# Appendix — Buczynski v. General Motors Corp. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0215%3A02 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1980 - **Citation:** 449 U.S. 950 ## Text ] No. 80-193 | LN ) oe ae ————————K IN THE | Supreme Court of the Wnitrd States Ocroser Tern, 1980 HENRY BUCZYNSKI, ALEX BORUSOVIC and OTHER RETIREES SIMILARLY SITCATED, Petitioners chho , vs. THE GENERAL MOTORS CORPORATION, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Third Circuit JOINT APPENDIX MARC C. GETTIS, LAURENCE REICH, 325 Westfield Avenue, East, 744 Broad Street, Roselle Park New Jerscy 07204, Newark, New Jersey 07102, (201) 245-8100 (201) 622-7711 Counsel for Petitioners. Counsel for Respondent, WEINER, STAUBACH, EDELSON CARPENTER, BENNETT & MORRISSEY, & HOPMAYER, “Itturncys for Respondent, Attorneys for Petitioners. : OTIS M. SMITH, WILLIAM R. CAROSELLI, General Counsel, McARDLE, CAROSELLI, SPAGNOLLI EUGENE L. HARTWIG, & BEACHLER, DAVID M. DAVIS, 1100 Law & Finance Building, General Motors Corporation, Pittsburgh, Pennsylvania 15219, 3044 West Grand Boulevard, Uf Counsel, Detroit, Michigan 48202, Of Counsel, — —— Petition For Certionant Firep Avovust 8, 1980 Certionarni Grantep Novemper 8, 1980 INDEX PAGE Docket Entries ibashdadeh acshcbaatdedlasi la ING eciccectnshcenssriitthens onciielgpanaiialiadadaigieelaio 8a Petition for Removal ................-.-- a? 18a pM Ragen a ON We Sore Rae LAN WET OL ROE ETE 21a Stipulation dated December 5, 1977 ............ccccccccceceeeeeeee 27a Memorandum Opinion dated February 17, 1978 ....... 32a Pretrial Order dated April 18, 1978 02... cecessssseseee 42a Stipulation, dated May 9, 1978 .......-.....cscscssscsscsesescsceceee 49a Order Certifying Class Action, dated August 9, 1978 52a Memorandum Opinion, dated August 24, 1978 .0000...... 54a Opinion, dated December 20, 1978 .............. eats = te Order, dated December 20, 1978 ........0....--... . 80a Letter Opinion, dated March 28, 1979 woo. 8la Cron, Gamed Winrehe SB, TOTO acne 83a Order, dated April 4, 1979.00.02... ... 80a Amended Order, dated April 5, 1979 .o.ccccccceecceeeeee S6a Notice of Appeal, dated April 12, 1979 . : 88a Opinion of the United States Court of Appeals for the Third Cireuit dated February 15, 1980 200000... 89a Judgment, dated February 15, 1980 119a Certified Judgment in Lieu of Mandate, dated March 27, 1980 12la Order Granting Writ of Certiorari ....... 122a Date 8/10/77 8/10/77 8/10/77 8/15/77 8/15/77 9/ 1/77 9/ 8/77 9/ 8/77 9/14/77 9/14/77 JOINT APPENDIX Docket Entries Proceedings Petition for removal from Superior Court of Union County with copies of Complaint and order to show cause re preliminary injunction filed 8-9-77. Removal Bond, filed 8-9-77. Notice of Allocation and Assignment filed. (New- ark-Lacey ) - Hearing on plaintiffs’ application for a tem- porary restraining order. Ordered hearing con- tinued to September 12, 1977. (Lacey) (8-11-77) Plaintiffs’ notice of motion for a temporary restraining order returnable August 11, 1977, filed 8-11-77. (No brief) Stipulation and order extending time of defend- ant to answer complaint to 9-13-77, filed 8-31-77. (Lacey) Notice mailed. Affidavit of Virginia Triano, filed 9-7-77. Affidavit of Walter Meissner, filed 9-7-77. Hearing on plaintiffs’ application for a tem- porary restraining order, Decision RESERVED. (Lacey) (9-12-77) Hearing on application of State of N.J. for leave to intervene as defendant. Ordered hearing con- tinued to a date to be fixed. (Lacey) (9-12-77) [1a] Date 9/14/77 10/ 6/77 10/11/77 10/18/77 11/16/77 12/ 9/77 1/9/78 2/27/78 2/27/78 3/ 9/78 3/ 9/78 3/ 9/78 2a Docket Entries Proceedings Answer, filed 9-13-77. Evipentiary Hearine on plaintiff’s application for a preliminary injunction. Decision RESERVED. (Lacey) (10-5-77) Transcript of hearing held August 11, 1977, filed. Plaintiffs’ notice of motion to certify this action as a class action returnable November 14, 1977, proof of service filed. (Brief submitted) At call for hearing on motion of plaintiffs to certify this action as a class action, Court indi- cated motion consented to. (Lacey) (11-14-77) Stipulation, setting forth applicability of pen- sions plan re retired employees, filed 12-7-77. Transcript of hearing held 10-5-77 filed 1-6-78. Memorandum opinion, filed 2-21-78. (Lacey) (denying plaintiffs motion for preliminary in- junction ) Order denying plaintiffs motion for preliminary injunction, filed 2-21-78. (Lacey) Notice mailed. Hearing on plaintiff’s motion for class action certification. Ordered motion granted. Order to be submitted. (Lacey) (3-6-78) Ordered pre-trial conference set for April 10, 1978 before Judge Hunt. (Lacey) (3-6-78) Ordered trial date set for May 1, 1978. Order to be submitted. (Lacey) (3-6-78) Date 4/19/78 4/21/78 4/28/78 5/11/78 5/17/78 5/25/78 5/25/78 5/30/78 8/10/78 8/25/78 3a Docket Entries Proceedings Status Conference. (Lacey) (4-14-78) Ordered trial date set for 5-15-78. Pre-trial order, filed 4-19-78. (Hunt) (Directing that State of N.J. may intervene as a party de- fendant and acknowledging Judge Lacey’s order to certify this action as class action.) Pre-Trial Conference. (Hunt) (4-13-78) Stipulation re Exhibits A, B, and C are desig- nated as Joint Exhibits of Pensions Plans; joint Exhibits D and E are true copies of Section 2 of Article IV of the 1958 and 1961 Pension Plans, filed 5-10-78. Evipentiary Heartne on plaintiffs’ application for a permanent injunction. Decision RESERVED. (Lacey) (5-15-78) | Transcript of hearing held March 6, 1978, filed 5-24-78. Transcript of hearing held May 15, 1978, filed 5-24-78. Acknowledgment of service of copy of complaint by the U.S. Department 01 Labor, Washington, D.C., filed 5-26-78. Order certifying Class Action, ete., filed 8-9-78. (Lacey) Notice mailed. Memorandum Opinion, filed 8-24-78. (Lacev) (Granting plaintiff’s application for a permanent injunction, ete.) Date 9/18/78 9/27/78 10 /2/78 11/ 2/78 12/13/78 12/21/78 12/21/78 1/10/79 1/12/79 1/26/79 4a Docket Entries Proceedings Hearing on defendant’s application to settle the form of the order. Ordered hearing continued to October 29, 1978. (Lacey) (9-15-78) Transcript of hearing held September 15, 1978, filed 9-26-78. Defendant’s notice of motion for reconsidera- tion of Memorandum Opinion of August 24, 1978 returnable October 30, 1978, proof of service filed 9-29-78. (Brief submitted) Transcript of hearing held September 12, 1977, filed. Hearing on defendant’s motion for reconsidera- tion of Memorandum Opinion of August 24, 1978. Ordered motion denied. (Lacey) (12-7-78). Opinion filed 12-20-78. (Lacey) (the previous decision is followed) Order directing the previous decision of the court embodied in opinion of August 24, 1978 is adhered to, filed 12-20-78. (Lacey) Notice mailed. Plaintiffs’ notice of motion for plaintiff’s coun- sel fees and costs of action be charged against defendant returnable Feb. 13, 1979 proof of serv- ice, filed 1-9-79. (Memorandum submitted) Substitution of attorney on behalf of plaintiff, filed 1-11-79. Defendant’s notice of motion to stay judgment pending appeal returnable Feb. 13, 1979, proof of service, filed 1-24-79. (Brief submitted) Date 1/29/79 1/29/79 1/29/79 1/29/79 1/31/79 2/ 8/79 2/ 8/79 2/ 8/79 2/20/79 2/20/79 2/20/79 3/21/79 3/30/79 da Docket Entries Proceedings Affidavit of Lester Weiner in support of plain- tiffs’ motion for counsel fees and costs, ete., filed. Affidavit of Lester Weiner of services and dis- bursements, filed. Affidavit of Mare C. Gettis for services ren- dered, filed. Affidavit of Joel B. Hopmayer for services ren- dered, filed. Transcript of hearing held December 7, 1978, filed 1-30-79. Affidavit of Richard Meyer filed. 