust fund for the exclusive benefit of its elected officials through pay- ments, upon the terms, and subject to the conditions and limitations contained in this agreement; and Wuereas, the Trustees have declared and do hereby declare that they will receive, hold, administer and dispose of all money and securities paid, transferred, or delivered to them as Trustees, pursuant to the provisions of this Agreement and Declaration of Trust, with the duties and powers and for the uses and purposes herein set forth, and none other; Now, THEREFORE, in consideration of the premises, it is mutually agreed between the parties, as follows: I. DerFtnitions. Wherever used in this Agreement and Declaration of Trust: 1. “Agreement” means this Agreement and Declaration of Trust. II. SA52 Appendix N. “Union” means the [National Maritime Union of America, CIO.] “Trustees” means the Trustees designated herein, as well as their successors designated in the manner herein provided. “Fund” means all moneys and property paid to the Trustees and all securities purchased by the Trustees, pursuant to the provisions of this agreement, together with all interest or other income thereon, and the net proceeds of any sale or other disposition of such securities. “Plan” means the Pension Plan adopted by the Trus- tees, pursuant to the terms of this agreement. “Officer” means a person holding any one of the fol- lowing offices, in accordance with the provisions of the Union Constitution: a) National President b) National Secretary c) National Treasurer d) Vice President e) National Port Committee Member f) Branch Agent g) Field Patrolman h) Patrolman Source or Assets oF THE F'unp. In consideration of this Agreement and upon its exe- cution, the Union agrees to pay to the Trustees an initial payment of $80,000.00. SA53 Appendia N. 2. Commencing with the calendar quarter of January 1, 1953, to March 31, 1953, and for each calendar quar- ter thereafter, the Wnion agrees to pay to the Trus- tees a sum of money equal to 23% of the compensa- tion paid by the Union to the officers of the Union. for the calendar quarter then ending. Such payment shall be due within ten days after the end of each calendar quarter. III. THe Trustees. A. Terms of Office and Successors 1. The Trustees designated herein shall continue to serve as Trustees for life, unless they or any one of them resign or become incapable of discharging their duties as Trustees. A resignation must be submitted in writing to the President of the Union and the question of a Trustee’s incapacity to discharge his duties shall be conclusively de- termined by the other Trustees. 2. In the event of a vacancy created by the death, resignation or incapacity of one of the Trustees, the re- maining two Trustees shall immediately meet and desig- nate a successor Trustee, who shall serve for the same term and upon the same terms and conditions as his predecessor. In the event that the remaining Trustees are unable to designate a successor Trustee, such designation shall be made by a majority vote of the National Officers of the Union. 3. During the interim period prior to the designation of a successor Trustee, the remaining Trustees acting in the manner herein provided, shall administer the affairs of this trust fund, SA54 Appendix N. B. Meetings and Voting 1. Decisions of the Trustees shall be made by the con- curring vote of the majority of the Trustees. The vote of the Trustees may be cast by them in person at a meeting, or may be evidenced by a written instrument signed by them, or telegrams from a requisite number of Trustees, after written notice to all of the Trustees of the question to be decided. 2. Any Trustee may call a meeting of the Trustees at any time by giving written notice not less than forty-eight hours in advance of the time and place thereof to each Trustee. Meetings of the Trustees may also be held at any time without notice if all the Trustees consent thereto. 3. A majority of the Trustees, present in person at any meeting, shall constitute a quorum for the transaction of business. C. Powers and Duties 1. The Trustees shall, as soon as practicable after the execution of this Agreement and Declaration of Trust, meet and adopt a Pension Plan for the purpose of paying retirement benefits to the officers of the Union. ‘The Trustees shall have full and sole discretion to determine the amount of such benefits and the terms and conditions of payment and shall have the power to conclusively de- termine all questions concerning the payment of benefits to any individual recipient or prososed recipient. 