Peckham v. Bd. of Trs. of Int'l Bhd. of Painters & Allied Trades Union, 653 F.2d 424 (10th Cir. 1981). · Go Syfert
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Peckham v. Bd. of Trs. of Int'l Bhd. of Painters & Allied Trades Union, 653 F.2d 424 (10th Cir. 1981). Cases Citing This Book View Copy Cite
“in actions to enforce benefit rights of pension plans covered by erisa federal substantive law controls.”
90 citation events (7 in the last 25 years) across 44 distinct courts.
Strongest positive: Pinkie A. Brown v. Retirement Committee of the Briggs & Stratton Retirement Plan, and Briggs & Stratton Corporation (ca7, 1986-09-15) · Strongest negative: Lohmann v. Green Bay Packaging, Inc. (ca10, 1994-11-07)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 34 distinct citers. How cited ↗
cited Cited "but see" Lohmann v. Green Bay Packaging, Inc.
10th Cir. · 1994 · signal: but see · confidence high
But see Peckham v. Board of Trustees, 653 F.2d 424 , 426 n. 4 (10th Cir.1981).
cited Cited "but see" Pierce v. Capitol Life Insurance Co.
Colo. Ct. App. · 1990 · signal: but see · confidence high
But see Dodd, supra. Plaintiffs, not being “employees,” are therefore not able to bring an action under ERISA as “participants.” See Peckham v. Board of Trustees, 653 F.2d 424 (10th Cir.1981).
discussed Cited as authority (verbatim quote) Pinkie A. Brown v. Retirement Committee of the Briggs & Stratton Retirement Plan, and Briggs & Stratton Corporation (2×) also: Cited as authority (rule)
7th Cir. · 1986 · signal: see · quote attribution · 1 verbatim quote · confidence high
in actions to enforce benefit rights of pension plans covered by erisa federal substantive law controls.
discussed Cited as authority (rule) Raymond B. Yates, MD, PC Profit Sharing Plan v. Hendon (2×)
SCOTUS · 2004 · confidence medium
Employees Pension Fund, 879 F. 2d 957, 963 (CA1 1989) (sole shareholder is not a participant); Giardono v. Jones, 867 F. 2d 409, 411-412 (CA7 1989) (sole proprietor is not a participant); Peckham v. Board of Trustees of Int'l Brotherhood of Painters and Allied Trades Union, 653 F. 2d 424, 427-428 (CA10 1981) (sole proprietor is not a participant), with Vega v. National Life Ins.
discussed Cited as authority (rule) Myerscough, Inc. v. Fortis Benefits Insurance
C.D. Ill. · 2000 · confidence medium
Co., 969 F.2d 178, 186 (6th Cir.1992) (sole proprietor not an employee); Kwatcher v. Massachusetts Service Employees Pension Fund, 879 F.2d 957, 960 (1st Cir.1989) (sole shareholder not an employee); Pechkham v. Board of Trustees of Int'l Bhd. of Painters and Allied Trades Union, 653 F.2d 424, 427-28 (10th Cir.1981) (sole proprietor not covered under ERISA plan).
discussed Cited as authority (rule) Wolk v. UNUM Life Ins Co
3rd Cir. · 1999 · confidence medium
Co., 969 F.2d 178, 185-86 (6th Cir. 1992) (health insurance plan whose sole beneficiaries were company's owners cannot qualify as an "employee benefit plan" under ERISA; nor can employers qualify as "participants" of an ERISA plan); Kwatcher v. Massachusetts Service Employees Pension Fund, 879 F.2d 957, 959-60 (1st Cir. 1989) (ERISA's anti-inurement provision prohibits payments to employer from qualified pension plan); Giardono v. Jones , 867 F.2d 409, 411-12 (7th Cir. 1989) (sole proprietor cannot be "participant" of ERISA plan); Peckham v. Board of Trustees of the Int'l Brotherhood of Painte…
