Is a lease between a multiemployer apprenticeship fund and its union sponsor an eligible transaction under VFCP?

I represent a multiemployer apprenticeship fund which leases office space from its building to a union appointing trustees to the fund. From my reading of the 2025 VFCP, it does not appear that the leasing of office space between the union and the fund is eligible for correction under VFCP. Does anyone think differently on this?

Before considering whether a breach is VFCP-correctable:

Has each fiduciary who might consider a correction consider his or her lawyer’s advice about whether a transaction might, despite the conflicts of interests, be an exempt prohibited transaction? For example:

Class Exemption From Prohibitions Respecting Certain Transactions in Which Multiemployer and Multiple Employer Plans Are Involved, 42 Federal Register 33918 (July 1, 1977).

Class Exemptions From Prohibitions Respecting Certain Transactions in Which Multiemployer and Multiple Employer Plans Are Involved, 41 Federal Register 12740 (Mar. 26, 1976), corrected,41 Federal Register 16620 (Apr. 20, 1976).

Even if an arrangement was and is an exempt prohibited transaction, have the current fiduciaries evaluation the arrangement was or is a breach of fiduciary responsibility?

A prohibited-transaction exemption does not excuse any fiduciary from any responsibility (other than one’s duty not to cause or permit the plan to be involved in a nonexempt prohibited transaction).

This is not advice to anyone.

PTE 1977-10.pdf PTE 1976-1.pdf PTE 1976-1 correction.pdf

Does the multiemployer employee-benefit fund own the building?

Or does the multiemployer employee-benefit fund sublease a portion of its tenancy to the union?

What steps did the employee-benefit trustees use to assure that the fund gets no less than fair-market rent (and, if a sublease, no less than the rent the fund owes its landlord)?

What steps did the employee-benefit trustees use to assure that the union uses no more space than it pays for?

What steps did the employee-benefit trustees use for fair dealing and fair terms for everything else about the lease or sublease?

If either party relies on a prohibited-transaction exemption, what records did it make to show how the exemption’s conditions were met and are met?

Have the fiduciaries kept all records the exemption requires? Has the union kept all records the exemption requires?

Even if not relying on an exemption, have the fiduciaries kept records to prove obedient, loyal, prudent, and impartial conduct?

This is not advice to anyone.