2. The Trustees shall deposit all moneys received by them in such bank or banks as they may designate for that purpose and in such manner as the Trustees, in their sole discretion, shall determine. The Trustees shall invest and SA55 Appendix N. reinvest such moneys as in their sole discretion they may determine are not required for current expenditure in any securities and without distinction between principal and income. The Trustees, in their discretion, may keep such portion of the Fund in cash or cash balances as the Trus- tees may, from time to time, deem to be in the best interests of the Fund. 3. The Trustees are authorized and empowered: (a) To sell, exchange, convey, transfer, or otherwise dispose of any property held by them by private contract or at public auction. (b) To make, execute, acknowledge, and deliver any and all documents of transfer and conveyance and any and all instruments that may be neces- sary or appropriate to carry out the powers herein granted. (c) To register any investment held in the Fund in their own names or in the name of a nominee and to hold any investment in bearer form, but the books and records of the Trustees shall at all times show that all such investments are part of the Fund, 4. The Trustees shall not he liable for the making, re- tention, or sale of any investment or reinvestment as made by them, as herein provided, nor for any loss to, or «liminu- tion of the Fund, except due to their own wilful mis- conduct. 5. The Trustees shall be protected in acting upon any paper or document believed by them to be genuine and to have been made, executed, or delivered by the proper party purporting to have made, executed or delivered the same, and shall be protected in relying and acting upon the opinion SA56 Appendix N. of legal counsel (including opinion of legal counsel who is or may be a trustee hereunder) in connection with any matter pertaining to the administration or execution of this Trust Fund. No Trustee shall be liable for any action taken or omitted by him unless such act or omission is the result of wilful misconduct, nor for the acts of any agent, employee, or attorney selected by the Trustees with reasonable care, nor for any act or omission of any other Trustee. 6. No party dealing with the Trustees in relation of this Trust Fund shall be obliged to see to the application of any money or property of the Trust Fund, or to see that the terms of this Trust Fund have been complied with, or be obliged to inquire into the necessity or expediency of any act of the Trustees, and every instrument executed by the Trustees shall be conclusive in favor of every person rely- ing thereon: (a) that at the time of delivery of said instru- ment the Trust Fund hereby created was in full force and effect, (b) that said instrument was executed in accord- ance with the terms and conditions contained in this agree- ment, and (c) that the Trustees were duly authorized and empowered to execute such instrument. 7. The receipt given by the Trustees for any money or other property received by them shall effectually discharge the person or persons paying or transferring the same, and such person or persons shall not be bound to see to the application, or be answerable for the loss or misapplication thereof. 8. The Trustees may deduct from and charge against the Trust Fund any taxes paid by them, which may be imposed upon the Trust Fund, the income, property, or transfer thereof, or of any part thereof, or upon or with respect to the interest of any individual therein, which the §A57 Appendix N. Trustees are required to pay. The Trustees, in their dis- cretion, may contest the validity or amount of any tax, assessment, claim or demand which may be levied or made against, or in respect of the Trust Fund, or against or in respect of any part of the Trust Fund, the income, prop- erty or transfer thereof, or in any matter or thing con- nected therewith. 9. The Trustees shall be empowered to obtain and deter- mine compensation for legal counsel, accounting, technical, actuarial and investment services and such administrative assistance as they may, in their discretion, find necessary. If any Trustee shall have a financial interest in a firm whose services are desired by the Fund, that Trustee shall not participate in discussions or decisions relating to the retention of such firm or the terms and conditions of com- pensation for the services to be rendered. 10, The Trustees may delegate any of their ministerial powers and duties hereunder to one or more of the Trus- tees or to one or more officers of the Union designated by them for that purpose. 11, In the event of any ambiguity, the Trustees shall have the power to construe this Agreement and Declara- tion of Trust, and their construction of the same shall be final and conclusive. 