2-6-79 Affidavit of Ray J. Wright filed. 2-6-79 Certificate of Service of affidavits filed. 2-6-79 Hearing on motion of plaintiffs’ for counsel fees and costs of action Decision Resrrvep. (Lacey) (2-13-79) Hearing on motion of defendant to stay judg- ment pending appeal. Decision Reservep (Lacey) (2-13-79) Continued hearing on defendant’s application to settle the form of the order. Decision Rrsrrven. (Lacey) (2-13-79) Transcript of hearing held February 13, 1979 filed, 3-20-79. Letter Opinion filed 3-29-79. (Lacey) (Denying Plaintiffs’ motion for attorneys’ fees and grant- ing defendant’s motion for stay Date 3/30/79 4/10/79 4/10/79 4/20/79 4/20/79 5/10/79 8/ 1/79 9/14/79 10/31/79 Ga Docket Entries Proceedings Order for permanent injunction in favor of Plaintiffs, Henry Buezynski, Alex Borusovie and other retirees similarly situated and against De- fendant, The General Motors Corporation with costs, and staying order during pendency of ap- peal, filed 3-29-79. (Lacey) Notice mailed. Order withdrawing order for permanent injunc- tion filed 3-29-79 filed 4-5-79. (Lacey) Notice Mailed. Order for permanent injunction in favor of plaintiffs, Henry Buezynski, Alex Borusovie and other retirees similarly situated and against de- fendant, The General Motors Corporation with costs, and staying order during pendency of ap- peal, filed 4-5-79. (Lacey) Notice Mailed. Notice of appeal of defendant filed 4-12-79 at 3:40 P.M. Copies of notice of appeal sent to U.S.C.A. and Weiner, Staubach, Edelson & Hopmayer, Esqs. Notice of motion of plaintiffs to tax costs ret. 5-10-79 and Bill of costs and disbursements, filed 5-9-79. Briefs of defendant-appellant and amicus filed with the Court of Appeals Briefs of plaintiffs-appellees and amicus filed with the Court of Appeals Reply Briefs of defendant-appellant and amicus filed with the Court of Appeals Date 1 /8/80 2/15/80 3/ 3/80 3/19/80 3/27/80 5/30/80 6/ 2/80 8/ 8/80 8/18/80 8/20/80 10/ 2/80 11/ 3/80 Ta Docket Entries Proceedings Argument of the case in the Court of Appeals Judgment of the Court of Appeals for the Third Cireuit entered; Opinion of the Court an- nounced Petition of plaintiffs-appellees for rehearing en banc filed with the Court of Appeals Petition for rehearing denied Judgment of the Court of Appeals certified in lieu of mandate Application by plaintiffs-petitioners for an ex- tension of time in which to file a Petition for a Writ of Certiorari filed Application granted by Order of Justice Bren- nan Petition for a Writ of Certiorari filed Application by defendant-respondent for an ex- tension of time in which to file a Brief in Opposi- tion filed Application granted Brief in Opposition filed Writ of Certiorari granted 8a Complaint Superior Court or New JERSEY Cuancery Division: Union County Crviz Action No. 77-1644 Henry Buozynsx1, ALEx Borusovic and Orner Retirees Srmmarty Sirvaren, Plaintiffs, Vs. THe GeneraL Motors Corporation, Defendant. > Plaintiffs, Henry Buezynski who resides at 144 Willow Avenue, in the Borough of Garwood, County of Union, State of New Jersey, and Alex Borusovie who resides at 96 Longfellow Street, in the Borough of Carteret, County of Middlesex, State of New Jersey for themselves and for all other retired members of the International Union, United Automobile Aerospace and Agricultural Implement Workers of America, similarly situated say: 1. Plaintiffs were hourly employees of the General Mo- tors Corporation with places of business located at 1300 Raritan Road, Clark, New Jersey; 1016 West Edgar Road, Linden, New Jersey and Parkway Avenue, Trenton, New Jersey. 9a Complaint 2. Plaintiffs were hired by the defendant, General Mo- tors Corporation as hourly rated production employees. 3. Plaintiffs became members of the International Union, United Automobile Aerospace and Agricultural Im- plement Workers of America. 4, The International Union, United Automobile Aero- space and Agricultural Imp!ement Workers of America is recognized by the defendant, General Motors Corporation, as the sole bargaining agent for all hourly rated produc- tion and maintenance employees of the New Departure Hyatt Bearings Plant at Clark, New Jersey, the Linden Assembly Plant in Linden, New Jersey, and the Fischer Body Plant in Trenton, New Jersey. 5. Plaintiff, Alex Borusovie worked continuously for the defendant, General Motors Corporation for a period of 22 years until March 31, 1973, at which time he retired. Plaintiff, Henry Buezynski worked continuously for the defendant, General Motors Corporation for a period of 34 years until January 1, 1972. All other unnamed plaintiffs on whose behalf this action is brought worked for the defendant, General Motors Cor- poration for a number of years and retired prior to the date of July 14, 1977. 6. The International Union, United Automobile Aero- space and Agricultural Implement Workers of America have had successive written Agreements covering the pen- sion plan for hourly rated production and maintenance employees of the International Union, United Automobile Aerospace and Agricultural Implement Workers of 10a Complaint America and all hourly rated production and maintenance employees who are members of the International Union, United Automobile Aerospace and Agricultural Implement Workers of America and are employees of the General Motors Corporation. The most recent Pension Agreement between the General Motors Corporation and the Inter- national Union, United Automobile Aerospace and Agri- cultural Implement Workers of America which was effec- tive December 13, 1976, as modified November 22, 1976, and is specifically designated as Exhibit A to Agreement between General Motors Corporation and U.A.W. This Agreement is still effective to this date. 7. The General Motors Corporation is responsible for the maintenance, management and performance of the Pen- sion Plan. 8. Plaintiffs completed and filed the written application and complied with all required provisions to receive pen- sion benefits. 9, All applications and requirements were complied with by the plaintiffs and accepted by the Division of the Gen- eral Motors Corporation. 