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December 30, 1982

John HOH, Enea Borra, George Pfleiderer, George L. Walsh, Edward Siegmann, Jerome Tierman, Elmer B. Sidden, Valentine J. Frank, Frank J. Fink, David M. Conroy, Francis J. Larkin, Individually and as Trustees of the Brewery Workers Pension Fund, Dominick Accetta, Kenneth D. Carroll, Daniel Greenhut, Individually and as officers of Brewery Workers Local Union No. 46, International Brotherhood of Teamsters, Pepsico, Inc. and F & M Schaefer Brewing Co., Defendants; and John HOH, Dominick Accetta, Daniel Greenhut, and Kenneth Carroll, Counterclaim Plaintiffs, v. AL SGAGLIONE, Individually and as Executive Administrator of the New York State Teamsters Conference Pension and Retirement Fund, Josephine Dontino, as Assistant Administrator of the New York State Teamsters Conference Pension and Retirement Fund, Rocco F. Deperno, Irving Wisch, T. Edward Nolan, Victor Mousseau, Paul E. Bush, Kepler Vincent, and Jack Canzoneri, Individually and as trustees of the New York State Teamsters Conference Pension and Retirement Fund, Counterclaim Defendants

The opinion of the court was delivered by: MINER


 MINER, District Judge.


 In a memorandum-decision and order dated August 13, 1982, 554 F. Supp. 519, this Court granted defendants' (counterclaim plaintiffs') motion for summary judgment on the claim and stayed a ruling on their motion for summary judgment on the counterclaims, noting that allegations of violations of certain provisions of ERISA, alleged to be violated by counterclaim defendants, were pending in a class action brought in the United States District Court for the Eastern District of New York. Brewery Delivery Employees Local Union No. 46, IBT v. Mosley, 80-1476 (I.G.) (E.D. N.Y.). By letter dated October 20, 1982, counterclaim defendants requested that the Court rescind the stay of the counterclaims applicable to defendant Hoh. In open court on November 12, 1982, pursuant to counterclaim plaintiffs' Rule 60(b) motion for relief from the August 13, 1982 order deferring ruling on the counterclaims, and pursuant to counterclaim defendants' request, this Court agreed to rule on the Hoh counterclaims, it appearing that the Eastern District action would not resolve the issues raised by those counterclaims. *fn1" Before this Court, then, is counterclaim plaintiffs' motion for summary judgment pursuant to Fed.R.Civ.P. 56 on the counterclaims concerning the legality, under the Labor Management Relations Act ("LMRA") and the Employee Retirement Income Security Act ("ERISA"), of the Teamsters Fund's suspension of Mr. Hoh's benefits under the fund's reemployment rule. *fn2"


 John Hoh presently is a retired participant in the New York State Teamsters Conference Pension and Retirement Fund ("Teamsters Fund"). He originally applied for his pension in November, 1976 and began receiving pension benefits effective January 1, 1977 from the Brewery Workers Pension Fund ("Brewery Fund").

 Prior to its merger with the Teamsters Fund, Mr. Hoh was a member of the Brewery Fund and served as one of its trustees from 1950 until his resignation, which became effective on December 1, 1976, the date the merger was adjudged complete by the New York State Supreme Court. *fn3" Mr. Hoh also was president of Brewery Workers Local Union No. 3, I.B.T. ("Local 3") from its creation in 1963 (through the merger of seven teamsters locals) until its dissolution in 1976. Prior thereto, Hoh was an officer of Local 69, one of the Brewery Workers locals that merged in 1963 to form Local 3. Before Hoh became a union officer, he was employed by Piels Brothers, Inc. Brewery and Rheingold Breweries, Inc. *fn4" It is uncontroverted that, at the time Hoh retired, his right to the benefits under the Brewery Plan had become vested.

