MCKAY v. BOARD OF TRUSTEES OF THE BAKERY DRIVERS AND SALESMAN LOCAL 194 PENSION FUND

Filing 17

OPINION. Signed by Judge William J. Martini on 12/5/17. (gh, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOHN MCKAY,
Plaintiff,

Civ. No. 2:17-02193

v.
OPINION
BOARD OF TRUSTEES OF THE BAKERY
DRIVERS AND SALESMEN LOCAL 194
PENSION FUND,
Defendant.

WILLIAM J. MARTINI, U.S.D.J.:
Plaintiff John McKay brings this action against the Board of Trustees of the Bakery
Drivers and Salesmen Local 194 Pension Fund (“Defendant”), alleging a violation of the
Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq.,
in connection with Defendant’s suspension of Plaintiff’s pension benefit. This matter
comes before the Court on the parties’ cross-motions for summary judgment pursuant to
Federal Rule of Civil Procedure 56. There was no oral argument. Fed. R. Civ. P. 78(b).
For the reasons set forth below, Defendant’s motion is DENIED and Plaintiff’s motion is
GRANTED.
I.

BACKGROUND

Plaintiff is a participant in the Bakery Drivers and Salesmen Local 194 and Industry
Pension Fund (“Pension Fund”). See Pl.’s Rule 56.1 Statement of Material Facts (“Pl.’s
Statement.”) ¶ 1, ECF No. 10-1. The Pension Fund “is a multiemployer/single union
defined benefit pension fund” administered by a board of trustees (“Defendant”), which is
comprised of management and union representatives with equal decision-making authority.
Def.’s Rule 56.1 Statement of Material Facts (“Def.’s Statement”) ¶¶ 1–2, ECF No. 13.
The following facts are undisputed.
Beginning in 1988, Plaintiff worked as a Route Salesman for the Wonder Bread
Baking Company (“Wonder Bread”) at its New Jersey facility until the its closure in June
2013. See Pl.’s Statement at ¶¶ 2–3. In April 2013, roughly three months prior to the
facility’s closure, Plaintiff started working for the Kellogg Company (“Kellogg”)
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approximately 10 hours per week as a Merchandiser. Id. at ¶ 3; see Aff. of G. Prezioso
(“Prezioso Aff.”), Bates No. 43.1 After his termination as a Route Salesman, Plaintiff
applied for and was awarded a monthly pension of $1,249.00. Pl.’s Statement at ¶ 4. Born
in 1957, Plaintiff had not reached the normal retirement age of 65 at the time of his pension
application. Def.’s Statement at ¶ 17. Plaintiff, therefore, applied for an Early Retirement
Benefit under the Pension Fund. Id. Plaintiff did not disclose his employment as a
Merchandiser on his pension application. Id. at ¶ 21.
On October 17, 2016, Plaintiff submitted a certification and employment
verification to Defendant, in which he revealed his employment with Kellogg. Id. at ¶¶
24–25. On December 4, 2016, Defendant determined that Plaintiff engaged in
disqualifying employment under the Pension Fund rules (the “Rules”). Id. at ¶ 39. The
Rules define “disqualifying employment” as “employment with a Contributing Employer;
or self-employment in the same or related business as any Contributing Employer; or
employment or self-employment in any business which is or may be under the jurisdiction
of the Union.” See Prezioso Aff. at 95.
In a letter dated December 19, 2016, Defendant informed Plaintiff that his monthly
pension benefit was being permanently suspended due to his violation of the Rules and that
he further owed $34,972.00 in benefits paid for which he was not eligible. See id. at 156.
Specifically, Defendant stated, “Since the Kellogg Company is in the same or related
business as other contributing employers to the Plan, your current employment is
disqualifying employment under the terms of the Plan.” Id.
Plaintiff filed a written appeal, in which he argued that his employment did not meet
any of the three prohibitions. See id. at 170–72. Plaintiff outlined the differences between
his Kellogg employment and his Wonder Bread employment, including the use of his own
car, an hourly wage, no sales responsibility and the absence of benefits. Id. at 171.
Nonetheless, on March 8, 2017, Defendant denied Plaintiff’s appeal, finding that “none of
the materials provided by [Plaintiff] had addressed the application of the Plan’s suspension
rules or the basis of the Plan’s initial suspension [letter] . . . .” See id. at 180. Defendant
again stated that Plaintiff engaged in disqualifying employment because “delivering food
to retail establishments is work that is within the jurisdiction of the Union.” See id. at 182.
The parties now cross-move for summary judgment. Plaintiff argues first that
Defendant’s suspension violates § 1053(a)(3)(B)(ii) of ERISA because Plaintiff’s Kellogg
employment was not in the same industry as his Wonder Bread employment and he was
not employed in the same “trade or craft.” See Pl.’s Mem. of Law in Supp. of Mot. for
Summ. J. (“Pl.’s Mem.”) 4–6, ECF No. 10-2. Second, Plaintiff argues that Defendant
misapplied the meaning of “disqualifying employment” to Plaintiff’s Kellogg employment
because nothing in the administrative record establishes that Plaintiff delivered food to