10, Plaintiff, Henry Buezynski became eligible for bene- fits under the Pension Plan on January 1, 1972. Plaintiff, Alex Borusovie became eligible for benefits un- der the Pension Plan on March 31, 1973. All other plaintiffs in this action became eligible for benefits under the Pension Plan prior to July 14, 1977. 11. Article IV, Section 2 of the Supplemental Agree- ment covering the Pension Plan, more specifically Exhibit lla Complaint A to the Agreement between the General Motors Corpora- tion and Local 736 of International Union, United Auto- mobile Aerospace and Agricultural Implement Workers of America deals with deduction from the employees pension for Workers’ Compensation and reads as follows in whole: “In determining the monthly benefits payable un- der this Plan, a deduction shall be made unless pro- hibited by law, equivalent to all or any part of Workmen’s Compensation (including compromise or redemption settlements) payable to such employee by reason of any law cf the United States, or any political subdivision thereof, which has been or shall be enacted, provided that such deductions shall be to the extent that such Workmen’s Compensation has been provided by premiums, taxes or other pay- ments paid by or at the expense of the Corporation, except that no deduction shall be made for the fol- lowing: (a) Workmen’s Compensation payments specifi- cally allocated for hospitalization or medical ex- pense, fixed statutory payments for the loss of any bodily member, or 100% loss of use of any bodily member, or payments for loss of industrial vision. (b) Compromise or redemption settlements pay- able prior to the date monthly pension benefits first become payable. (ce) Workmen’s Compensation payments paid un- der a claim filed not later than two years after the breaking of seniority.” 12. Plaintiff, Henry Buezynski filed a Claim Petition for Workers’ Compensation Benefits on June 25, 1976. r% 12a Complaint Plaintiff, Alex Borusovic filed a Claim Petition for Workers’ Compensation Benefits on July 2, 1976. All other plaintiffs in this action filed Claim Petitions for Wokers’ Compensation Benefits prior to July 14, 1977. 13. Plaintiff, Henry Buczynski received a Judgment from his Workers’ Compensation Claim on April 7, 1977, entitling him to approximately $2,500.00 (a copy of the judgment is attached herewith). Plaintiff, Alex Borusovie received a Judgment from his Workers’ Compensation Claim on February 11, 1977, en- titling him to approximately $2,300.00 (a copy of the Judg- ment is attached herewith). All other plaintiffs in this action received Judgments from their respective Workers’ Compensation Claims en- titling them to various amounts of money for permanent disability. 14, On or about June 22, 1977, plaintiff Henry Buezyn- ski received an Authorization of Adjusted Monthly Bene- fits calling for an offset or deduction of his Pension Bene- fits from August 1, 1977, through January 1, 1978. (a copy of the Authorization of Adjusted Monthly Benefits is at- tached herewith). On or about June 22, 1977, plaintiff Alex Borusovie re- ceived an Authorization of Adjusted Monthly Benefits call- ing for an offset or deduction of his Pension Benefits from August 1, 1977, through January 1, 1978. (a copy of the Authorization of Adjusted Monthly Benefits is attached hereto). All other piaintiffs in this action have received Author- izations of Adjusted Monthly Benefits which indicate the 13a Complaint intent of the defendant to reduce the monthly pension bene- fit of the plaintiffs. 15. On July 14, 1977, an act concerning Workers’ Com- pensation and amending R.S. 34:15-29, specifically Assem- bly No. 1309 was signed into law by Governor Brendan Byrne (a copy is attached herewith). This law prohibits deduction from an individuals pension for the right of com- pensation granted by chapter 34 :15-29. 16. Defendani’s intention to reduce the pension benefits of plaintiffs Henry Buezynski and Alex Borusovie as well as all other plaintiffs similarly situated is unlawful and will interfere with the plaintiffs’ right to collect those monies which the plaintiffs are entitled to. 17. Defendant’s intent to reduce the pension benefits of plaintiffs, Henry Buezynski and Alex Borusovie as well as all other plaintiffs similarly situated will create an imme- diate financial hardship to the plaintiffs. 18. Defendant’s intent to reduce the pension benefits of the plaintiffs is unlawful and in violation of Assembly Bill No. 1309. 19. Plaintiffs are entitled to the privilege of receiving and enjoying those monies which they are entitled to un- der Article II, Section 5 of the Supplement Agreement covering the Pension Plan. Defendant will be depriving and preventing the plaintiffs from the use of those monies thereby do plaintiffs immediate substantial and irreparable harm. 20. The unlawful acts complained of herein will be con- tinued in the future as a means of coercion and duress unless the acts are restrained by this Court. y% lida Complaint 21. The.defendant, General Motors Corporation has and is at the present time advising plaintiffs with pending claims for Workers’ Compensation Benefits that their pen- sion benefits will be reduced when plaintiffs receive a judg- ment from their Workers’ Compensation Claims, 22. The character and extent of injury to the plaintiffs is such that damages cannot adequately compensate for the same and plaintiffs have no adequate remedy at law. 23. The unlawful acts of the defendant, General Motors Corporation showing intent to withhold and refusal to pay pension benefits to the plaintiffs is likely to continue unless restrained. 24. As to each item of relief requested and granted greater injury will be inflicted upon the plaintiffs by the denial thereof than will be inflicted upon the defendant by granting thereof. 