12. The Trustees shall have all other powers necessary and proper to the carrying out of the purposes of the Trust. IV. Tue Union. 1. The Union shall promptly pay to the Trustees the contributions due, in accordance with the provisions of SA5S Appendia N. this agreement, or of the Pension Plan adopted pursuant to this agreement, or, if the Trustees so direct, to deposit such contributions in such depository as the Trustees shall designate. 2. The Union shall provide the Trustees with all records and information requested by the Trustees and designated by the Trustees as being necessary to the performance of their duties. 3. Liability for the payment of the pensions and benefits provided for under the Pension Plan adopted pursuant to the within Agreement and Declaration of Trust and any other liability arising under or out of this agreement shall be limited exclusively to the assets of the Trust Fund, and in the event that such assets are at any time insufficient to provide for the payment of any pension or benefit pay- ments due under the Pension Plan, or any other such lia- bility, no liability for the payment thereof shall attach to or may be asserted against the Trustees. V. MisceLLANgous. 1, Notwithstanding anything to the contrary contained in this Agreement and Declaration of Trust, as now ex- pressed or hereafter amended, it shall be impossible at any time for any part of the trust corpus or income to revert to the Union or to be used for or diverted to any purpose other than the exclusive benefit of the eligible officers, through the payments, upon the terms, and subject to the conditions and limitations contained in the Pension Plan adopted pursuant to this agreement, or in the event of termination, in such manner as shall be designated by the Trustees. i eM a) pene 7 SA59 Appendix N. 2. No officer, or any individual claiming by, through, or under any officer, shall have any right, title or interest in or to or claim against the trust fund or any part thereof, except the right to receive pensions or benefits in the amounts and subject to the terms and conditions provided in the Pension Plan. 8. Neither the pension nor any other benefit under the Pension Plan, nor the assets in the individual account of an officer entitled to receive such pension or benefits shall be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance or charge, and any attempt so to anticipate, alienate, sell, transfer, assign, pledge, encumber or charge the same shall be void; nor shall any such pension or other benefit or such assets be in any manner, whether by action of the officer or his beneficiary or by operation of law, liable for or subject to the debts, contracts, liabilities, engagements or torts of the person entitled to such pension or other benefit. 4. Every individual receiving or claiming a pension or other benefit under this Agreement and Declaration of Trust or Pension Plan enacted pursuant hereto, shall be conclusively presumed to have been competent until the date on which the Trustees shall have received written no- tice, in a form and manner acceptable to them, that such an individual is an incompetent or a minor, for whom a guard- ian or other person legally vested with the care of his person or estate shall have been appointed; provided, that the Trustees may, in their discretion, validily recognize actions by, and conduct transactions with, others acting, prior to the receipt of, or in the absence of such written notice, in behalf of an individual found by the Trustees to be an incompetent or a minor, if the Trustees shall find such actions or transactions to be in the best inter- ests of such individual. SA60 Appendix N. 5. This agreement and the Trust Fund and Pension Plan established hereunder and pursuant hereto have been executed in the State of New York and all questions per- taining to the validity or construction of this instrument and of the acts or transactions of the parties hereto shall be determined in accordance with the laws of the State of New York. 6. In case any provisions of this agreement shall be held illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts of this agreement, but this agreement shall be construed and enforced as if said illegal and invalid provisions had never been inserted herein. VI. TERMINATION. 1. The trust created by this Agreement and Declaration of Trust shall terminate: (a) When the Trustees, in their sole discretion, determine that the purposes of this Agree- ment can no longer be carried out; (b) upon the affirmative vote of two-thirds of the membership of the Union, but in no event shall the trust be terminated by vote of the mem- bership for a period of at least twenty years from the date of execution of this Agreement and Declaration of Trust. 