1

Hereinafter, all references to page numbers in the Prezioso Affidavit refer to Bates numbers found on the bottom
right hand corner of the pages.

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retail establishments on behalf of Kellogg. See id. at 7. Plaintiff further contends that
Kellogg is not in the same business as Wonder Bread because it does not make and sell
bread. Id.
Defendant argues that judicial review of its decision to suspend Plaintiff’s pension
is entitled to an abuse of discretion or “arbitrary and capricious” standard. See Def.’s Br.
in Supp. of Mot. for Summ. J. (“Def.’s Br.”) 9–14, ECF No. 9-1. Defendant asserts that
the Rules provide for “the grant of absolute and discretionary power to the Trustees over
benefit and eligibility determinations.” Id. at 9. Consequently, according to Defendant,
the Court must give deference to Defendant’s interpretation of the Rules and enforcement
thereof where such enforcement is reasonable. See id. at 11–14. Accordingly, Defendant’s
decision here is entitled to deference because “it was deliberate, rational and reasonable,
and based upon the substantial evidence in the record.” See id. at 16–20. Both parties filed
oppositions to their adversary’s motion, which the Court will address below as necessary.
See Pl.’s Mem. of Law in Opp’n to Def.’s Mot. (“Pl.’s Opp’n”), ECF No. 14; Def.’s Resp.
in Opp’n to Summ. J. Mot. (“ Def.’s Opp’n”), ECF No. 16.
II.

LEGAL STANDARD

Federal Rule of Civil Procedure 56 provides for summary judgment “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986); Turner v. Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990).
A factual dispute is genuine if a reasonable jury could find for the non-moving party, and
is material if it will affect the outcome of the trial under governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court considers all
evidence and inferences drawn therefrom in the light most favorable to the non-moving
party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007). “When confronted with crossmotions for summary judgment, the court must rule on each party’s motion on an individual
and separate basis, determining, for each side, whether a judgment may be entered in
accordance with the summary judgment standard.” Marciniak v. Prudential Fin. Ins. Co.
of Am., 184 F. App’x 266, 270 (3d Cir. 2006).
III.

DISCUSSION

The Court will first address Defendant’s motion because its argument concerning
the appropriate standard of review requires correction. As an initial matter, the Court notes
that the essence of the dispute is the meaning of “disqualifying employment” as defined
under Section 6.10(a)(i) of the Rules. See Prezioso Aff. at 95. Ultimately, the Court finds
that Defendant’s position that Plaintiff’s Kellogg employment disqualifies him from his
pension benefit is unsupported by the administrative record. The Court further finds that
Defendant abused its discretion in suspending Plaintiff’s benefit and grants summary
judgment for Plaintiff.