25. Unless a temporary restraining order will be issued without further notice, immediate substantial and irrepar- able injury to the plaintiffs will be unavoidable. W seEREFoRE, plaintiffs demand: 1. That the defendant be temporarily and permanently enjoined and restrained as follows: (A) From withholding any pension monies to which the plaintiffs are entitled to receive. (B) Permanently enjoining the defendant from directly or indirectly fostering or causing the use or implementation 15a Complaint of Article IV, Section 2 of the Pension Plan now in exist- ence. (C) Permanently enjoining the defendant, General Mo- tors Corporation from directly or indirectly fostering or causing the use or implementation of a plan which results in the withholding of any pension monies to which the plaintiffs are entitled. (D) Permanently enjoining the defendant from threaten- ing or coercing plaintiffs in any manner with respect to plaintiffs pension being affected due to their pending Workers’ Compensation Claims. (Ef) Granting to the plaintiffs such other relief as may be just and equitable. (F) Awarding to plaintiffs costs of this action. Werner, Mrraseciur & GLENNON By: Marc C, Gertis Attorney for Plaintiffs léa Complaint [Official Copy Reprint] AssEMBLY, No. 1309 STATE OF NEW JERSEY Introduced January 19, 1976 By Assemblymen Jackman and Pellecchia Referred to Committee on Labor, Industry and Professions Aw Act concerning workmen’s compensation and amending R.S. 34:15-29, Br rr enacrep by the Senate and General Assembly of the State of New Jersey: 1. R.S. 34:15-29 is amended to read as follows: 34:15-29. The right of compensation granted by this chapter shall have the same preference against the assets of the employer as is now or may hereafter be allowed by law for a claim for unpaid wages for labor. Claims or pay- ments due under this chapter shall not be assignable, and shall be exempt from all claims of creditors and from levy, execution or attachment *[, and shall not be set off or de- duced from pension benefits or payments]* *The right of compensation granted by this chapter may be set off against disability pension benefits or payments but shall not be set off against employees’ retirement pension benefits or payments." 17a Complaint 2. This act shall take effect immediately. ExxpLanation—Matter enclosed in bold-faced brackets [thus] in the above bill is not enacted and is intended to be omitted in the law. Signed by Governor Byrne on Thursday, July 14, 1977. [Other Exhibits and Affidavits Omitted ] 18a Petition for Removal UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY Civil Action No. 77-1644 To THE JUDGES OF THE Untrep States District Court FOR THE District or New JERSEY: The Petition of General Motors Corporation, for removal of this action from the Superior Court of New Jersey, Chancery Division, Union County, to the United States Dis- trict Court for the District of New Jersey, respectfully shows to this Honorable Court: 1. That your Petitioner, General Motors Corporation, is the defendant in a civil action brought against it in the Chancery Division of the Superior Court of the State of New Jersey, Union County, entitled, “Henry Buezynski, Alex Borusovic and other retirees similarly situated, Plain- tiffs, vs. The General Motors Corporation, Defendant,” a copy of the complaint (and annexed Affidavits) and Order to Show Cause in which action are annexed hereto and made parts hereof as Exhibits A and B, respectively, the same constituting all the process, pleadings, and orders served upon your Petitioner in said action. 2. That the aforesaid action was commenced by the filing of said Complaint and Order to Show Cause on August 5, 1977, said Complaint and Order to Show Cause having been received by your Petitioner on August 9, 1977. 3. That your Petitioner was, at the time of the com- mencement of the aforesaid action, and now is, a cor- 19a Petition for Removal poration duly organized and existing under and by vir- tue of the laws of the State of Delaware, and an employer and the administrator of an employee pension benefit plan within the meaning of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1001 et seq., and was and is engaged in commerce within the meaning of Sec- tion 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C. §$185(a). 4. That the aforesaid action is a suit alleging a viola- tion of the rights of the plaintiffs under a contract be- tween an employee and a labor organization representing employees in an industry affecting commerce and an action by a participant or beneficiary of an employee pension benefit plan to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan, within the meaning of Section 502(a) of the Employee Retirement Income Security Act of 1974, 29 U.S.C, §1132(a), and a civil action of which the United States District Courts have original jurisdiction under and pursuant to the provisions of Section 301(a) of the Labor Management Relations Act, 1947, 29 U.S.C. §185(a), See- tion 502(e) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1182(e)(1), and 28 U.S.C. §1331, and a civil action which may be removed to this Court pursuant to the provisions of 28 U.S.C. $1441. 5. That your Petitioner files and presents herewith a bond, with good and sufficient surety, in the penal sum of Five Hundred Dollars ($500.00), conditioned, as required by 28 U.S.C. §1446(d), that Petitioner will pay all costs and disbursements incurred by reason of these removal proceedings should it be determined that this cause is not removable or is improperly removed. 20a Petition for Removal Wuererorr, your Petitioner prays that this cause pro- ceed in this Court as an action properly removed thereto. Carpenter, Bennett & Morrissey Attorneys for Defendant-Petitioner General Motors Corporation By Laurence Reicu A Member of the Firm Dated: August 9, 1977 2la Answer UNITED STATES DISTRICT COURT District or New JERSEY Civil Action No. 77-1644 Defendant, General Motors Corporation, by way of an- swer to the Complaint of the plaintiff herein, says that: 1. It admits that it has places of business at 1300 Rari- tan Road, Clark, New Jersey, 1016 West Edgar Road, and Parkway Avenue, Trenton, New Jersey, and that plaintiffs Henry Buezynski and Alex Borusovie were formerly hour- ly employees of defendant; except as so admitted, it neither admits nor denies the allegations of paragraph 1. 2. It admits the allegations of paragraph 2. 3. It has no knowledge or information sufficient to form a belief as to the truth of the allegations of para- graph 3, and, therefore, it neither admits nor denies the same. 4. It admits that the International Union, United Auto- mobile, Aerospace and Agricultural Implement Workers of America is recognized by it as the collective bargain- ing representative of all or substantially all of its hourly- rated production and maintenance employees at its New Departure—Hyatt Bearings Division plant at Clark, New Jersey, its GM Assembly Division plant at Linden, New Jersey, and its Fisher Body Division at Trenton, New Jersey; except as so admitted, it neither admits nor de- nies the allegations of paragraph 4. 5. It admits that plaintiff Alex Borusovie was employed by it on or about July 16, 1951, and retired from its em- 22a Answer ploy effective April 1, 1973, and that plaintiff Henry Buezynski was employed by it on October 10, 1938, and retired from its employ effective January 1, 1972; except as so admitted, it has no knowledge or information suf- ficient to form a belief as to the truth of the allegations of paragraph 5 and, therefore, it neither admits nor de- nies the same. 6. It admits that on or about November 19, 1973, it entered into a Supplemental Agreement Covering the Pen- sion Plan which is Exhibit A to an Agreement between it and the International Union, United Automobile, Aero- space and Agricultural Implement Workers of America, of the same date, which Supplemental Agreement, as modified November 22, 1976, is presently in effect, and that there were agreements between it and said Union prior thereto covering the same subject matter; except as so admitted, it neither admits nor denies the allegations of paragraph 6 and refers to said Supplemental Agree- ment for accuracy as to the contents thereof. 