2. If there shall be assets remaining in the Trust Fund upon the termination of this trust, such remaining assets shall be distributed and disposed of in such manner and upon such terms and conditions as the Trustees shall, in their sole discretion, determine. VIT. AMENDMENTS. 1. This Agreement and Declaration of Trust may be amended at any time by an instrument in writing, executed by the President of the Union and a majority of the Trus- tees. SA61 Appendia N. VIII. Name. The fund established by this Agreement and Declara- tion of Trust shall be known as the [“National Maritime Union Officers’ Pension Fund”), and the Trustees may con- duct business under that name. : In wiTNEss WHEREOF, the Trustees and the [National Maritime Union of America, CIO], by its duly authorized officers, have executed this Agreement and Declaration of Trust to evidence their acceptance of the trusts hereby created and their agreement to be bound thereby. SN Oa [NationaL Maritime Union or America, C.1.0.] JosEPH CURRAN A Joseph Curran, National President ‘ Neal Hanley, National Secretary i M. Heptey STonE oe OKO S EES OBOE EEE EH OEHHEBDESHEGEAE OCH GSHODEO®O N. Hedley Stone, National Treasurer TRUSTEES: Herman E. Cooper oo e 6 6.6'o 6 6.6.6: EES 64 OO FE ESO4. EO FE CHREECECO CEOS EOF Herman E. Cooper Leon KarcHMER Leon Karchmer Martin E. Secau eb OeS OO SHSESHHEREESECHOCHORESCHCHBOSCEMRECECSCECE*SE Martin E. Segal ee ee ee ed SA62 APPENDIX O NMU Officers Pension Plan. NMU Officers Pension Plan Pursuant to Article III, Section C, Subsection 1, of the Agreement and Declaration of Trust establishing the NMU Officers Pension Fund, the Board of Trustees, by resolution on Feb. 16, 1953 duly adopted the following Pension Plan. ArtTICcLE I. GENERAL PURPOSE This Pension Plan is to be used as a medium for provid- ing retirement benefits for eligible officials of the NMU. The Plan is geared to retirement benefits for officers who reach the age of sixty-five and have been in office for twenty years or more. Provision is also made for a reduced pen- sion for those officers who reach the age of sixty-five but have less than twenty years in office. Other benefits are provided for officers whose terms of office terminate before they reach sixty-five. This Plan sets forth the full details of the benefits and the eligibility requirements. Articute II. Derinitions Unless the context or subject matter otherwise requires, the following definitions shall govern in this Pension Plan: Section 1. ‘‘Pension Fund’’ shall mean the NMU Of- ficers Pension Fund established pursuant to the Agree- ment and Declaration of Trust dated Dee. 29, 1952, together with any modifications or amendments thereto. Section 2. ‘‘Pension Plan’’ shall mean the NMU Of- ficers Pension Plan, as contained in this document, together with any modifications or amendments hereto. SA63 Appendix O. Section 3. ‘‘Board of Trustees’’ shall mean the Board of Trustees named in the Agreement and Declaration of Trust dated Dec. 29, 1952, establishing the Pension Fund, and as constituted from time to time in accordance with the provisions of said Agreement and Declaration of Trust. Section 4. ‘‘NMU”’ shall mean the National Maritime Union of America, C.I.O. Section 5. ‘‘Officer’’ shall mean a person holding any one of the following offices in accordance with the provi- sions of the NMU constitution: (a) National President (b) National Secretary (c) National Treasurer (d) Vice President (e) National Port Committee Member (f) Branch Agent (g) Field Patrolman (h) Patrolman Section 6. ‘‘NMU Constitution’? shall mean the con- stitution of the NMU in force and effect at the time of adoption of this Pension Plan, together with any amend- ments thereto. Section 7. ‘‘Covered Employment’’ shall mean employ- ment as an officer of the NMU. Section 8. ‘‘Term of Office’’ shall mean the period of time for which an officer is elected to serve in accordance with the provisions of the NMU constitution. aay a TRS ee, LOM ODA ILS CIs WESTIE DU Welte to Oe Me SA64 Appendix 0. Section 9. ‘‘Average Monthly Salary’’ shall mean the total compensation payable to the officer pursuant to the provisions of the NMU constitution for all periods of em- ployment after Aug. 1, 1952, divided by the number of months of such employment. Section 10. ‘‘ Annual Salary’’ shall mean the total com- pensation payable to the officer pursuant to the provisions of the NMU constitution for all periods of employment be- tween Aug. 1 of any one year and J uly 30 of the following