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A. Defendant’s Motion for Summary Judgment
Defendant correctly identifies that the Rules provide it with discretionary power
over benefit and eligibility determinations. The Rules state, “The Trustees shall be the sole
judges of the standard of proof required in any case and of the application and interpretation
of this Plan, and the decisions of the Trustees shall be final and binding on all parties.”
Prezioso Aff. at 85; see also Def.’s Br. at 9–10. Defendant argues that the law requires this
Court to apply an “arbitrary and capricious standard of review in a circumstance where the
Trustees have been granted such absolute discretionary authority concerning interpretation
and determination of benefits eligibility issues which arise pursuant to the Plan.” See
Def.’s Br. at 10. Accordingly, under this standard, “a court may overturn a decision of the
Trustees and/or plan administrator only if it is without reason, unsupported by substantial
evidence or erroneous as a matter of law.” Id. at 11 (quotation omitted).
i. The appropriate standard of review is one of deference but requires a
multi-factorial analysis where, as here, a conflict of interest exists.
Defendant is correct that courts apply a deferential standard of review to benefit
denial determinations where the pension plan provides the administrator with the authority
to determine eligibility. See Dowling v. Pension Plan for Salaried Emps. of Union Pac.
Corp. & Affiliates, 871 F.3d 239, 245 (3d Cir. 2017). “In such circumstances, [courts] will
not set aside the administrator’s interpretations of unambiguous plan language as long as
those interpretations are reasonably consistent with the plan’s text, and [courts] will only
disturb the administrator’s interpretations of ambiguous plan language when those
interpretations are arbitrary and capricious.” Id. (internal quotations and citations omitted).
Defendant omits a critical factor in the Court’s analysis: a determination as to
whether a conflict of interest exists. Defendant cites to Firestone Tire & Rubber Co. v.
Bruch, 489 U.S. 101, 111–12 (1989), as the “seminal” case on point; however, the Supreme
Court has since expounded upon that decision in Metropolitan Life Ins. Co. v. Glenn, 554
U.S. 105 (2008). In Glenn, the Supreme Court clarified that a conflict of interest exists
“where it is the employer that both funds the plan and evaluates the claims.” See 554 U.S.
at 112. When a conflict exists, courts employ a multi-factorial analysis of a benefit denial
decision, of which the conflict is one factor. See id. at 117. “In such instances, any one
factor will act as a tiebreaker when the other factors are closely balanced, the degree of
closeness necessary depending upon the tiebreaking factor’s inherent or case-specific
importance.” Id.
The Eastern District of Pennsylvania recently identified that “[t]here appears to be
a circuit split regarding whether multiemployer plans [such as Defendant’s] are conflicted
within the meaning of Glenn, and the Third Circuit has not yet spoken on this issue.”
Hansen v. Int’l Painters & Allied Trades Indus. Pension Plan, No. 16-cv-5028, 2017 WL
4539217, at *5 (E.D. Pa. Oct. 11, 2017) (italics added). On the one hand, the Second
Circuit has established a two-step inquiry under Glenn and applied it to multiemployer