7. It neither admits nor denies the allegations of para- graph 7, and refers to the aforesaid Supplemental Agree- ment for accuracy as to the contents thereof. 8. It admits the allegations of paragraph 8 to the ex- tent that the same refer to plaintiffs Henry Buezynski and Alex Borusovie; except as so admitted, it neither admits nor denies the allegations thereof. 9. It admits the allegations of paragraph 9 to the ex- tent that the same refer to plaintiffs Henry Buezynski and Alex Borusovie; except as so admitted, it neither admits nor denies the allegations thereof. 23a Answer 10. It admits the allegations of paragraph 10 to the ex- tent that the same refer to plaintiffs Henry Buezynski and Alex Borusovic, except that plaintiff Alex Borusovie be- came eligible for benefits April 1, 1973; except as so ad- mitted, it neither admits nor denies the allegations there- of. 11. It admits that paragraph 11 sets forth the text of Section 2 of Article IV of the aforesaid Supplemental Agreement; except as so admitted, it neither admits nor denies the allegations of said paragraph 11 and refers to said Supplemental Agreement for accuracy as to the con- tents thereof. 12. It admits the allegations of paragraph 12 to the ex- tent that the same refer to plaintiffs Henry Buezynski and Alex Borusovic; except as so admitted, it neither admits nor denies the allegations thereof. 13. It admits the allegations of paragraph 13 to the ex- tent that the same refer to plaintiffs Henry Buezynski and Alex Borusovic; except as so admitted, it neither admits nor denies the allegations thereof. 14. It admits the allegations of paragraph 14 to the ex- tent that the same refer to plaintiffs Henry Buezynski and Alex Borusovie; except as so admitted, it neither admits nor denies the allegations thereof. 15. It admits that on July 14, 1977, Assembly Bill No. 1309 was signed by the Governor of the State of New Jer- sey and thereby became Chapter 156 of the Public Laws of the State of New Jersey of 1977 and that the copy of Assembly Bill No. 1309 annexed to the Complaint sets forth 24a Answer in substance the contents thereof; except as so admitted, it neither admits nor denies the allegations of paragraph 15 and refers to said Assembly Bill No. 1309 for accuracy as to the contents thereof. 16. 17. 18. 19. It denies the allegations of paragraph 16. It denies the allegations of paragraph 17. It denies the allegations of paragraph 18. It denies the allegations of paragraph 19. It denies the allegations of paragraph 20. . It denies the allegations of paragraph 21. It denies the allegations of paragraph 22. . It denies the allegations of paragraph 23. It denies the allegations of paragraph 24. . It denies the allegations of paragraph 25. First Separate Derense The Complaint fails to state a claim upon which relief may be granted by this Court. Seconp Separate DEFENSE Plaintiffs are barred and estopped by the action of their duly authorized collective bargaining representative in en- 25a Answer tering into the Supplemental Agreement Covering the Pen- sion Plan which is Exhibit A to the Agreement between General Motors Corporation and the International Union, United Automobile, Aerospace and Agricultural Imple- -ment Workers of America, dated November 19, 1973, as modified November 22, 1976, from contending herein that defendant may not make deductions conforming to the provisions of Section 2 of Article IV thereof. Turrp SEPARATE DEFENSE 1. The Supplemental Agreement Covering Pension Plan which is Exhibit A to the Agreement between General Mo- tors Corporation and the International Union, United Automobile Aerospace and Agricultural Implement Workers of America, dated November 19, 1973, as modi- fied November 22, 1976, is an employee benefit plan de- scribed in Section 4(a) of the Employee Retirement In- come Security Act of 1974 (hereinafter referred to as “ERISA”), 29 U.S.C. §1003(a), and not exempt under Sec- tion 4(b) of ERISA, 29 U.S.C. $1003(b). 2. By reason of the foregoing, the provisions of ERISA supersede the provisions of Section 34:15-29 of the Re- vised Statutes of the State of New Jersey, as amended by Chapter 156 of the Public Laws of the State of New Jer- sey of 1977. 3. By reason of the foregoing, plaintiffs are barred and estopped from asserting that any actions taken by defend- ant, General Motors Corporation, pursuant to the provi- sions of Section 2 of Article IV of said Supplemental Agreement, violates the provisions of Section 34:15-29 of the Revised Statutes of the State of New Jersey, as 26a Answer amended by Chapter 156 of the Public Laws of the State of New Jersey of 1977, or any other law of the State of New Jersey. FourtrH Separate DEFENSE 1. Defendant, General Motors Corporation, is an em- ployer engaged in commerce within the meaning of the provisions of the National Labor Relations Act of 1935, as amended, 29 U.S.C. $151 e¢ seq. 2. By reason thereof, the provisions of said Act pre- empt and supersede any state laws applicable to collective bargaining agreements negotiated between employers and the collective bargaining representatives of their em- ployees, including specifically, but not limtied to, Section 34:15-29 of the Revised Statutes of the State of New Jer- sey, as amended by Chapter 156 of the Public Laws of the State of New Jersey of 1977. 3. By reason of the foregoing, plaintiffs are barred and estopped from asserting that any actions taken by defend- ant, General Motors Corporation, pursuant to the provi- sions of Section 2 of Article IV of said Supplemental Agreement, violates the provisions of Section 34:15-29 of the Revised Statutes of the State of New Jersey, as amended by Chapter 156 of the Public Laws of the State of New Jersey of 1977, or any other law of the State of New Jersey. CarPenter, Bennetr & Morrissey Attorneys for Defendant By Laurence Reicx A Member of the Firm Dated: September 13, 1977 S 27a Stipulation dated December 5, 1977 UNITED STATES DISTRICT COURT District or New JERSEY Civil Action No. 77-1644 Ir 1s, on this 5th day of December, 1977, Stipulated and Agreed, by and between the undersigned counsel for plain- tiffs and defendant in the above-entitled action, as follows: 1. Article TV, Section 2, of the General Motors Hourly- Rate Employes Pension Plan (hereinafter referred to as the “Pension Plan”) as set forth in Exhibit A-1 to the Agreement between General Motors Corporation and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, dated No- vember 19, 1973, as modified November 22, 1976, is the same provision as that contained in Article IV, Section 2, of the predecessor Pension Plans constituting Exhibit A-1 to the Agreements between said parties, dated November 19, 1973, and November 11, 1970, except that the 1970 ver- sion thereof included the words “to an employee who re- tires with benefits payable for months commencing on or after April 1, 1971,” following the word “Plan.” True copies of Article IV, Section 2, as it appeared in the 1970, 1973, and 1976 versions of the Pension Plan are annexed hereto and made part hereof-as Exhibits A, B, and C, respectively. 