Advisory Opinion 1975-47

Dear :

This is in reply to your letter requesting an exemption from the Employee Retirement Income Security Act of 1974 (ERISA) for the                                                       Union Local                                                          Accident and Death Benefit Fund(Fund). It was established and is maintained pursuant to Article XII and XIII of the Constitution and By-Laws of the Union. Monies collected for each of these benefits is first deposited into the General Fund of the Local and then transferred monthly into the Fund. All claims must be paid from the Fund. I greatly regret the delay in answering your correspondence.

You maintain that these benefits are much like a "church benefit" which is specifically exempted under the ERISA. However, it is not a "church benefit" that is specifically exempted under section 4(b)(2) of the ERISA, but a "church plan", which is one established and maintained for its employees by a church or by a convention or association of churches. The Fund, of course, does not meet this requirement.

Title I of the ERISA applies to an employee welfare benefit plan if it is established or maintained by any employee organization representing employees engaged in commerce or in any industry or activity affecting commerce, for the purpose of providing for its participants or their beneficiaries, through the purchase of insurance or otherwise, benefits (among others) in the event of accident or death.

Under ERISA, the term "industry or activity affecting commerce" includes any activity or industry affecting commerce within the meaning of the Labor Management Relations Act, 1947. Under this Act parties to an unfair labor practice charge brought by a plumbers' local have been held to be in commerce and to affect commerce. Thus, there would be no basis for holding that Local                                                   does not represent employees engaged in an industry or activity affecting commerce.

You also advance the argument that the Fund should be exempted on the basis of section 4(b)(3), which excludes plans maintained solely for the purpose of complying with applicable workmen's compensation laws or unemployment compensation or disability insurance laws. Since you state that the accident benefit is payable only when workmens' compensation is payable, it is an additional benefit. The plan is not maintained solely for the purpose of complying with applicable workmen's compensation laws but for the purpose of supplementing workmen's compensation and, therefore, cannot be exempted under this provision.

Under the provisions of section 104(a)(3) the Secretary may by regulations exempt welfare benefit plans from all or part of the reporting and disclosure requirements. However, there is not authority to exempt any welfare benefit plan entirely from the requirements of the ERISA. The Fund is subject to the provisions of Title I of the ERISA.