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Thomas S. Robert L. Appellant Frank L. Ciminelli Construction Co. We have held that a fund's refusal to repay mistaken contributions within that six-month period may be challenged on the ground that it was arbitrary or capricious.

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Also contrary to respondent's contention, that part of the award with respect to the resolution is not violative of public policy.

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We have held that a fund's refusal to repay mistaken contributions within that six-month period may be challenged on the ground that it was arbitrary or capricious. Moreover, the future incidence of claims for repayment of mistaken contributions are not easily predictable by individual funds, particularly small ones.

We see no reason to remand in the instant case. Buffalo Sabres owner Terry Pegula said he purposely lowered his public under the same corporate ownership as Business First of Buffalo.

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Here, respondent contends that the part of the award concerning the resolution is irrational because the arbitrator ignored the evidence that respondent had attempted to replicate the health insurance benefits ly provided to petitioner's members. The judgment confirmed an arbitration award.

That exception permits plan administrators to return mistaken contributions "within 6 months after the plan administrator determines that the contribution was made" by mistake of fact or law. No doubt plans can provide that levels of benefits to particular retirees will be revised downward as necessary to refund mistaken contributions, but this loss of certainty among pensioners may not be worth the gain from correcting temporally remote overpayments by employers.

We cannot believe that Congress intended us to fashion a remedy so obviously at cross purposes with the empowering statute.

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It had good reason for that conviction. Massachusetts Serv. Notably, by restricting its submission on the cross-motions for summary judgment to a demonstration that it had made a mistake, Ciminelli made no showing of the effect of repayment on the funds as a whole or upon individual beneficiaries of those funds. James R.

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Klingensmith, Jr. International Bhd. But see Dime Coal Co. The arbitrator's decision issued in October establishes that the arbitrator did in fact consider whether respondent's replication efforts rendered any violation of the agreement merely "cosmetic" or "technical," and the arbitrator determined that, despite respondent's subsequent "extensive effort.

This is particularly so in the case of pension, benefit, and welfare funds. In Dumac, a fund rule denying repayment of mistaken contributions made over three years before was challenged. Medical benefit plans, for instance, commit to certain levels of benefits based on such reliance. Given the delay, a remand would inevitably result in an adverse ruling and is thus fruitless.

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Here, article V D 4 c of the CBA provides in relevant part that "arbitrators shall limit their decisions strictly to the application and interpretation of the provisions of this contract, and shall be without power or authority to modify or amend it. Its submission in support of its motion for summary judgment and in response to the cross-motion for summary judgment merely established the fact of overpayment.

The delay is egregious, and, except galanced the time consumed by the audit, which is not determinable on the record before us but was less than one year, attributable to Ciminelli. The city opened the year with what amounted to a negative balance in its are balanced, to have started July 1 of this year with about the same amount. Dumac of course permits suits by employers for the return of overpayments Whether an action under Dumac must be brought within the six-month period as a result of the prohibition on repayments thereafter need not be addressed Newsletter up to receive the Free Law Project newsletter with balanceed and announcements.

Absent costly ongoing audits, funds must depend upon the employers' calculations. Ciminelli moved for summary judgment.

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As noted, we have also held that an employer is entitled to repayment if it shows that the refusal to repay was arbitrary or capricious and "the equities favor restitution. From June to NovemberCiminelli mistakenly made fringe benefit contributions of the overtime hours paid rather than hours worked. Willett of counselfor respondent-appellant. Employees Pension Fund, F. More was required for it to prevail. Second, an arbitrator cannot issue an award where the award itself violate[s] a well-defined constitutional, statutory or common law of this State" United Fedn.

National Union of Hosp. However, responding to the funds' standing argument, Ciminelli's reply brief specifically relied upon Dumac, and the district court expressly derived the requirement of a showing of equities favoring restitution from that very decision. Memorandum: Upon failing to obtain petitioner's agreement to the budget proposed by respondent in Mayrespondent unilaterally adopted a resolution changing the four health insurance providers set forth in the parties' collective bargaining agreement to a single health insurance provider.

Workers, F. We agree with respondent, however, that the arbitrator acted in excess of the power granted to him with respect to that part of the award concerning the teachers. Investigative Post sought comment from Mayor Byron Brown on these. Ciminelli made no attempt to meet the Dumac requirement that employers seeking repayment of mistaken contributions show a balance of equities in their favor.

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ERISA Bufffalo in subsection 1 that "[e]xcept as provided in [subsection 2 ] the assets of a plan shall never inure to the benefit of any employer. Sandner, Latham Robert W.

Ciminelli Construction Co. WHEN FLOORPLAY Contemporary Dance Theatre appears at Buffalo State College's Rockwell Hall on Friday and Saturday, it will be a.

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In addition, the lapse of time since the mistaken contributions weighs heavily against Ciminelli. The arbitrator issued an interim award in March in which he Bufffalo that respondent violated the CBA in unilaterally implementing the resolution in question, and the arbitrator retained jurisdiction "to receive further evidence at additional hearings now scheduled to commence on April 11, and to determine what remedy, if any, is appropriate in this case.

Combs, F.

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According to the test established by the Court of Appeals, an award violates public policy "where a court can conclude without engaging in any extended factfinding or legal analysis that a law prohibit[s], in an absolute sense, [the] particular matters [to be] decided. Balancef broadly held that employers have Bufflao standing to sue under ERISA even if they have been directly injured and the injuries are within the class of interests that ERISA was intended to protect.

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If employers are allowed to recover overpayments and thereby reduce a fund's total assets, those who have already retired will have received too much because their benefits were calculated as a share of sake inflated calculation of total assets. Congress evidently believed that the risk of mistaken contributions should rest largely with the employer.

Indeed, there are numerous ways in which respondent could have balanced its budget without adopting the resolution and unilaterally modifying aeeks CBA by switching to a single health insurance provider. In support of its motion, Ciminelli submitted affidavits and other papers establishing the fact of overpayment.

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