2. The application of Article TV, Section 2, of the Pen- sion Plan to a particular retired employee is determined by the effective date of his retirement. Any employee who retired with benefits for months commencing on or after April 1, 1971 would be subject to the provisions of Article 7% 28a Stipulation, dated December 5, 1977 IV, Section 2, as constituted in the 1970, 1973, and 1976 versions of the Pension Plan. Lester WEINER Attorney for Plaintiffs CaRPENTER, Bennett & Morrissey Attorneys for Defendant By: Laurence Reicu A Member of the Firm Exuisit A Art. IV, 1(b) therein, shall be considered as benefits for age or disability under the Federal Social Security Act for the purposes of the Plan. (c) If an employe is eligible for a Federal Social Security benefit for disability or an unreduced Federal Social Se- curity benefit for age at the time of retirement or thereafter, such employee shall provide the Corporation with evidence of the effective date of entitlement to such”benefit. Section 2. Deductions for Workmen’s Compensation In determining the monthly benefits payable under this Plan to an employe who retires with benefits payable for months commencing on or after April 1, 197 1, a deduction shall be made unless prohibited by law, equivalent to all or any part of Workmen’s Compensation (including compro- mise or redemption settlements) payable to such employe 29a Stipulation, dated December 5, 1977 by reason of any law of the United States, or any political subdivision thereof, which has been or shall be enacted, provided that such deductions shall be to the extent that such Workmen’s Compensation has been provided by pre- miums, taxes or other payments paid by or at the expense of the Corporation, except that no deduction shall be made for the following: (a) Workmen’s Compensation payments specifically allo- cated for hospitalization or medical expense, fixed statutory payments for the loss of any bodily member, or 100% loss of use of any bodily member, or payments for loss of in- dustrial vision. (b) Compromise or redemption settlements payable prior to the date monthly pension benefits first become payable. (c) Workmen’s Compensation payments paid under a claim filed not later than two years after the breaking of seniority. Exuisit B Art. IV, 1(¢) retirement or thereafter, such employe shall provide the Corporation with evidence of the effective date of entitle- ment to such benefit. Section 2. Deductions for Workmen’s Compensation In determining the monthly benefits payable under this Plan, a deduction shall be made unless prohibited by law, 30a Stipulation, dated December 5, 1977 equivalent to all or any part of Workmen’s Compensation (including compromise or redemption settlements) payable to such employe by reason of any law of the United States, or any political subdivision thereof, which has been or shall be enacted, provided that such deductions shall be to the extent that such Workmen’s Compensation has been pro- vided by premiums, taxes or other payments paid by or at the expense of the Corporation, except that no deduction shall be made for the following: (a) Workmen’s Compensation payments specifically allo- cated for hospitalization or medical expense, fixed statutory payments for the loss of any bodily member, or 100% loss of use of any bodily member, or payments for loss of in- dustrial vision. (b) Compromise or redemption settlements payable prior to the date monthly pension benefits first become payable. (c) Workmen’s Compensation payments paid under a claim filed not later than two years after the breaking of seniority. Article V Financing Section 1. Trust Fund The Corporation shall execute a trust agreement with a trustee or trustees selected by the Corporation to sla Stipulation, dated December 5, 1977 Exursir C Art. IV, 1(¢) retirement or thereafter, such employee shall provide the Corporation with evidence of the effective date of entitle- ment to such benefit. Section 2. Deductions for Workmen’s Compensation In determining the monthly benefits payable under this Plan, a deduction shall be made unless prohibited by law, equivalent to all or any part of Workmen’s Compensation (including compromise or redemption settlements) payable to such employe by reason of any law of the United States, or any political subdivision thereof, which has been or shall be enacted, provided that such deductions shall be to the extent that such Workmen’s Compensation has been pro- vided by premiums, taxes or other payments paid by or at the expense of the Corporation, except that no deduction shall be made for the following: (a) Workmen’s Compensation payments specifically allo- cated for hospitalization or medical expense, fixed statutory payments for the loss of any bodily member, or 100% loss of use of any bodily member, or payments for loss of indus- trial vision, (b) Compromise or redemption settlements payable prior to the date monthly pension benefits first become payable. (c) Workmen’s Compensation payments paid under a claim filed not later than two years after the breaking of seniority. Article V Financing Section 1. Trust Fund The Corporation shall execute a trust agreement with a trustee or trustees by the Corporation to Memorandum Opinion dated February 17, 1978 UNITED STATES DISTRICT COURT District or New JrEersey Civil No. 77-1644 I. Introduction The instant action was originally commenced in the Superior Court of the State of New Jersey, Chancery Division, Union County. It was removed by the defendant to this court pursuant to 28 U.S.C. 4 1441, after which the plaintiffs moved for a temporary restraining order on the basis of their complaint in the state action. At that point, the Attorney General of the State of New Jer- sey moved to intervene.? Subsequently, the court informed *28 U.S.C. § 1441 provides in pertinent part that: (a) Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original juris- diction, may be removed by the defendant or the defend- ants to the district court of the United States for the dis- trict and division embracing the place where such action is pending. (b) Any civil action of which the district courts have ori- ginal jurisdiction founded on a claim or right arising under the