discussed Cited as authority (rule) Janice Bowers Wolk v. Unum Life Insurance of America (2×)
3rd Cir. · 1999 · confidence medium
According to Wolk: [i]f UNUM’s interpretation were correct, the language would read that an *357 sole beneficiaries were company's owners cannot qualify as an “employee benefit plan” under ERISA; nor can employers qualify as "participants” of an ERISA plan); Kwatcher v. Massachusetts Service Employees Pension Fund, 879 F.2d 957, 959-60 (1st Cir.1989) (ERISA's anti-inurement provision prohibits payments to employer from qualified pension plan)', Giardono v. Jones, 867 F.2d 409, 411-12 (7th Cir.1989) (sole proprietor cannot be "participant” of ERISA plan); Peckham v. Board of Trustees …
discussed Cited as authority (rule) Erricola v. Gaudette (In Re Gaudette)
Bankr. D.N.H. · 1999 · confidence medium
Id. at 959 (citing Peckham v. Board of Trustees, Etc., 653 F.2d 424, 427 (10th Cir.1981) (Peckham I); McHugh v. Teamsters Pension Trust Fund, 638 F.Supp. 1036, 1043-44 (E.D.Pa.1986); but see Dodd v. John Hancock Mut.
discussed Cited as authority (rule) Peterson v. Equitable Life Assurance Society of the United States (2×)
W.D. Wis. · 1999 · confidence medium
See, e.g., Giardono v. Jones, 867 F.2d 409, 411-12 (7th Cir.1989) (union sued employer who had agreed to adopt area master contract under which he and his employees received health insurance coverage, but failed to keep agreement to hire union employees; court held that employer lacked standing to bring counterclaim under ERISA because of his status as employer) (citing Chase v. Trustees of Western Conference of Teamsters Pension Trust Fund, 753 F.2d 744, 748 (9th Cir.1985)) and Peckham v. Board of Trustees, *706 653 F.2d 424, 427 (10th Cir.1981) (both cases dealing with pension funds rather t…
discussed Cited as authority (rule) Thomas J. Moriarty v. James F. Svec, Individually, Doing Business as Svec and Sons Funeral Home and Doing Business as West Suburban Livery (2×)
7th Cir. · 1999 · confidence medium
As James points out, the ordinary sense of the term implies at least two people — the employer and the employee. 7 Under ERISA, a pension plan participant cannot be both an employer and an employee at the same time: “The majority of courts to address the issue ... have concluded that such ‘dual status’ individuals are barred from participation.” Kwatcher v. Massachusetts Service Employees Pension Fund, 879 F.2d 957, 958 (1st Cir.1989); Peckham v. Board of Trustees, 653 F.2d 424, 427 (10th Cir.1981); but see Dodd v. John Hancock Mutual Life Ins.
discussed Cited as authority (rule) Spurlock v. Employers Health Insurance
E.D. Wis. · 1998 · confidence medium
Finally, the court of appeals for the tenth circuit said, also in a case brought by .a sole proprietor to recover benefits under a pension plan, that “dual status individuals are not eligible for inclu *887 sion in employee pension benefit plans.” Peckham v. Board of Trustees of Int’l Bhd. of Painters and Allied Trades Union, 653 F.2d 424, 427-28 (10th Cir.1981).
discussed Cited as authority (rule) Tormey v. General American Life Insurance
N.D. Ill. · 1997 · confidence medium