plans. First, a court must decide “whether the ‘plan administrator both evaluates claims
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for benefits and pays benefits claims.’” See Durakovic v. Bldg. Serv. 32 BJ Pension Fund,
609 F. 3d 133, 138 (2d Cir. 2010) (quoting Glenn, 554 U.S. at 112). Second, if a conflict
exists, “the court goes on to determine how heavily to weight the conflict of interest thus
identified, considering such circumstances as whether procedural safeguards are in place
that abate the risk, ‘perhaps to the vanishing point.’” Id. (quoting Glenn, 554 U.S. at 117).
Notably, the Second Circuit found “[t]hat the board is (by requirement of statute) evenly
balanced between union and employer does not negate the conflict” and “that the
administrator is here a trust, rather than the employer itself or a third-party for-profit
institution, does not control.” Id. at 139.
On the other hand, the Ninth Circuit arrived at the polar opposite conclusion, finding
that the trustees of multiemployer plans have no economic incentive to grant or deny
benefits. See Anderson v. Suburban Teamsters of N. Ill. Pension Fund Bd. of Trs., 588
F.3d 641, 648 (9th Cir. 2009). The Seventh Circuit has held similarly, finding that a multiemployer plan with an equal number of union and employer representatives “had no
discernible incentive to rule against an applicant.” See Tompkins v. Cent. Laborers’
Pension Fund, 712 F. 3d 995, 1000–01 (7th Cir. 2013) (quotation and citation omitted).
The Ninth and Seventh Circuits’ analyses assume that the only potential conflict of interest
for trustees of a multiemployer plan is economic in nature—i.e., the reduction of plan funds
through the payment of benefit claims. The case at bar presents a different type of conflict,
one of competing interests between unionized and non-unionized laborers. For this reason,
the Court agrees with the Eastern District of Pennsylvania that the Second Circuit’s
reasoning is more persuasive and applies its two-step inquiry to the instant case. See Glenn,
554 U.S. at 112 (finding “the fact that a plan administrator both evaluates claims for
benefits and pays benefits claims creates the kind of ‘conflict of interest’ to which
Firestone’s fourth principle refers”); see also Hansen, 2017 WL 4539217, at *6.
ii. Defendant is conflicted against benefit recipients who undertake
reemployment with “low wage paying, non-union companies.”
Defendant easily satisfies the first step in the Second Circuit’s two-step inquiry. By
its own admission, Defendant possesses “absolute discretionary authority concerning
interpretation and determination of benefits and eligibility issues which arise pursuant to
the Plan.” See Def.’s Br. at 10. Nonetheless, this conflict is but one factor of the Court’s
analysis and the Court must now consider how much weight to give it.
First, the Court finds that Defendant has not “taken active steps to reduce potential
bias,” which tips the balance toward applying more weight to the conflict. See Glenn, 554
U.S. at 117. As noted above, Defendant possesses absolute power over Plaintiff’s claim,
including sole appellate authority. The same individuals who paid Plaintiff’s benefits also
voted to suspend them, reviewed his initial claim for reinstatement and reviewed his appeal.
Two of the trustees present at all times during Defendant’s deliberations were union
representatives. See Prezioso Aff. at 153, 179.

