Probizwriters, LLC Writing Portfolio - Persuasive Appeal to Pension Trustees



Written on behalf of a party attempting to secure a reinstatement of pension eligibility status. Outcome: client succeeded in persuading the appeals panel to reinstate full pension rights..





Dear Trustees,

From 1978 until 2000—22 years—I worked for Towing & Transportation, and I have an enduring and long family relationship with International Union. My mother, Betty S, began working with I-Union in 1968 at the Center for Training and Education in Piney, MD; she remained a dedicated employee for 36 years, and rose through the ranks training and working directly with the highest officials. Moreover, my brother-in-law, Bill E. works with I-Union and is a representative with the IMO (International Maritime Organization). Because of this family history, my own relationship with I-Union and many of its leaders started early in my life and endures to this day. In the spirit of my family’s long relationship, I tender this important appeal regarding my I-Union Pension eligibility.

Original Eligibility Inquiries and Declarations — In 2000, because I had invested 22 years with Towing, I knew that before transitioning to other work opportunities it was imperative to inquire with I-Union and verify my pension eligibility status, which I did. In response to my inquiry, I-Union Pension Plan, through its Administrator, on July 11, 2000 issued written notice declaring my pension eligibility and unequivocally stated that, “A review of the Plan records indicates that from 1978 through May 31, 2000, you have accumulated 5,414 days of service under the Plan.” At that time, and through my later departure, I worked 15 day’s on / 15 day’s off and accrued two day’s pension credit for each day worked. Later that year the administrator notice informed me in writing that I had accrued 5,566 days of service, 91 more days than the 5,475 days of covered service needed to be eligible for a Normal Pension Benefit under the I-Union Pension Plan. Based upon that calculation of my service record I was informed by I-Union Pension Plan that I was eligible for a normal pension in the form of a wage-related benefit.

I had every reason to believe that I-Union's numerous calculations were accurate. I had no reason to believe that I-Union's records or calculation methods could be wrong. In good-faith and justified reliance on I-Union’s written declaration that I had enough time in to qualify I stopped working for Towing on August 31, 2000.

Subsequent Confirmations of Eligibility — During 2004 and again in 2009, in proceedings related to the 2005 dissolution of my marriage, the court, legal counsel, Forensic Economist Ronald G., and the parties all analyzed my I-Union pension rights, especially during the QRDO dialog, and all observed and fairly concluded that I had met eligibility requirement. (Mr. G’s official forensic 2004 report concluded and confirmed that my vested pension benefit at age 62 would be $2,747.84 per month.) They too relied on I-Union historic written declarations about my eligibility in entering into certain agreements pertaining to the pension as a community property asset subject to division. They too found I-Union’s written declaration about my eligibility to be a sufficient basis upon which to implement a QDRO. During that 2009 process and heightened examination no lawyer or party ever concluded that my eligibility or calculations were wrong or at risk of being declared wrong. No mistakes or inconsistencies pertaining to my eligibility were observed during the scrutiny attending this domestic relations settlement process. No “red flags” about my pension eligibility were discerned by the professionals and experts focused on my pension rights and the historic pension-related facts during that process.

After the QDRO plan was submitted to the I-Union Pension Plan as required by law, I-Union associate counsel Audrey F. reiterated and confirmed (nine years later) the plan’s 2000 declarations and representations, this time saying on January 6, 2009 and again separately on April 20, 2009, “Plan records indicate that Mr. Smith is vested and upon reaching the Plan's normal retirement age of 62 will be entitled to pension benefit from the Plan based upon his service between 1978 and 2000.” These written statements were further confirmation of the plan’s earlier representations about eligibility. Moreover, the interaction between my professional advisors and the I-Union Pension Plan on submission of the QDRO plan(s) were yet another opportunity for plan administrators to review and verify my eligibility, and had there been any change or mistake, it was incumbent upon the plan to bring it my attention then. The plan did not mention any mistakes or errors pertaining to my eligibility despite these opportunities to do so in 2009.

After the 2000 declaration of my eligibility, no one from I-Union ever communicated anything about being short on days, or questioning the veracity of representations made to me in 2000, or the possibility that there had been an error in earlier calculations, or that I-Union had discovered a need to conduct an audit of their 2000-era pension calculations. No one ever said a thing about being short.

Inexplicable and Time-Barred Reversal — Until mid-2012. Twelve years after representing I was eligible and had exceeded the requirements by 91 days, I-Union inexplicably undid their earlier representations and independent 9-year confirmations and said, “… after reviewing your service records it appears that you do not meet the minimum service requirement for a normal pension benefit.” In 2012 I-Union Pension Plan (Margaret R., Administrator), through associate counsel Audrey F. , by letter dated June 28, 2012, notified me that the administrator’s earlier calculation, and earlier communication, were found to be in error, and that they had now determined that I was short on days for eligibility—asserting that my “actual” accrued qualifying days for purposes of the normal pension benefit were only 5,446 days of covered service—29 days short of eligibility for the normal pension benefit.

Needless to say, I was stunned by this inexplicable reversal and its grave impact on my plans and circumstances. Until receiving that late communication, and for the intervening 12 years, I believed I was fine and secure in my pension eligibility and rights.