year. Section 11. ‘‘Applicant’’ shall mean a person making application for benefits under this Pension Plan. Section 12. ‘‘Pensioner’’ shall mean a person receiving benefits under this Pension Plan. Section 13. ‘‘Beneficiary’’ shall mean the person or per- sons designated by the officer in a form prescribed by the Trustees as the person or persons entitled to receive any benefits that may be payable as a result of the officer’s death. Section 14. The use of the masculine gender shall be construed as including the feminine gender as well. ArticLe III. Recutar PENsION BENEFITS Section 1. An officer shall be eligible for a Regular Pension Benefit if he (a) Has attained the age of sixty-five years, and (b) Has credit for twenty-years or more of covered employment including at least six months of covered employment since Aug. 1, 1952. : ; " WT 4 4 Ma 8 a , th R | % ) a 3 § 3 4 ¢ eshte ‘ ’ WINS! OCARINA ORNS SA65 Appendix O. Section 2. The Regular Pension Benefit shall be a monthly payment in an amount equal to 50% of the ap- plicant’s average monthly salary. The resulting figure shall be rounded off to the next higher whole dollar amount. Section 3. An officer whose application for benefits under this Article is approved shall be entitled, upon re- tirement, to receive the Regular Pension Benefit for the remainder of his life subject, however, to all the provisions of this Plan. The first monthly benefit payment shall be payable for the calendar month immediately following ap- proval of the application for benefits. The last monthly benefit payment shall be payable for the calendar month in which the pensioner dies. If the pensioner dies before re- ceiving 120 Regular Pension Benefit payments, his bene- ficiary shall be paid the Regular Pension Benefit for the number of months, which, when added to the number of Regular Pension Benefits received by the pensioner while ‘ alive, will total 120. i | } ‘ ¥ f f Section 4. No officer shall be entitled to benefits under this Article, if, at the time of his application or thereafter, ; he has received or been approved for benefits under Article IV or Article V of this Pension Plan. ArticLe IV. Repucep Pension Benerits Section 1. An officer shall be eligible for a Reduced é Pension Benefit if he B (a) Has attained the age of sixty-five years, (b) Has credit for ten years or more of covered em- ployment, including at least six months of covered employment since Aug. 1, 1952. Section 2. The Reduced Pension Benefit shall be a monthly payment in an amount equal to that portion of ip sane mcniegn TROPA HNN NF TRE RACERS RMT any : SA66 Appendix O. 50% of the applicant’s average monthly salary which the number of years of the applicant’s credited covered em- ployment bears to twenty. The resulting figure shall be rounded off to the next higher dollar amount. Section 3. An officer whose application for benefits under this Article is approved shall be entitled, upon re- tirement, to receive the Reduced Pension Benefit for the remainder of his life subject, however, to all the provisions of this Plan. The first monthly benefit payment shall be payable for the calendar month immediately following ap- proval of the application for benefits. The last monthly benefit payment shall be payable for the calendar month in which the pensioner dies. If the pensioner dies before receiving 120 Reduced Pension Benefit payments, his bene- ficiary shall be paid the Reduced Pension Benefit for the number of months, which, when added to the number of Reduced Pension Benefit payments received by the pensioner while alive, will total 120. Section 4. No officer shall be entitled to benefits under this Article if, at the time of his application or thereafter, he has received or been approved for benefits under Article III or Article V of this Pension Plan. ArticLe V. Earty RetireEMENT PENSION BENEFITS Section 1. For the purpose of this Article, each officer shall be deemed to have an ‘‘Early Retirement Account.”’ Section 2. After completion of each full year of covered employment after Aug. 1, 1952, an amount equal to 12.5% of the officer’s annual salary for that full year shall be decmed credited to the officer’s Early Retirement Account. DEANE EERIE EEE DET OTD Ly heen ia ae ie SA67 Appendix O. Section 3. For all officers who were officers on Oct. 1, 1952, there shall be deemed credited to each such officer’s Early Retirement Account an amount equal to 12.5% of the officer’s annual salary payable for the period of Aug. 1, 1952, to July 30, 1953, multiplied by the number of years of credit the officer has for covered employment prior to Oct. 1, 1952. For the purpose of this Section, Exhibit ‘‘A’? is annexed hereto, which lists the names of all persons who were officers on Oct. 1, 1952, and the number of years that shall be cred- ited for covered employment prior to Oct. 1, 1952, for each officer included in said Exhibit ‘‘A.”