“A decision to deny benefits under a plan covered by ERISA will be overturned when ‘(1) arbitrary and capricious, (2) not supported by substantial evidence, or (3) erroneous on a question of law.’ ” Id. at 393 (quoting Pe ckham v. Board of Trustees, 653 F.2d 424, 426 (10th Cir.1981)).
discussed Cited as authority (rule) Harris v. TMG Life Insurance
S.D. Tex. · 1996 · confidence medium
See Fugarino, 969 F.2d at 186 ; Kwatcher, 879 F.2d at 960 ; Giardono, 867 F.2d at 411-12 ; Peckham, 653 F.2d at 427; Brech, 845 F.Supp. at 832-34 . 5 The interpretation stated by the Eighth and Ninth Circuits has not been entirely persuasive.
discussed Cited as authority (rule) Madden v. Country Life Insurance
N.D. Ill. · 1993 · confidence medium
Co., 969 F.2d 178, 186 (6th Cir.1992), cert. denied, — U.S. —, 113 S.Ct. 1401 , 122 L.Ed.2d 774 (1993); and Peckham v. Board of Trustees of Int’l Bhd. of Painters and Allied Trades Union, 653 F.2d 424, 427-28 (10th Cir.1981).
discussed Cited as authority (rule) Janice L. Skinner v. The Administrative Committee of the W.R. Grace & Co. Long Term Disability Income Plan
10th Cir. · 1992 · confidence medium
"The decisions of the plan representatives to deny benefits will be upheld unless such decisions are '(1) arbitrary and capricious, (2) not supported by substantial evidence, or (3) erroneous on a question of law.' " Id. at 895 (quoting Peckham v. Board of Trustees of Int'l Bhd. of Painters & Allied Trades Union, 653 F.2d 424, 426 (10th Cir.1981)). 12 Here, the Plan provides that "[t]he determination of the Administrative Committee as to any disputed question shall be conclusive." Appellee's Supplemental App. at 36.
discussed Cited as authority (rule) Stormont-Vail Regional Medical Center v. Kansas Building Trades Open-End Health & Welfare Fund Uninsured Benefit Plan
D. Kan. · 1991 · confidence medium
In interpreting this standard of review, this court previously stated: “[i]f the authority to determine eligibility or construe terms is within the discretion of the administrator, the administrator’s determination of eligibility ‘must be considered final unless (1) arbitrary or capricious, (2) not supported by substantial evidence, or (3) erroneous on a question of law.’ ” Memorandum & Order, at 9-10 (citing Peckham v. Board of Trustees, 653 F.2d 424, 426 (10th Cir.1981)).
discussed Cited as authority (rule) Clair B. Pratt v. Petroleum Production Management, Inc. Employee Savings Plan & Trust
10th Cir. · 1990 · confidence medium
In reviewing fiduciary benefit decisions, we have repeatedly held that such decisions are to be upheld unless " '(1) arbitrary and capricious, (2) not supported by substantial evidence, or (3) erroneous on a question of law.' " Sage v. Automation Inc. Pension Plan & Trust, 845 F.2d 885, 895 (10th Cir.1988) (quoting Peckham v. Board of Trustees, 653 F.2d 424, 426 (10th Cir.1981)); Torix v. Ball Corp., 862 F.2d 1428, 1429 (10th Cir.1988); Carter v. Central States, SE & SW Areas Pension Plan, 656 F.2d 575, 576 (10th Cir.1981). 31 The Supreme Court has now held that in an ERISA breach of contract …
discussed Cited as authority (rule) Pratt v. Petroleum Production Management, Inc. Employee Savings Plan & Trust
10th Cir. · 1990 · confidence medium