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Second, the Court need look no further than Defendant’s own briefing papers to
identify precisely the type of bias Defendant might hold against Plaintiff. With respect to
its interpretation of “disqualifying employment,” Defendant admitted the following:
Notably, one of the motivating reasons for having adopted such work
restrictions is so that the non-union company, which is competing in
business with the Fund’s contributing employers, that pays only minimum
wage, or thereabout, cannot attract experienced skilled employees who
can only reasonably accept such low paying work because they are
receiving supporting income from the pension fund. The Pension Fund
does not exist to support low wage paying, non-union companies.
Def.’s Br. at 20. Defendant’s words speak for themselves. Clearly, Defendant is
incentivized to find Plaintiff’s Kellogg employment as “disqualifying employment” under
the Rules because such a determination restricts the labor pool of competing non-union
companies. Accordingly, the Court applies appropriate weight to Defendant’s conflict.
Nonetheless, the Court must still give deference to Defendant unless it finds that
Defendant’s interpretation of the Rules was unreasonable. See Dowling, 871 F.3d at 250
(“The conflict may ‘act as a tiebreaker when other factors are closely balanced,’ or it may
mean little at all, depending on other factors at play.” (quoting Glenn, 554 U.S. at 117).
iii. Defendant is not entitled to summary judgment because there is a
genuine dispute as to whether Plaintiff’s Kellogg employment “is or
may be” under the jurisdiction of the union.
Defendant submits that Rule 6.10(a)(i) governs the instant case, which provides for
the suspension of a monthly benefit “for any month in which the Participant is employed
in disqualifying employment before he has attained Normal Retirement Age.” Def.’s Br.
at 17. The Rule defines “disqualifying employment” as “employment with a Contributing
Employer; or self-employment in the same or related business as any Contributing
Employer; or employment or self-employment in any business which is or may be under
the jurisdiction of the Union.” Id. The first two prohibitions plainly do not apply to
Plaintiff: Kellogg is not a Contributing Employer and Plaintiff is not self-employed. The
only question before the Court is whether Plaintiff’s Kellogg employment “may be under
the jurisdiction of the Union.”
The term “jurisdiction” is not defined anywhere in the Rules. In support of its
interpretation, Defendant offers the affidavits of two of the trustees who voted to suspend
Plaintiff’s benefit. See Aff. of R. Malarchik ¶¶ 1, 5, 10, ECF No. 9-2; Aff. of R. Milmoe
¶¶ 1, 8, ECF No. 9-3. As a threshold matter, the Court notes that neither of these affidavits
are part of the administrative record. See Prezioso Aff. at ¶ 2 (“Attached . . ., constitutes
the record that was presented to the Trustees during their deliberation and decisionmaking.”). “[T]he record for arbitrary-and-capricious review of ERISA benefits denial is
the record made before the plan administrator, and cannot be supplemented during the
litigation.” See Howley v. Mellon Fin. Corp., 625 F.3d 788, 793 (3d Cir. 2010) (quotation
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and citation omitted). Accordingly, the Court will not consider the trustees’ affidavits as
evidence in this case.
Consequently, the Court is left with Defendant’s conclusory argument that the work
of a Merchandiser falls under the “jurisdiction of the Union.” First, the Court finds the
term “jurisdiction of the Union” to be ambiguous. The Rules provide no examples of the
types of jobs that fall under the “jurisdiction of the Union” nor do they provide any guiding
parameters of where the union’s jurisdiction begins or ends. Ostensibly then, the term
means whatever the trustees say it means. “If plan language is ambiguous, a plan
administrator is authorized to interpret it, so long as the plan administrator’s interpretation
of the document is reasonable.” Bd. of Trs. of Plumbers & Pipefitters Local Union No. 9
Welfare Fund v. Drew, 445 F. App’x 562, 570 (3d Cir. 2011). The question the Court must
answer now is whether Defendant’s interpretation of “jurisdiction of the Union” is
reasonable with respect to the work of a Merchandiser.
In his appeal of Defendant’s suspension decision, Plaintiff juxtaposed the duties of
a Wonder Bread Route Salesman with those of a Kellogg Merchandiser. See Prezioso Aff.
at 171. The Court finds the following differences noteworthy. First, Plaintiff delivered
daily baked goods from Wonder Bread’s facility to retail stores using a company vehicle,
whereas Plaintiff made no such deliveries for Kellogg and used his own car for transport
to retail stores. Second, Plaintiff was responsible for sales of Wonder Bread products to
the retail stores in which he worked, including ordering those products for the stores,
whereas he had no sales responsibility of any kind for Kellogg. Third, Plaintiff’s Wonder
Bread employment was a full-time, salaried position with benefits, whereas his Kellogg
employment was a part-time position with an hourly wage and no benefits. Id.
Defendant does not dispute the accuracy of any of these differences. Instead, in its
first denial letter, Defendant stated that Plaintiff’s Kellogg employment constituted
“disqualifying employment” under the Rules because “Kellogg Company is in the same or
related business as other contributing employers to the Plan.” See id. at 156. The Court
easily dismisses this rationale because it does not meet any of the three prohibitions stated
under the governing definition of “disqualifying employment,” which Defendant identifies
as the controlling language here. See Def.’s Br. at 17. The Rule prohibits “employment in
any business which is or may be under the jurisdiction of the Union.” See id. (emphasis
added). Under the plain text of the Rule, the type of employment requires scrutiny, not the
company.2 See id.
Defendant’s second denial letter underscores this critical distinction, wherein it
altered its denial rationale. Defendant stated, “In your letter of appeal, you note that your
current job is packing and delivering food for Kellogg’s. In this regard, delivering food to

