On appeal from Superior Court, Law Division, Hudson County.
Seidman, Antell and Lane. The opinion of the court was delivered by Seidman, P.J.A.D.
[177 NJSuper Page 145] Defendants appeal from a judgment in the total amount of $12,369.40 entered in favor of plaintiff after a jury trial. The litigation involves a claim by The Trucking Employees of North Jersey Welfare Fund, Inc. (pension plan) that defendants Joseph Vrablick and Theodore Lazar had knowingly misrepresented themselves to be employees of defendant L & V Trucking, Inc., (L & V) entitled upon retirement to pension benefits under the plan administered by plaintiff. The jury award was for benefits paid to them in the respective amounts of $5,528 and $6,841.40.
The principal issue is whether the individual defendants were covered under a pension plan for trucking employees established under a contract entitled "National Master Freight Agreement Covering Over-The-Road and Local Cartage Employees of Private, Common, Contract and Local Cartage Carriers," between the associated employees engaged in that business and the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (commonly known as the Teamsters Union). It is not in dispute that L & V is an employer bound by the nationwide agreement and also by a supplemental one applicable to a group of local unions in the New Jersey-New York area. If defendants are found not to have been covered employees under the pension plan, then the further issues to be resolved are the correctness of the jury's determination that defendants were guilty of willful misrepresentation and the trial judge's rejection of their defense of estoppel.
Joseph Vrablick and Theodore Lazar are brothers-in-law who entered the trucking business in 1944 with one truck. Their operation at that time and up to the present consisted primarily of trucking for the textile industry. To enable them to haul freight, they were required to join the Teamsters Union. They incorporated as L & V Trucking, Inc. in 1946, each owning 49% of the stock, with the remaining 2% divided equally between their wives. Vrablick and Lazar and their spouses have always been the sole officers and directors of the company. Although the business expanded over the years to the point where the company employed approximately 30 drivers, the two men continued to drive trucks, picking up freight and making deliveries generally in the New York area.
The pension plan here involved was created in the early 1960's. Since its inception, L & V has made the compulsory employer contributions to the plan on behalf of its covered employees as required by the union contract. The employees do not contribute to the fund. Vrablick and Lazar listed themselves as trucking employees in the weekly reporting forms until
their retirement applications were filed. Prior to 1969, the weekly reports merely listed the employees for whom contributions were made for that week and the total amount of hours worked by each. Commencing in 1969 the employer was required to certify on the report "that each and every person whose name is set forth above and for whom contributions are being made is an employee of this Employer covered by a written collective bargaining agreement . . . ." After 1975, by which time defendants were already receiving pension benefits, there was an additional certification that none of the listed employees was "an owner or part owner of this company or employed as a supervisor in any managerial capacity."
Vrablick's application for a retirement pension was filed in August 1971 and approved in November of that year. His benefits were to be $300 per month for five years and $275 per month thereafter. Lazar's application, filed in January 1972, was approved the following month. He was to receive $375 per month for five years after which the benefits would be reduced to $275 per month. It is to be noted that the compensation of each had been upwards of $36,000 per year, without separate amounts being allocated for their services in driving a truck. They were paid essentially the same amounts after their "retirement," and they continued actively to run the business in all other respects.
In May 1975 the pension plan's counsel advised the trustees that it had come to their attention that Vrablick and Lazar were owners of L & V and, therefore, it was questionable whether they were "covered employees" eligible to receive pension benefits. In due course this lawsuit was instituted to collect from defendants the pension payments which had been made to them over and above the employer contributions on their behalf.
We consider first whether Vrablick and Lazar were "covered employees" entitled to participate in the pension plan. At the close of the proofs, the trial judge in charging the jury submitted special interrogatories, reserving to himself for later
determination the equitable defenses raised by defendants. On the issue of covered employment the interrogatory with respect to each of the individual defendants, which the jury answered in the negative, was whether he was "a person employed in the bargaining unit ...