Unjust Outcome ¬— This outcome is not only unfair, it’s unjust and inappropriate; like a bait and switch, it’s not right. Years after providing me unequivocal written determinations of my eligibility, and with no intervening communication for 12 years (except repeated confirmations of my eligibility), plan administrators suddenly find very old mistakes that they made, announce that what I had expected and relied upon for 12 years (and worked for 22 years to earn) is now gone, and ask me if I have any records to prove otherwise. This shocks the conscience. Years later I am expected to find 12-or-more-year-old records to help ascertain which time the plan administrators were right or wrong? If they were wrong the first time (2000), what’s to say they aren’t wrong now (2012)? It is unreasonable at such a late date for the plan administrators to attempt to place the burden on me to prove that they were right the first time. The fact is that through such a long time period and the divorce and associated relocations my records are now fractured—had I reasonably been informed it was unsafe to rely upon the veracity of I-Union records and communications I would have ensured the protection of my own records. But that opportunity may now be lost to me through I-Union repeated earlier representations.

Pensioner’s Justified Reliance on I-Union / Burden of Purported Error — I had a right to rely on the veracity of the first calculation, and I did. My reliance was induced and justified by the plan’s superior knowledge and information, which I had a right to trust. If that information was wrong, or the plan’s administrators made mistakes in calculating my eligibility, I shouldn’t have to pay for their mistake, and I shouldn’t be expected to. The burden of any purported error or oversight or miscalculation should be carried by the plan. I did nothing wrong, and I did not make any mistake (except perhaps trusting and relying on the administrator’s written eligibility declarations).

This doesn’t look good, and likely won’t be viewed kindly by a reviewing court should such a review become necessary.

My position is that I actually did put in enough days, and that the plan administrator’s 2000 declarations, representations, and conclusions were correct; moreover, they should stand even if incorrect given the amount of time that passed, the innumerable decisions made and actions taken in reliance thereon in the intervening years, and the fact that I-Union is responsible for the declarations and representations they publish in their official capacity. My justifiable reliance on the administrator’s 2000 calculations and representations (and later reaffirmations), and the intervening actions and decisions based on those representations, and the associated damage that my family and I will suffer if the earlier representations are not honored, preclude enforcement of the 2012 recalculation and call for reinstatement of the original.

Lack of Timeliness / I-Union's Duties Bar Change — From a practical standpoint, the plan’s 2012 letter was not timely, and is consequently inherently unfair and unreliable. On what basis does the plan, 12 years later, after my reasonable and foreseeable detrimental reliance, have the right to recalculate my qualifying days, given the harm it will cause? It is unreasonable for the plan to just say “sorry, we made a mistake” with a complete and casual disregard of the severe, negative consequences of the “mistake.” My intervening (and justified) plans, expectations, and life-changing decisions are interrupted and undone. What is my remedy?

The I-Union Pension Plan administrators have a duty to accurately research and report matters of fact pertaining to pension eligibility. They also have a duty to timely correct any errors, oversights or miscalculations. The plan’s administrators had a duty to promptly discern and report any miscalculations; if it is incapable of doing that, or fails to do that, then it has a duty to stand by its calculations and representations. Administrators are in possession and control of the essential, and presumably reliable, records necessary for ascertaining eligibility. They are also responsible for properly maintaining and interpreting such records. Being in control of relevant documents and records, plan administrators are in a superior and trusted position, one that is expected to engender reliance by union members. Plan administrators know and can clearly foresee that members inquiring of their status will rely upon the official declarations and conclusions the administrators provide in response to member inquiries. Moreover, employees and agents of the administrator are presumed to be capable of competently and reliably ascertaining facts and making calculations necessary to verifying pension eligibility. This is what they are paid and trusted to do.

For these reasons I was justified in relying on the information provided to me in 2000. In fact, given the superior position of the plan administrator, I had a right to rely on the administrator’s representations. For the same reason it is unreasonable for the administrator to many years later “recalculate” and find an error that renders a previously eligible pensioner suddenly ineligible after years of reliance on the earlier official declaration.

The passage of time also renders the 2012 calculation suspect and less reliable given that parties involved in the original calculations and review, and the records they relied upon, or circumstances they may have been aware of, may no longer be available or accessible to aid in ascertaining the veracity of the new calculation, or to verify the legitimacy of the original calculation. The passage of time alone is therefore a bar to the 2012 eligibility recalculation. The recalculation imposes a hardship, and puts me in the position of being unable to protect my interests.

Statutes of limitations are common in many aspects of American jurisprudence where an undue delay by a party causes an undue hardship, an unreasonable outcome, or a lack of access to reliable information, and the principle clearly applies to circumstances like these involving late revisions to relied-upon information issued by a party in a position of trust and confidence.

Request for Resolution — Within the time frame of receiving the 2012 letter, I reached out to individuals I know at I-Union and was told in clear terms, “don’t worry, we’ll handle it … you’re not going to get screwed.” It was because of this contact, and these further assurances, that I didn’t respond formally in writing. Time having now passed without any resolution or further communication from I-Union, I believe it appropriate to formally seek resolution, correction of I-Union’s error, and reinstatement of my previously promised pension benefits.

In view of the foregoing analysis and circumstances, I respectfully urge the Trustees to reinstate the declarations issued by the plan administrator in 2000 (and confirmed twice in 2009) regarding my pension eligibility and undo the damage and hardship and unfairness that will be caused by the 2012 “recalculation.” I have great respect and admiration for I-Union due to my family’s long history with the organization, and sincerely hope that the Trustees will do the right thing and enable us all to avoid more difficult measures.

Please respond to this appeal/inquiry within 30 days of its delivery.

Sincerely,





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Effective / Revision Date: 3-1-2014


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