In reviewing fiduciary benefit decisions, we have repeatedly held that such decisions are to be upheld unless “ ‘(1) arbitrary and capricious, (2) not supported by substantial evidence, or (3) erroneous on a question of law.’ ” Sage v. Automation Inc. Pension Plan & Trust, 845 F.2d 885, 895 (10th Cir.1988) (quoting Peckham v. Board of Trustees, 653 F.2d 424, 426 (10th Cir.1981)); Torix v. Ball Gory., 862 F.2d 1428, 1429 (10th Cir.1988); Carter v. Central States, SE & SW Areas Pension Plan, 656 F.2d 575, 576 (10th Cir.1981).
cited Cited as authority (rule) Plumbers & Steamfitters Local Union No. 152 v. Bland
N.D.W. Va. · 1990 · confidence medium
Broth. of Painters and Allied Trades Union, 653 F.2d 424, 427 (10th Cir.1981).
discussed Cited as authority (rule) Sam Giardono v. George M. Jones (2×)
7th Cir. · 1989 · confidence medium
In Peckham v. Board of Trustees, Etc., 653 F.2d 424, 427 (10th Cir.1981), the court held that this statutory mandate precluded sole proprietors from having the dual status of employ er-employee for purposes of ERISA.
cited Cited as authority (rule) George O. Naugle v. John J. O'connell, Harris Combs and Paul R. Dean, Trustees, United Mine Workers of America Health and Retirement Fund
10th Cir. · 1987 · confidence medium
Bhd. of Painters, 653 F.2d 424, 426 (10th Cir.1981).
discussed Cited as authority (rule) Hepler v. CBS, INC. (2×) also: Cited "see, e.g."
Wash. Ct. App. · 1985 · confidence medium
Fine *845 v. Semet, 699 F.2d 1091, 1093 (11th Cir. 1983); Bayles v. Central States, Southeast & Southwest Areas Pension Fund, 602 F.2d 97, 99-100 (5th Cir. 1979); Peckham v. Board of Trustees, supra at 426; Bueneman v. Central States, Southeast & Southwest Areas Pension Fund, 572 F.2d 1208, 1209 (8th Cir. 1978).
cited Cited as authority (rule) McNamara v. Journal Co.
E.D. Wis. · 1984 · confidence medium
Penney Company, Inc., 710 F.2d 388, 393 (7th Cir. 1983); quoting from Peckham v. Board of Trustees, 653 F.2d 424, 425, 426 (10th Cir. 1981).
discussed Cited as authority (rule) George Wolfe v. J.C. Penney Company, Inc.
7th Cir. · 1983 · confidence medium
A decision to deny benefits under a plan covered by ERISA will be overturned when “(1) arbitrary and capricious, (2) not supported by substantial evidence, or (3) erroneous on a question of law.” Peckham v. Board of Trustees, 653 F.2d 424, 426 (10th Cir.1981). 8 We view Prudential’s procedural error as a significant error on a question of law, erroneously interpreting and applying section 1133.
cited Cited "see" Martin v. Pate
S.D. Ala. · 1990 · signal: see · confidence high
See Peckham v. Board of Trustees, 653 F.2d 424, 426 (10th Cir.1981).
cited Cited "see" Peckham v. Board Of Trustees Of The International Brotherhood Of Painters And Allied Trades Union And Industry National Pension Fund
10th Cir. · 1983 · signal: see · confidence high
See Peckham, 653 F.2d at 426.
cited Cited "see" Peckham v. Board of Trustees of the International Brotherhood of Painters & Allied Trades Union & Industry National Pension Fund
10th Cir. · 1983 · signal: see · confidence high
See Peckham, 653 F.2d at 426.
discussed Cited "see, e.g." Arnold v. Lucks
2d Cir. · 2004 · signal: see also · confidence medium
May 2, 1991) (“[T]he Local 807 Labor-Management Pension Fund ... is a multiemployer plan within the meaning of Section 3(37)(A) of ERISA, 29 U.S.C. § 1002 (37)(A).”), aff'd, 956 F.2d 1160 (2nd Cir.1992) (table decision); see also Peckham v. Bd. of Trs. of Int’l Bhd. of Painters, 653 F.2d 424, 426 (10th Cir.1981) (noting, in a case involving two sole propri-etorships contributing to a union pension fund, that the union pension fund “represents the classic example of an ERISA employee pension benefits plan”).
