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NEW YORK STATE TEAMSTERS CONF. PENSION & RETIREMEN

December 30, 1982

NEW YORK STATE TEAMSTERS CONFERENCE PENSION AND RETIREMENT FUND, 7 Rutger Park, Utica, New York, Plaintiff,
v.
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

MEMORANDUM-DECISION and ORDER

 MINER, District Judge.

 I

 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"

 II

 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 ...

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