Constitution, treaties, or laws of the United States shall be removable without regard to the citizenship or residence of the parties. . *The Attorney General of the State of New Jersey submitted a memorandum of law to the court going to the merits of plain- tiffs’ motion for a preliminary injunction, which has been fully considered by this court. The court has also taken into account the oral argument made before this court by a representative of the Attorney General which also went to the merits of plaintiffs’ motion for a preliminary injunction, 33a Memorandum Opinion dated February 17, 1978 the parties of its intention to treat plaintiffs’ motion as one for a preliminary injunction, and the parties agreed thereto. A hearing was held, at which time the parties were given an opportunity to present evidence in support of their respective positions. ‘Thereafter, plaintiffs moved to have their action certified as a class action®. The par- ties have supplemented the record of this case with a stipulation of facts. Thus, three motions are presently pending before this court: (1) plaintiffs’ motion for a preliminary injunction; (2) the Attorney General’s motion to intervene; and (3) plaintiffs’ motion to have the instant action certified as a class action. These motions wll be considered seriatim. II. The Motion for a Preliminary Injunction On a motion for a preliminary injunction the moving party must demonstrate (1) a reasonable probability of eventual success in the litigation and (2) that he will be irreparably injured pendente lite if the motion is denied. Two other factors which will be weighed, when relevant, are (3) the possibility of harm to other interested persons from the grant or denial of the injunction and (4) the public interest. Obwrn v. Shapp, 521 F.2d 142, 147 (3d Cir, 1975). The two named plaintiffs in this action are retired em- ployees of the defendant, General Motors Corporation. After they retired, they began receiving monetary pay- ments from the defendant pursuant to a pension plan 3 The plaintiff and defendant have signed a consent order certi- fying the present action as a class action under Fed.R.Civ.P. 23 and have submitted the order to this court for its approval. 34a Memorandum Opinion dated February 17, 1978 agreement* negotiated between the defendant and plain- tiffs’ union, the International Union, United Automobile Aerospace and Agricultural Implement Workers of Amer- ica. The pension plan provides in relevant part as fol- follows :° In determining the monthly benefits payable under this Plan to an employe who retires with benefits payable for months commencing on or after April 1, 1971, a deduction shall be made wiless prohibited by law, equivalent to all or any part of Workmen’s Compensation (including compromise or redemption settlements) payable to such employe by reason *The parties have stipulated that “the application of . . . [a] Pension Plan to a particular retired employee is determined by the effective date of his retirement.” Stipulation, 2. Consequently, this court concludes that plaintiffs’ pension rights were negotiated while the plaintiffs were still employees of the defendant, and that those rights were not renegotiated by the union on behalf of the plaintiffs after the plaintiffs retired. From that, this court con- cludes as a matter of law that the pension plan which governs the rights and liabilities of the plaintiffs is the pension plan which was in effect at the time the plaintiffs retired. Allied Chemical & Alkali Workers v. Pittsburgh Glass Co., 404 U.S. 157, 181 n.20 (1971); Hurd v. Hutnik, 419 F.Supp. 630, 654 (D.N.J. 1976). Plaintiff Buczynski retired on January 1, 1972, and plaintiff Borusovic retired on April 1, 1973. At the time they retired, a pension plan was in effect which had been negotiated and agreed upon by the defendant and plaintiffs’ union on November 11, 1970, The pension plan, rather than the two subsequent pension plans, dated November 19, 1973 and November 22, 1976, is the plan which governs the rights and liabilities of the plaintiffs. ® Pension Plan of November 11, 1970, Article 1, Section 2. See n.4, supra, 35a Memorandum Opinion dated February 17, 1978 of any law of the United States, or any political subdivision thereof, which has been or shall be enacted, provided that such deductions shall be to the extent that such Workmen’s Compensation has been provided by premiums, taxes or other payments paid by or at the expense of the Corporation, ex- cept that no deduction shall be made for the follow- ing: (a) Workmen’s Compensation payments specif- ically allocated for hospitalization or medical ex- pense, fixed statutory payments for the loss of any bodily member, or 100% loss of use of any bodily member, or payments for loss of industrial vision. (b) Compromise or redemption settlements pay- able prior to the date monthly pension benefits first become payable. (c) Workmen’s Compensation payments paid under a claim filed not later than two years after the breaking of seniority. (emphasis added) Kach of the plaintiffs recovered a worker’s compensa- tion award pursuant to New Jersey’s Worker’s Compensa- tion Act, N.J.S.A. 34:15, and each of the plaintiffs’ pen- sion benefits was reduced by the defendant in accordance with the above-quoted provision of the pension plan. The plaintiffs seek a preliminary injunction enjoining the defendant from making the deductions in their retire- ment pension benefits on the ground that a recently enacted amendment to New Jersey’s Worker’s Compensation Act 36a Memorandum Opinion dated February 17, 1978 outlaws such deductions®, That amendment provides as follows’: ° The plaintiffs do not contend that the defendant is making deductions contrary to the three exceptions of subdivisions (a), (b) and (c) of Article IV, Section 2, of the Pension Plan. Ra- ther, the plaintiffs argue that the deductions are being made in violation of the “unless prohibited by law” language of Article IV ; Section 2 of the Pension Plan. Plaintiffs’ theory is that the re- cently enacted amendment to New Jersey’s Worker’s Compensa- tion Act outlaws the deductions being made by the defendant, and that defendant is therefore in breach of the pension plan agree- ment, which provides that such deductions can be made “unless prohibited by law.” The plaintiffs’ action, then, is one for breach of a collective bar- gaining agreement, pursuant to the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a), which provides that: (a) Suits for violation of contracts between an employer and a labor organization representing employees in an in- dustry affecting commerce as defined in this chapter, or be- tween any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties. Suits for breach of a collective bargaining agreement are governed by federal law and “arise under” a federal statute, the National Labor