2

For example, if Plaintiff had been employed as a janitor at Kellogg where his duties entailed cleaning bathrooms and
mopping floors, the Court finds it highly unlikely that Defendant would argue that Plaintiff engaged in “disqualifying
employment.” The Court would also find such an interpretation unreasonable.

7

retail establishments is work that is within the jurisdiction of the Union.” See Prezioso Aff.
at 182 (emphasis added). Defendant argues that “delivering food” includes the work of a
Merchandiser because it involves the food products’ “transport from the store’s backroom
to the retail store shelves.” See Def.’s Br. at 19–20. Defendant admits that the work “does
not involve transport from a warehouse to the store.” See id. at 19.
The Court finds Defendant’s rationale unreasonable. First, nowhere in the
administrative record (or otherwise) does Plaintiff say that he delivered food from a
Kellogg facility to a retail store. It is undisputed that Plaintiff, as a Merchandiser, simply
took Kellogg’s products from the back room of a retail store and arranged them on the
shelves in the front of the store. Defendant’s argument that taking a product from one part
of a store to another part constitutes “delivering food” is not credible.
Second, there is no evidence anywhere in the administrative record that Defendant
actually deliberated on the other differences between Plaintiff’s Wonder Bread
employment and his Kellogg employment. The minutes of the board meetings indicate
that the trustees discussed Plaintiff’s suspension, but they do not indicate the reasoning
behind the trustees’ conclusions. See Prezioso Aff. at 154, 180. Defendant’s letters to
Plaintiff are equally silent on the trustees’ deliberations. See id. at 156–57, 182–83. The
Court finds the employment differences significant, particularly the full-time versus parttime nature of the jobs and the salaried versus hourly nature of compensation. Of course,
the biggest differences are the facts that Plaintiff never delivered food from a Kellogg
facility to retail stores and he never organized the sale of Kellogg’s products to retail stores.
These facts plainly contradict the only potentially credible reason in the administrative
record that Defendant gave to Plaintiff for his benefit suspension: “delivering food to retail
establishments is work that is within the jurisdiction of the Union.” See Prezioso Aff. at
182 (emphasis added).
In light of the inconsistencies in the record, the Court finds that Defendant’s conflict
of interest weighs against deference to Defendant’s decision-making. See Dowling, 871
F.3d at 250 (“The conflict may “act as a tiebreaker when the other factors are closely
balanced . . . .” (citing Glenn, 554 U.S. at 117)). Accordingly, the Court finds that
Defendant’s position that Plaintiff’s Kellogg employment disqualifies him from his
pension benefit is unsupported by the administrative record. Consequently, Defendant’s
motion for summary judgment is DENIED.
B. Plaintiff’s Motion for Summary Judgment
Plaintiff makes two arguments in favor of summary judgment. First, Plaintiff argues
that Defendant’s decision violated ERISA’s anti-forfeiture provisions, namely 29 U.S.C. §
1053(a)(3)(B)(ii). See Pl.’s Mem. at 4–6. The Court easily dismisses this argument
because the provision to which Plaintiff cites only applies to plan participants who have
reached normal retirement age. See 29 U.S.C. § 1053(a) (“Each pension plan shall provide
that an employee’s right to his normal benefit is nonforfeitable upon the attainment of
normal retirement age . . . .” (emphasis added)); see also 29 C.F.R. § 2530.203–3(a) (“A
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plan may provide for the suspension of pension benefits which commence prior to the
attainment of normal retirement age . . . .”). The normal retirement age of the Pension
Fund is 65, which Plaintiff has not yet reached.
Second, Plaintiff argues that Defendant’s decision was arbitrary and capricious.
Plaintiff submits, in part, that the reason given by Defendant for its denial of his appeal
was unsupported by the administrative record because “there is no information in the record
showing that Plaintiff was even delivering food for the Kellogg company.”3 See Pl.’s Mem.
at 7. For the reasons stated above, the Court agrees. See supra Part III.A.iii. In addition,
as stated above, the Court finds Defendant’s shifting rationales for its decision, the absence
of specificity of the trustees’ deliberations, the significant differences in employment
responsibilities, and Defendant’s clear conflict of interest to be evidence of its abuse of
discretion in suspending Plaintiff’s benefits. Accordingly, the Court concludes that
Defendant abused its discretion in suspending Plaintiff’s pension benefit. For this reason,
Plaintiff’s motion for summary judgment is GRANTED.
IV.

CONCLUSION

For the reasons stated above, Defendant’s motion for summary judgment is
DENIED and Plaintiff’s motion for summary judgment is GRANTED. An appropriate
order follows.

/s/ William J. Martini
WILLIAM J. MARTINI, U.S.D.J.

Date: December 5th, 2017

Plaintiff makes three other disjointed and confusing arguments as to why Defendant’s decision was arbitrary and
capricious, which the Court finds irrelevant and need not address.
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