 Section 4(7) of the Brewery Plan, in effect at the time John Hoh retired, provided that if a pensioner entered the service of a participating company, his pension would terminate and resume when the pensioner ceased to work for the participating company. Section 4(7) of the Brewery Plan was the only restriction placed on a pensioner's right to be employed after retirement.

 Under the Merger Agreement, participants in the Brewery Fund were allowed to elect whether to receive benefits under the Brewery Plan or the Teamsters Plan. Moreover, pursuant to that agreement, a Brewery Fund member's election of rights was to be made upon receipt of a notice from the Teamsters Fund, describing the right of election.

 Although the merger took place in 1976, it was not until June, 1979 that the Teamsters Fund sent notices to former Brewery Fund members, including John Hoh, setting forth their options and rights of election under the Merger Agreement. *fn5" Included with the notices to Brewery Fund members was a summary of the important provisions of both plans, and an "Interpretation" of each plan. Included in the "Interpretation of the Teamsters Plan" was a provision concerning employment after retirement:


No one may draw a pension benefit for any month in which he is employed for one or more days by a contributing employer. If you decide that you want to return to work for a contributing employer, your pension payments will cease during the period of your re-employment. However, you are free to work in another industry and still receive your monthly pension benefits.

 (Interpretation of the Teamster Plan, p. 4; Affidavit of John Hoh, Ex. G). Allegedly after reviewing the "Interpretation," Mr. Hoh exercised his right of election and chose to receive benefits pursuant to the Teamsters Plan.

 The Teamsters Plan in effect at the time Hoh exercised his election included an amendment, effective January 1, 1976, containing the following terms in regard to reemployment of a pensioner:


Any Pensioner who becomes re-employed by a Contributing Employer, as herein defined, shall not be entitled to a pension benefit for any month during any part of which he is so re-employed. Upon subsequent retirement under the Plan, he shall again be entitled to receive a pension in the same amount as his original pension, except in the case of a Disability Award Pensioner as herein set forth in paragraph 2 of this subsection B.

 (1976 Teamsters Plan, Section V.B(1); Affidavit of John Hoh, Ex. H). However, on October 20, 1980, the Teamsters trustees passed a new rule, which is the center of the controversy at bar, regarding reemployment of pensioners. The 1980 amendment prohibits reemployment by pensioners as follows:


Whenever a New York State Teamsters Conference Pension and Retirement Fund retiree goes to work in the same industry, trade or craft and same geographic area or works for a contributing employer in any capacity or for a former contributing employer in any capacity, [sic] will not be entitled to any pension for any month he becomes re-employed.

 (Affidavit of John Hoh, Ex. I). Notification of the 1980 reemployment amendment was first given to Teamsters Fund participants by a letter dated on or about February 9, 1981.

 By letter dated June 23, 1981 to John Hoh, counterclaim defendants and Teamsters Fund Executive Administrator Al Sgaglione inquired as to Mr. Hoh's current employment status. In response, by letter dated June 18, 1981, Mr. Hoh stated that he was employed as a General Organizer of the International Brotherhood of Teamsters ("I.B.T."), located at 25 Louisiana Avenue, Washington, D.C. and had been so employed for the total period of his retirement. In a letter dated July 13, 1981, the Teamsters Fund informed Mr. Hoh that his benefits were being suspended for alleged violations of the 1980 reemployment rule, and, in fact, Hoh's benefits were suspended commencing July 1, 1981. (Affidavit of John Hoh, Ex. K). Mr. Hoh has not received benefit payments since that time.

 Mr. Hoh alleges that the 1980 reemployment amendment is inapplicable to his retirement since he never consented to the new rule. Moreover, Hoh maintains that even if the 1980 amendment were applicable, it does not prohibit his present employment as a general organizer in the International Brotherhood of Teamsters. *fn6" Therefore, Hoh claims, the suspension of his benefits is a violation of the LMRA and ERISA.

