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WILKINS v. MASON TENDERS' DISTRICT COUNCIL PENSION FUND

April 7, 2005.

ABRAHAM WILKINS, Plaintiff,
v.
MASON TENDERS' DISTRICT COUNCIL PENSION FUND and THE TRUSTEES OF THE MASON TENDERS' DISTRICT COUNCIL PENSION FUND, Defendants.



The opinion of the court was delivered by: JOHN GLEESON, District Judge

MEMORANDUM AND ORDER

Plaintiff Abraham Wilkins brings this action pursuant to the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1001 et seq., seeking recovery of pension benefits. During the years 1956 though 1965 and 1985 (the "relevant years"), Wilkins worked for several employers who were obligated to contribute to the Masons Tenders' District Council Pension Fund (the "Pension Fund" or "Fund") on behalf of an employee who performed work covered by certain collective bargaining agreements ("CBAs") within the geographic jurisdiction of the Fund. These employers reported less income to the Fund than Wilkins earned while working for them. In such situations, the Fund places the burden on the employee to prove, by the submission of pay stubs, that the unreported income reflected covered work that should have been reported to the Fund. The Trustees of the Fund (the "Trustees") denied Wilkins's claim because he could not provide the requisite evidence. Wilkins alleges that this denial violated his rights under ERISA. Further, Wilkins claims that the Trustees breached their fiduciary duty to him by (1) improperly shifting to Wilkins the burden of keeping records to determine eligibility for benefits; (2) failing to conduct audits of contributing employers; (3) failing to maintain and secure the records of audits that were taken; and (4) failing to inform Fund participants that they should preserve their records of employment. Wilkins and the defendants have made cross-motions for summary judgment. For the reasons set forth below, defendants' motion is granted in its entirety, and Wilkins's motion is denied.

  BACKGROUND

  A. Relevant Employment History

  Wilkins was born on October 16, 1927. From the 1950s to the 1980s, he worked in the construction industry for at least fourteen different employers. Wilkins was a member of four local unions: Construction & General Building Laborers' Local 47 (the predecessor to Construction & General Building Laborers' Local 79), the Cement and Concrete Workers Union Local 20, the General Building Laborers' Local 66, and the Excavators Union Local 731. During the relevant years, Wilkins worked for seven employers who were signatories to CBAs with the Mason Tenders' District Council of Greater New York and Long Island (the "MTDC"). These employers were obligated to contribute to the Pension Fund on behalf of employees who performed work covered by these CBAs. As set forth in the accompanying chart, there are discrepancies between the amounts Wilkins earned from each of these employers and the amounts these employers reported to the Pension Fund: Year Employer Earnings Reported Wages

 1956 Arfal Foundations $1,360.27 $936.34

 1956 Ralph Amore $639.00 $292.50

 1956 Well-Mixed Concrete Co. $1,609.00 $199.00

 1957 Well-Mixed Concrete Co. $3,502.78 $326.55

 1957 Anthony Cutripi $102.00 $102.00

 1957 Concrete Plank Co. $84.00 $84.00

 1957 Caristo Constr. Corp. $157.20 $157.20

 1958 Well-Mixed Concrete Co. $4,200.00 $417.29

 1959 Well-Mixed Concrete Co. $4,800.00 $324.30

 1960 Well-Mixed Concrete Co. ...


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