? Exhibit ‘‘A’’ shall be controlling for all amounts credited pursuant to this Section. : § n e t f Hd Fg Section 4. The Early Retirement Pension Benefit shall be the amount of money deemed credited to the officer’s ac- count in accordance with Sections 2 and 3, above. The amount of the benefit shall be computed as of the date the officer makes application for same. ore ee Section 5. An officer shall be eligible for an Harly Re- ; tirement Pension Benefit if at the time of his application : (1) He has credit for sia years or more of covered em- ployment, including at least six months of covered * employment since Aug. 1, 1952, AND : (2) His covered employment has been terminated and he has not been elected to covered employment for the next ensuing term of office, AND (3) He certifies that he is no longer engaged in covered employment. Section 6. An officer eligible for the Early Retirement Pension Benefit under this Section shall have the following : 5 | ee SA68 Appendix O. options with respect to receiving payment of such benefit: (1) He may receive the amount of equal monthly pay- ments over a three year period following approval of his application, or (2) He may receive the amount in equal monthly pay- ments over a five year period following approval of his application, or (3) He may receive the amount in equal monthly pay- ments over a ten year period following approval of his application, or (4) He may receive a monthly pension benefit for the remainder of his life in an amount that can actu- arially be provided by such sum. Section 7. After an officer’s termination of covered em- ployment, he may apply to the Board of Trustees for a determination of the amount credited to his Karly Retire- ment Account, as hereinabove provided, and a determina- tion of the benefits that would be payable to him under each of the four options outlined in Section 6, above, The Trus- tees shall then determine such amounts and advise the officer of same. After the officer has received notification of such amounts, he shall then have sixty days within which to ex- ercise his option under this Article. If he fails to exercise his option then the Trustees shall exercise the option on his behalf. Section 8. If the officer’s covered employment is termi- nated by death, his beneficiary shall have the right to re- ceive the Early Retirement Benefit provided in this Article as though the deceased officer were alive and making ap- plication for such benefit. In the event of the death of an officer, after electing options (1), (2), (3), or (4), in Section 6 above, his bene- CP ARMIN ARLE! OAM hilt om ABN A Pi SA69 Appendix O. ficiary shall be entitled to receive the Early Retirement Benefit for the balance of the period remaining after the officer’s death, as determined by the option elected by the officer, Section 9. No officer shall be entitled to benefits under this Article, if at the time of his application or thereafter, he has received or been approved for benefits under this Article III or Article IV of this Pension Plan. as ee Articte VI. AppLication ror AND PayMENT OF BENEFITS Section 1. An officer may apply for benefits under Article III, Article IV, or Article V before his covered employment terminates; however, no such application may be finally ap- proved or benefits paid until the officer’s covered employ- ment terminates and the officer certifies that he is no longer engaged in covered employment. Section 2. No benefits under Article ITI, Article IV, or Article V shall be paid for any month in which the officer is engaged in covered employment. PORE ELEN ON I EO I OG, OOO Section 3. Once a benefit is paid under either Article ITI, Article TV or Article V, no officer or beneficiary shall be entitled to receive any other benefits under this Pension Plan except in accordance with the Article under which the benefit is paid. RITE SF SE REP 2 SE Section 4. Application for benefits shall be made in writing to the Board of Trustees. Each and every officer, pensioner and beneficiary shall furnish to the Board of Trustees any information or proof requested by it and rea- sonably required to administer this Pension Plan and de- termine eligibility for benefits hereunder. PLD BOOST A Ee ene | SA70 Appendix O. Section 5. This Pension Plan shall become effective im- mediately. Section 6. To the end of making it impossible for officers, pensioners and beneficiaries covered by this Pension Plan to improvidently