 The Teamsters Fund conversely argues that the suspension here is valid since the suspension for violation of the 1980 reemployment rule was not retroactively applied to Mr. Hoh. That is, it is the position of the Teamsters Fund that none of the benefits paid to Hoh was suspended prior to the passage of the rule by the Teamsters Fund Trustees. ERISA, it is alleged, became effective with relation to such suspensions at the time of ERISA's effective date of January 1, 1975. From that point until the passage of the rule by the trustees, there was no interference with Hoh's pension. However, the Teamsters Fund contends, upon passage of the 1980 reemployment rule, Hoh's pension was subject to suspension. In other words, the 1980 reemployment rule's application to Hoh is valid since the rule was designed to conform to § 203(a)(3)(B) of ERISA, 29 U.S.C. § 1053(a)(3)(B). *fn7"


 It is well established that the decisions of those empowered with the administration of an employee pension trust shall be sustained unless arbitrary or capricious or contrary to law. Riley v. MEBA Pension Trust, 570 F.2d 406, 412 (2d Cir.1977). This is especially true where, as here, the trust instrument confers broad power on the administrators to determine eligibility for benefits under the plan. Id. at 410.

 In determining whether amendments are arbitrary and capricious when applied to a particular participant, the Second Circuit has set forth a number of factors to be considered:


the extent to which the participant was an intended beneficiary of the plan, the extent to which the amendment is applied retroactively to strip the participant of previously earned credits, the extent to which he was notified of the amendment, and the extent to which it is shown that actuarial concerns require denial of benefits to him.

 Agro v. Joint Plumbing Industry Bd., 623 F.2d 207, 210 (2d Cir.1980).

 In Argo and in the companion case of Valle v. Joint Plumbing Industry Board, 623 F.2d 196 (2d Cir.1980), the court held that application of the amended requirements to the participants in those cases was arbitrary and capricious, since the participants were all intended beneficiaries under the plan, they had been deprived retroactively of rights under the plan, and they had received insufficient notice by which they could have protected themselves from the impact of the plan amendments. Recognizing that, as here, the amendment was not inherently arbitrary or unreasonable per se, the Second Circuit in Valle nevertheless held, "the flexibility allowed to pension fund trustees is limited by principles of fundamental fairness. However reasonable the rules may be on their face, trustees cannot be allowed to apply them in an arbitrary and capricious manner to deny benefits." 623 F.2d at 203. *fn8"

 Here, despite the Teamsters Fund's protestation to the contrary, Hoh is an intended beneficiary of the Fund. *fn9" It is also clear that the Teamsters Fund trustees are retroactively applying the 1980 reemployment amendment, since Hoh had retired and was collecting benefits pursuant to previously existing rights under the Brewery Fund and, after Hoh's election pursuant to the Merger Agreement, under the Teamsters Fund. *fn10" Moreover, adequate notice here is wholly missing since, to be effective, notification of rule changes, necessary to allow the employee to satisfy eligibility requirements, must be made prior to retirement. See Argo v. Joint Plumbing Industry Bd., supra, 623 F.2d at 211 n. 6. Therefore, although the 1980 reemployment amendment is not per se unreasonable, application of the amendment here to Mr. Hoh in order to retroactively divest him of earned benefits, especially absent a showing of actuarial concerns justifying such divestments, is arbitrary and capricious under Argo and Valle and, therefore, constitutes a breach of fiduciary duty under ERISA. *fn11"

 Moreover, even if the 1980 reemployment amendment is not considered retroactive and, therefore, could be applied to Hoh, the Teamsters Fund breached its fiduciary duties by suspending Hoh's benefits because both the determination that he violated the rule and the manner in which the benefits were suspended were arbitrary and capricious. Section 203(a)(3)(B)(ii) of ERISA, 29 U.S.C. § 1053(a)(3)(B)(ii), permits multiemployer plans to suspend benefits to a participant who becomes reemployed, "in the same industry, in the same trade or craft, and the same geographic area covered by the plan, as when benefits commenced." When John Hoh's benefits commenced, he was covered by the Brewery Plan. Accordingly, to conform with Section 203 of ERISA, his current employment must be compared with the industry, trade and craft, and geographic area covered by the Brewery Plan. *fn12"