discussed Cited "see, e.g." Arnold v. Lucks
2d Cir. · 2004 · signal: see also · confidence medium
May 2, 1991) ("[T]he Local 807 Labor-Management Pension Fund ... is a multiemployer plan within the meaning of Section 3(37)(A) of ERISA, 29 U.S.C. § 1002 (37)(A)."), aff'd, 956 F.2d 1160 (2nd Cir.1992) (table decision); see also Peckham v. Bd. of Trs. of Int'l Bhd. of Painters, 653 F.2d 424, 426 (10th Cir.1981) (noting, in a case involving two sole proprietorships contributing to a union pension fund, that the union pension fund "represents the classic example of an ERISA employee pension benefits plan").
cited Cited "see, e.g." Spann v. Northwestern Mutual Life Insurance
M.D. Ala. · 1992 · signal: see also · confidence low
See also, Peckham v. Board of Trustees, etc., 653 F.2d 424 (10th Cir.1981).
discussed Cited "see, e.g." George Kwatcher v. Massachusetts Service Employees Pension Fund
1st Cir. · 1989 · signal: see, e.g. · confidence medium
See, e.g., Peckham v. Board of Trustees, Etc., 653 F.2d 424, 427 (10th Cir.1981) (Peckham 7 ); McHugh v. Teamsters Pension Trust Fund, 638 F.Supp. 1036, 1043-44 (E.D.Pa.1986); but see Dodd v. John Hancock Mutual Life Ins.
discussed Cited "see, e.g." McHugh v. TEAMSTERS PENSION TRUST FUND OF PHILA.
E.D. Pa. · 1986 · signal: see also · confidence medium
See also Peckham v. Board of Trustees, 653 F.2d 424, 426-28 (10th Cir.1981); Gomez v. Lewis, 414 F.2d 1312, 1315-16 (3d Cir.1969); Freeman v. Central States, Southeast and Southwest Areas Pension Fund, 86 Lab.Cas.
discussed Cited "see, e.g." McLendon v. Continental Group, Inc.
D.N.J. · 1985 · signal: see also · confidence low
See also Peckham v. Board of Trustees of the International Brotherhood of Painters and Allied Trades Union, 653 F.2d 424, 426 (10th Cir.1981) (plan was a “classic example of an ERISA employee pension benefit plan” where it “was established to provide retirement benefits for Employees”); Murphy v. Inexco Oil Co., 611 F.2d 570, 575 (5th Cir.1980) (an employee pension benefit plan is one “designed for the purpose of paying retirement income whether as a result of their express terms or surrounding circumstances”); Bauman v. Bish, 571 F.Supp. 1054, 1063 (N.D.W.Va.1983) (employee stock …
discussed Cited "see, e.g." Pulaski Highway Express, Inc. v. Central States Southeast & Southwest Areas Health & Welfare & Pension Funds (In Re Pulaski Highway Express, Inc.)
Bankr. M.D. Tenn. · 1984 · signal: see, e.g. · confidence low
See, e.g., Peckham v. Board of Trustees of the International Brotherhood of Painters and Allied Trades Union, 653 F.2d 424, 427 (10th Cir.1981) (“our reading of ERISA convinces us that dual status individuals are not eligible for inclusion in multi-employee benefit plans”, citing the “shall never inure to the benefit” language relied on by Central States).
Retrieving the full opinion text from the archive…
John R. Peckham and W. T. Woolum
v.
Board of Trustees of the International Brotherhood of Painters and Allied Trades Union and Industry National Pension Fund
80-1488.
Court of Appeals for the Tenth Circuit.
Aug 10, 1981.
653 F.2d 424
Cited by 31 opinions  |  Published