imperil the provisions made for their re- tirement or welfare by directly or indirectly anticipating, pledging, or otherwise disposing of benefit payments that may be due them hereunder, is is hereby expressly provided that no officer, pensioner, or beneficiary shall have any right to assign, alienate, transfer, sell, hypothecate, mort- gage, encumber, pledge, commute or anticipate any benefit payment that may be made under this Pension Plan, and further, that such payments shall not in any way be sub- ject to any legal process, to levy of execution, to attachment or garnishment proceedings, nor shall such payments be subject to the jurisdiction of any bankruptcy court or in- solvency proceedings by operation of law or otherwise, and any such assignment, ete., shall be void and of no effect whatsoever. Section 7. If an officer or pensioner, at the time of his death, does not have on file in the office of the Pension Fund a valid and duly executed designation of beneficiary, then, at the time of the officer’s death, the Trustees, in their sole discretion, may determine the benficiary from among the following: (a) wife of the pensioner, (b) children of the pensioner, (c) father of the pensioner, (d) mother of the pensioner, (e) brothers and sisters of the pensioner, (f) personal representative of the pensioner’s estate. IDO ROW eh Or OV on SA71 Appendix O. Such designation of the beneficiary by the Board of Trus- tees shall then be deemed, for the purpose of this Pension ’ Plan, as the beneficiary designated by the officer or pen- ; sioner and the use of the word “beneficiary” throughout f the other Sections of the Pension Plan shall be deemed to ' mean the beneficiary so determined by the Board of Trus- tees. Where, under this Section, benefits become payable to a person under 21 years of age, the amount may be paid to such person—without requiring the appointment of a guardian—by paying such amount to anyone over the age of 21 years who submits satisfactory proof that he or she is suppotring and maintaining such person, and gives as- surance to the Trustees in form satisfactory to them that the money so paid over will be used for such purposes, Section 8. If the total amount of benefit due an officer under Article V is $5,000 or less, the Board of Trustees, in their sole diseretion, may make a lump sum payment of said amount upon approval of the officer’s application for benefits under that Article and such payment shall be deemed full and complete payment of benefits under that Article. If the Board of Trustees exercises the right granted by this Section, the options provided in subdivi- sions (1), (2), (3) and (4) of Section 6 of Article V, shall he deemed inoperative. ArticLte VII, Crepirinc Coverep EmpLoyMENtT Section 1. Credit for covered employment shall be de- termined as provided in this Article. Section 2. Covered employment shall be credited only in full year units. Pinions ecanesbdneiretisinnesamacisseastonscial a ts abies, ‘me padtaee stars RENE SA72 Appendix O. 3. An officer shall be given credit for covered employ- ment after Aug. 1, 1952, for the period of time he is em- ployed by the NMU in one of the official capacities listed in Article II, Section 5, of this Plan and for which em- ployment he receives a salary from the NMU. For the purpose of this Section, a full year of covered employment shall be deemed to be 340 days in any period of 365 con- secutive days. Section 4. An officer shall be given credit for covered employment before Aug. 1, 1952, only if such officer is listed on Exhibit “A,” attached hereto, and in such case the amount of credit for such covered employment shall be as indicated on Exhibit “A.” Section 5. If an officer is disabled because of injury or sickness during the term of his office, it shall be presumed that he is engaged in covered employment for any period of such disability. Disability for the purpose of this Sec- tion shall mea total incapacity, because of injury or illness, to perform the duties of an officer of the NMU. The offi- cer shall have the burden of proving such disability to the Board of Trustees. The Board of Trustees, in its sole discretion, may then decide whether such period of dis- ability shall be deemed covered employment. In no event shall credit be given for a period of disability which ex- tends beyond the officer’s term of office. Section 6. If an officer's salary is not paid to the officer by the NMU because of his absence from employment due to a reason other than disability because of injury or sick- ness, the period of such absence shall be deemed to be a period of time in covered employment if the absence is involuntary on the part of the officer and due to cireum- stances beyond his control. The Board of Trustees in its sole discretion may decide whether credit shall be given for such period of absence and the officer shall have the burden of proving the facts to the Board of Trustees. In SA73 Appendix O, ; o- no event shall credit be given for a period of absence i which extends beyond the officer’s term of office. 