 The employers under the Brewery Plan were engaged in brewing and distributing beer. Regulations under Section 203 provide that industry "means the business activities of the types engaged in by any employers maintaining the plan." 29 C.F.R. § 2530.203-3. Hoh's current employer, the International Brotherhood of Teamsters, is not involved in the brewing or distribution of beer. Moreover, at no time during the existence of the Brewery Fund was the IBT ever a contributing employer to that fund. *fn13" Similarly, the IBT is not involved in the same trade or craft as in the brewery industry, and Hoh is not employed in the same geographic area covered by the Brewery Plan. *fn14" Since the requirements under § 203(a)(3)(B)(ii) are conjunctive, and absence of any one factor precludes a violation of this section, employment by Hoh with the IBT is valid under the Brewery Plan, and because the IBT is not a contributing employer, valid even under the Teamsters Fund Plan. Therefore, denial of benefits to Hoh under this section is arbitrary and capricious.

 Indeed, the very manner in which Hoh's benefits were terminated constituted a breach of the Teamsters Fund's fiduciary duties. The regulations under Section 203 provide in relevant part:


No payment shall be withheld by a plan pursuant to this section unless the plan notifies the employee by personal delivery or first class mail during the first calendar month or payroll period in which the plan withholds payments that his benefits are suspended. Such notification shall contain a description of the specific reasons why benefit payments are being suspended, a general description of the plan provisions relating to the suspension of payments, a copy of such provisions, and a statement to the effect that applicable Department of Labor regulations may be found in § 2530.203-3 of the Code of Federal Regulations. In addition, the suspension notification shall inform the employee of the plan's procedure for affording a review of the suspension of benefits. Requests for such reviews may be considered in accordance with the claims procedure adopted by the plan pursuant to section 503 of the Act and applicable regulations. . . .

 29 C.F.R. § 2530.203-3(b)(4).

 Even a cursory reading of the July 13, 1981 suspension letter demonstrates that it was woefully defective. It did not provide "specific reasons why benefit payments are being suspended," nor did it provide a copy of the rule or a reference to where the appropriate federal regulation could be found. Moreover, the letter contained no mention "of the plan's procedure for affording a review of the suspension of benefits." Letter of July 13, 1981 from Al Sgaglione, Executive Administrator of the Teamsters Fund to John Hoh. (Affidavit of John Hoh, Ex. K).

 Moreover, by letter dated July 23, 1981, Hoh stated that he wished to appeal the determination of suspension and requested a hearing before the Board of Trustees. (Affidavit of John Hoh, Ex. L). It is clear that a pensioner has a right to appeal:


In accordance with regulations of the Secretary every employee benefit plan shall --


(2) afford a reasonable opportunity to any participant whose claim for benefits has been denied for a full and fair review by the appropriate named fiduciary of the decision denying the claim.

 Section 503 of ERISA, 29 U.S.C. § 1133. See 29 C.F.R. § 2650.503.

 Here, it is uncontroverted that the Teamsters Fund failed to provide Hoh access to a review procedure as required under Section 503. *fn15" Therefore, the Teamsters Fund suspension of John Hoh's benefits infringed statutory due process and constituted a breach of fiduciary duty under ERISA. See Richardson v. Central States, Southeast and Southwest Areas Pension Fund, 645 F.2d 660, 664-5 (8th Cir.1981); Wardle v. Central States, Southeast and Southwest Areas Pension Fund, 627 F.2d 820, 828 n. 7 (7th Cir.1980). *fn16" Suspension here, no matter how one approaches it, is inappropriate.


 Accordingly, counterclaim plaintiffs' motion for summary judgment on the Hoh counterclaims is granted in all respects. Fed.R.Civ.P. 56(c).

 It is so Ordered.

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