653 F.2d 424

2 Employee Benefits Ca 1323

John R. PECKHAM and W. T. Woolum, Plaintiffs-Appellees,
v.
BOARD OF TRUSTEES OF the INTERNATIONAL BROTHERHOOD OF
PAINTERS AND ALLIED TRADES UNION and Industry
National Pension Fund, Defendants-Appellants.

No. 80-1488.

United States Court of Appeals,
Tenth Circuit.

Argued March 18, 1981.
Decided May 12, 1981.
Rehearing Denied Aug. 10, 1981.

Fred Weldon of Mullinax, Wells, Baab & Cloutman, Dallas, Tex. (Larry D. Muse of Lampkin, Wolfe, McCaffrey & Tawwater, Oklahoma City, Okl., with him on the brief), for defendants-appellants.

Daniel J. Gamino of Henderson, Mann, Claunch, Gamino & Muehleisen, Oklahoma City, Okl., for plaintiffs-appellants.

Before SETH, Chief Judge, and HOLLOWAY and BARRETT, Circuit Judges.

BARRETT, Circuit Judge.

[*~424]1

The Board of Trustees of the International Brotherhood of Painters and Allied Trades Union and Industry National Pension Fund (Pension Fund) appeals an adverse judgment involving interpretation and application of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.A. §§ 1001 et seq.

Factual Background

John R. Peckham

2

In 1936, Peckham joined Local 807 of the International Brotherhood of Painters and Allied Trades Union (Union). After acquiring journeyman status, he established his own painting business in the 1940's Peckham Painting Company.[1] Early in his business career, Peckham worked alone on all jobs. As his business grew, employees were hired even though Peckham continued to function in dual capacities as a contractor and union painter. See Union Const. §§ 95, 96 (1975).

3

Peckham first became aware of the Pension Fund in connection with the re-negotiation of the Union collective bargaining agreement in 1969, to which he was an employer signatory. That agreement required employer contributions to the Pension Fund for each employee commencing May 15, 1970. Although Peckham began immediate contributions on behalf of his employees, he delayed his entry into the plan until September, 1972. He continued monthly contributions on his own behalf until December, 1975, when he retired. In total, approximately $2,000 was contributed to the plan on Peckham's behalf.

4

In March, 1976, Peckham formally applied for pension benefits. The application was denied in July of that year because of inadequate past service credits. Pension Fund, Rules and Regs., Art. IV; Pension Fund, Amend. Rules and Regs., Art. IV. Following Peckham's submission of additional material, the application was again denied, but on different grounds that Peckham was not a covered employee as required by the plan instruments. Pension Fund, Trust Agree., Art. I, § 8; Pension Fund, Rules and Regs., Art. I, § 8; Pension Fund, Amend. Rules and Regs., Art. I, § 1.08. The Pension Fund's administrator offered to return the most recent twelve months of contributions. The offer was declined. This action ensued.

W. T. Woolum

[*~425]5

Woolum's factual scenario tracks that of Peckham's. Woolum joined Local 807 in 1941. After working as an apprentice and journeyman painter, he also established his own painting business Woolum Contracting Company.[2] Woolum commenced his business as the sole workman. As the business grew, he, too, hired employees. He worked alongside his employees, using the tools of the trade. Woolum began making contributions on his own behalf in 1970. At the time of trial, his contributions totaled $6,000.00.

6

After learning of Peckham's difficulty in obtaining pension benefits, Woolum requested the business agent of Local 807 to make inquiry as to Woolum's eligibility. The Pension Fund Administrator informed Woolum of his ineligibility as an employer in March, 1977 and offered return of all contributions. Like Peckham, Woolum declined the offer.

Proceedings Below

7

Following the denial of their respective claims, Peckham and Woolum commenced this action to recover benefits due them under the plan and to clarify their rights to future benefits. The case was tried to a jury on two principal theories: (a) that the Pension Fund acted arbitrarily in classifying them as non-employee/participants; and, (b) that the plan documents did not meet ERISA standards of clarity as to the ineligibility of employers.

8

On a verdict for the claimants, the Court awarded Peckham pension benefits retroactive to May 1, 1976, and ordered payment of Woolum's pension benefits upon retirement. Attorney fees were also awarded. The Pension Fund's motions for judgment notwithstanding the verdict, or, alternatively, new trial, were denied.