3 Section 7. No credit shall be granted for covered em- f ployment for any period of time preceding the payment of benefits under Article ITI, IV or V, if an officer engaged in covered employment after receiving such benefits, ex- cept for the six year qualification provision of Section 5 (1), Article V. Section 8. If an ofticer has not been engaged in coy- ered employment for any ten consecutive year period, he shall not be credited with any period of covered employ- ment prior to his re-employment as an officer. ArticLeE VIII. AMENDMENT AND TERMINATION Section 1. The Board of Trustees may amend or mod- ify this Pension Plan at any time in accordance with the Agreement and Declaration of Trust. However, benefits accrued prior to amendment shall not in any event, be reduced or eliminated. Section 2. If the Plan is discontinued, the assets then remaining in the Pension Fund (after providing the ex- penses of the Pension Plan), shall be allocated, to the ex- tent that they shall be sufficient, for the purpose of paying retirement benefits (based on creditable covered employ- ment to the date of discontinuance of the Plan) in the following order of priority: (a) to continue the payment of Regular, Reduced or Karly Retirement Benefits to pensioners whose application for such benefits had been finally ap- proved at the time of discontinuance of the Plan; (b) to provide for the payment of Regular Pension Benefits to officers who have attained the age of 65, or over, on the date of discontinuance of the | RAEN NA SEEM BM NINA EEE A SITE NLL SA74 Appendix O. Plan, without reference to the order in which they shall apply for or be approved for Regular Pen- sion Benefits; (c) to provide for the payment of Reduced Pension Benefits to officers who have attained the age of 65, or over, on the date of discontinuance of the Plan, without reference to the order in which they shall apply for or be approved for Reduced Pen- sion Benefits; (d) to provide for the payment of benefits under Arti- cles III, IV, or V, to beneficiaries of deceased officers or pensioners. (e) to provide Early Retirement Benefits to officers whose employment terminates after the discon- tinuance of the Plan without regard to the order in which such applications are made or approved. Section 3. If, after providing for all of the foregoing, any funds then remain, the Board of Trustees may use such funds in whatever manner they deem proper to carry out and effectuate the purpose of this Pension Plan in providing retirement benefits for officers. However, under no circumstances may any portion of the Pension Fund revert to or be paid to the NMU. We, the undersigned Trustees, certify that the foregoing Pension Plan was duly adopted at a meeting of the Trus- tees of the NMU Officers Pension Fund held on the 16th day of February, 1953. LEMAR ONES DRE REOA EDO aReEED (/s/ Herman E. Cooper) re eee PT eee AN (/s/ Leon Karchmer) TERETE Ee rere eee (/s/ Martin E. 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AGREEMENT AND DECLARATION OF Trust AGREEMENT AND DecLaRATION or TrRUsT made at New York, New York the day of , 1972 by and between the National Maritime Union of America, AFL-CIO, hereinafter referred to as the “Union,” and Alvin Shapiro, hereinafter referred to as the “Trustee.” WITNESSETH: Wuereas, the National Office of the Union is vested with the responsibility for fixing the salaries of all technical, clerical and administrative personnel employed by the Union; and Wuereas, pursuant to this responsibility the Union de- sires to make provision for pensions for those of its em- ployees not already provided with pension benefits and is establishing the NMU Employees Pension Plan (herein- after called the “Plan”) for that purpose, Now, THereEForE, the Union and Trustee do hereby agree and declare each with the other as follows: 1. Union hereby establishes with Trustee a trust which will comprise an initial amount to be actuarially deter- mined to be necessary to fund the Plan’s obl igations and, commencing 1972, and for each month thereafter, a sum equal to twenty-six percent (26%) of the compensation paid by the Union to the Participants for the month then [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385607_1161%3A2. Public record. Not legal advice.