9

The primary issue presented is whether the Pension Fund acted arbitrarily in denying claimants' pension benefits based on their employment status. Other issues are raised on appeal. In view of our disposition, we elect not to reach them.[3]

The Merits

[*426]10

In actions to enforce benefit rights of pension plans covered by ERISA federal substantive law controls. 29 U.S.C.A. § 1144(a); Paris v. Profit Sharing Plan, 637 F.2d 357, 361 (5th Cir. 1981); Landro v. Glendenning Motorways, Inc., 625 F.2d 1344 (8th Cir. 1980). Cf. Eaves v. Penn, 587 F.2d 453 (10th Cir. 1978) (applying similar standards to fiduciary conduct.)[4] On review, the clear weight of authority mandates that the fund administrator's determinations of eligibility must be considered final unless (1) arbitrary or capricious, (2) not supported by substantial evidence, or (3) erroneous on a question of law. Paris v. Profit Sharing Plan, supra, at p. 362; Aitken v. IP and GCU-Employee Retirement Fund, 604 F.2d 1261, 1264 (9th Cir. 1979).

A.

11

The Pension Fund involved in this controversy "was established to provide retirement benefits for Employees who are represented for the purpose of collective bargaining by the Union." Pension Fund, Rules and Regs., Art. II, § 1; Pension Fund, Amend. Rules and Regs., Art. II, § 2.01. As such, it represents the classic example of an ERISA employee pension benefit plan. 29 U.S.C.A. § 1002(2).

12

The plan instruments grant broad authority to the trustees over questions of participant eligibility. Pension Fund, Trust Agreement, Art. IV, § 2, Art. VI, § 3; Pension Fund, Amend. Rules and Regs., Art., VIII, § 7.03. Expressly excluded from the class of eligible participants are self-employed individuals,[5] employers, and owners of business organizations which have agreed to make contributions in collective bargaining agreements. Pension Fund, Trust Agreement, Art. I, §§ 6-9; Pension Fund, Rules and Regs., §§ 6-8, 16; Pension Fund, Amend. Rules and Regs., §§ 1.06-1.08.[6] The eligibility exclusions appear in and are, in some cases, further explained by other plan documents. See e. g., Pension Fund, Explanatory Booklet, Joint Exhibit III, p. 22; Pension Plan, Remittance Notice, Defendants' Exhibits A and B.

13

Peckham and Woolum clearly fall within the purview of the exclusionary provisions referred to above. Both are self-employed as sole proprietors. Each are signatories as employers to collective bargaining agreements with the Union. Woolum has participated on management's negotiating committee for collective bargaining as an employer for a number of years. R., Vol. VII, p. 129. Both are contributing employers within the meaning of plan instruments, and ERISA. 29 U.S.C.A. § 1002(5); Pension Fund, Trust Agreement, Art. I, § 6; Pension Fund, Rules and Regs., Art. I, § 6; Pension Fund, Amend. Rules and Regs., Art. I, § 1.06.

B.

14

Despite these facts, appellees maintain they are eligible as dual status employer-employees. We do not agree.

15

Our reading of ERISA convinces us that dual status individuals are not eligible for inclusion in employee pension benefit plans. See e. g., 29 U.S.C.A. § 1103(c)(1) ("the assets of a plan shall never inure to benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan..."). (Emphasis supplied).

16

The regulations of the Secretary of Labor, promulgated to clarify and implement the employee pension benefit plan terms of the Act, buttress our conclusion. Those regulations provide, in part, "(a)n individual and his or her spouse shall not be deemed to be employees with respect to a trade or business, whether incorporated or unincorporated, which is wholly owned by the individual and his or her spouse..." 29 C.F.R. § 2510.3-3(c)(1) (1980). Both appellees are excluded by the terms of this regulation. We, of course, are not free to preclude its application so long as its terms are not fundamentally inconsistent with the provisions of the Act. Where a regulation "involves a contemporaneous construction of a statute by the men charged with setting its machinery in motion", the regulation cannot be stricken unless plainly erroneous. Udall v. Tallman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965), quoting, Power Reactor Co. v. Electricians, 367 U.S. 396, 408, 81 S.Ct. 1529, 1535, 6 L.Ed.2d 924 (1961).

17

The legislative history of the Act also demonstrates the fallibility of appellees' argument. See House Rep.No. 93-533, 93rd Cong., 1st Sess., Reprinted (1974) U.S.Code Cong. & Admin.News, pp. 4639, 4648; Senate Rep.No. 93-127, 93rd Cong., 1st Sess., Reprinted (1974) U.S.Code Cong. & Admin.News, pp. 4838, 4851. ("The definition of 'employee' is intended to encompass any person who has the status of an 'employee' under a collective bargaining agreement.") Neither appellee falls within this definition.

18

Other indicia of congressional intent in this area is found in the comprehensive reorganization of existing laws, which then fostered unequal treatment as between employee pension benefit plans and other qualified pension plans. Individual retirement accounts were established pursuant to 26 U.S.C.A. § 408. The maximum amount of deductible contributions for H.R. 10 plans on behalf of self-employed persons was increased, 26 U.S.C.A. §§ 401(j), 404(e). The creation and improvement of these plans by the passage of ERISA undoubtedly formed the basis for the Secretary of Labor's exclusion of owner-employers and self-employed persons from the operation of employee benefit plans. 29 C.F.R. § 2510.3-3(c)(1) (1980).

C.

19

In light of the undisputed facts adduced at trial, we must hold the Pension Fund's determinations as to appellees' ineligibility were not arbitrary and capricious as a matter of law.[7] Cf. Wardle v. Central States, supra (truck owner-operator did not possess requisite "employee" status); Aitken v. IP and GCU-Employer Retirement Plan, supra. (summary judgment for Pension plan proper in case involving sole proprietor-"employee"); but see Reiherzer v. Shannon, 581 F.2d 1266 (7th Cir. 1978) (substantial shareholder of employing corporation "employee" under pension plan).

20

The judgment is reversed and the cause is remanded. Upon remand, the District Court should consider (1) whether appellees are entitled to recover contributions made on their behalf to the Pension Fund; and (2) whether an award of attorney's fees is permissible under 29 U.S.C.A. § 1132(g)(1) or under state law.

[*~427]21

REVERSED AND REMANDED.

1

Peckham Painting Company is a sole proprietorship

2

Woolum Contracting is a sole proprietorship

3

We do note, however, that at least two circuits have held that ERISA does not grant litigants a right to trial by jury. Calamia v. Spirey, 632 F.2d 1235 (5th Cir. 1980); Wardle v. Central States, 627 F.2d 820 (7th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 922, 66 L.Ed.2d 841 (1981)

4

Landro, supra, applied state law under 29 U.S.C.A. § 1144(b)(1). While some of the Court's language may arguably apply here, we believe the recent Paris, supra, decision is more closely analogous. In any event, Landro's holding may be questionable in light of Cowan v. Keystone Employee Profit Sharing Fund, 586 F.2d 888 (1st Cir. 1978). (29 U.S.C.A. § 1144 limits 29 U.S.C.A. § 1132 jurisdiction to independent, actionable events occurring after January 1, 1975)

5

"(E)arning income directly from one's own business ... rather than as a specified salary or wages from an employer." Webster's, Third New International Dictionary, unabridged, 2060 (1976)

6

"EMPLOYEE. The term 'Employee' means: (a) Any person who performs work under a Collective Bargaining Agreement between a Contributing Employer and the Union and for whom the Employer is obligated to make contributions to the Trust; (b) any full time salaried officer and employee of any Local Union or District Council which is permitted to participate in the Fund in accordance with the provisions of Article II hereof; (c) any member of such other class of employees employed by an Employer which is not within the bargaining unit represented by the Union, provided that the employee's class is accepted for participation in the Fund in accordance with the provisions of Article II hereof. The term 'Employee' shall not include any self employed person or any person who is an Employer or an officer or director of a corporation or a partner or owner of a business organization which such corporation or business organization is a Contributing Employer." Pension Fund, Trust Agreement, Art. I, § 8; Pension Fund, Rules and Regs., Art. I, § 8

7

Having determined that appellees are not plan participants under ERISA, they cannot contest the alleged violations of 29 U.S.C.A. § 1022(a)(1) in a civil action. See 29 U.S.C.A. § 1132(a)(3)