Relations Act, as amended. Avco Corp. v. Aero Lodge No, 735, International Ass’n of Machinists and Aerospace Workers, 390 U.S. 557 (1968). Since plaintiffs’ cause of action “arises under” a federal sta- tute, and since this court would have had original jurisdiction over that cause of action had plaintiffs chosen to institute suit in. this court in the first instance, this court has removal jurisdiction un- der 28 U.S.C. § 1441(a), (b). See n.1, supra. * Assembly Bill No. 1309, enacted into law on July 14, 1977, 37a Memorandum Opinion dated February 17, 1978 Be rr Enactep by the Senate and General Assembly of the State of New Jersey: 1. R.S. 34:15-29 is amended to read as follows: 34:15-29. The right of compensation granted by this chapter shall have the same preference against the assets of the employer as is now or may here- after be allowed by law for a claim for unpaid wages for labor. Claims or payments due under this chapter shall not be assignable, and shall be exempt from all claims of creditors and from levy, execution or attachment. The right of compensa- tion granted by this chapter may be set off against disability pension benefits or payments, but shall not be set off against employees’ retirement pension benefits or payments. 2. This act shall take effect immediately. The defendant admits that the deductions it is making in plaintiffs’ retirement pension payments are violative of the above-quoted New Jersey statute. However, the defendant contends that the statute is unconstitutional under the Su- premacy Clause of the United States Constitution in that it is pre-empted by two federal statutes, the [employee Re- tirement Income Security Act of 1974, 29 U.S.C. § 1001 et seq. (ERISA), and the National Labor Relations Act of 1935, as amended, 29 U.S.C. § 151 et seg. (NLRA). If the New Jersey statute is pre-empted by either of those federal statutes, the defendant is acting properly pursuant to the terms of the collective bargaining agree- ment with plaintiffs’ union, and plaintiffs’ motion for a preliminary injunction must be denied. If, on the other hand, the New Jersey statute is not pre-empted by either 38a Memorandum Opinion dated February 17, 1978 of those federal statutes, the defendant is in breach of its collective bargaining agreement with plaintiffs’ union,® and plaintiffs would be entitled to the injunctive relief they seek, provided that the other three factors to be con- sidered on a motion for a preliminary injunction weigh in favor of the plaintiff. Oburn v. Shapp, supra. This court, however, need not decide at this time whether the New Jersey statute is pre-empted by ERISA or the NLRA, since it is clear that plaintiffs’ motion for a pre- liminary injunction must be denied on the ground that they have failed to demonstrate that they will be irreparably injured pendente lite if their motion is not granted, Should it eventually be determined that the plaintiffs are entitled to a permanent injunction against the deductions presently being made in their retirement pension benefits, they can be reimbursed for the money lost during the period of the wrongful withholding. See generally, Leubsdorf, “The Standard for Preliminary Injunctions,” 91 Harv.L.Rev. 525 (1978). Accordingly, the plaintiffs’ motion for a preliminary in- junction is denied. III, The Attorney General’s Motion to Intervene The Attorney General of the State of New Jersey has moved to intervene to defend the constitutionality of the recent amendment to N.J.S.A. 34:15-29, which the defend- ant contends is pre-empted by federal law under the Su- premacy Clause of the United States Constitution. 8 See n.6, supra. 39a Memorandum Opinion dated February 17, 1978 Rule 24(b) of the Federal Rules of Civil Procedure pro- vides as follows: (b) Permissive Intervention, ... When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a fed- eral or state governmental officer or agency or upon any regulation, order, requirement or agreement is- sued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In ex- ercising its discretion the court shall consider whether the intervention will unduly delay or preju- dice the adjudication of the rights of the original parties. : The first sentence of the above quotation was added in 1948 to codify the case of Securities Exchange Commission v. United States Realty & Improvement Co., 310 U.S. 434 (1940), in which the Supreme Court sanctioned official in- tervention in behalf of the public interest, and to avoid “exelusionary constructions” of Rule 24(b) which some lower courts continued to put on that rule after Securities Exchange Commission. TA Wright & Miller, Federal Prac- tice and Procedure, § 1912, at 547-48. It is clear that the plaintiffs’ claim is grounded upon a state statute, N.J.S.A. 34:15-29, as amended. It is equally clear that the Attorney General of the State of New Jersey has an interest in defending that statute from a constitu- tional attack made by the defendant. Since intervention by the Attorney General will not “unduly delay or preju- dice the adjudication of the rights of the original parties,” Fed.R.Civ.P. 24(b), the motion of the Attorney General to intervene is granted. [See Miami Health Studios, Inc. 40a Memorandum Opinion dated February 17, 1978 v. City of Miami Beach, 491 F.2d 98 (5th Cir. 1974) (inter- vention of a state attorney general).] See Fed.R.Civ.P. 24 (a) ; 28 U.S.C. §2403(b). IV. The Motion for Class Action Certification The parties have submitted a consent order to this court for its approval. The consent order provides as follows: OrvereD that this action shall be and is certified as a class action under Rules 23(b)(1) and/or Rule 23(b)(2) of the Federal Rules of Civil Procedure. It is further Orperep that the class shall be and is certified as those persons who were employed in New Jersey by General Motors Corporation who are par- ticipants in the General Motors Corporation Hourly Rate Employees’ Pension Plan who have been, since July 14, 1977, or may hereafter be subject to deduc- tions under Section 2 of Article IV of such Pension Plan from pension benefits payable to them other than disability pension benefits. It is further Orverep that the two named plaintiffs, Henry Buezynski and Alex Borusovie, are hereby certified as the representatives of the class. The court agrees with the parties that the present action should properly be maintained as a class action under Rule 23 of the Federal Rules of Civil Procedure. However, be- fore the court decides which subdivision of Rule 23 is ap- plicable, and the appropriate class to be certified, I will wish to have the benefit of counsels’ written submissions and oral argument. Please address yourselves to what sub- divisions of Rule 23 are applicable and why, the mechanics 4la Memorandum Opinion dated February 17, 1978 of notice, and the proper class. With regard to the sub- ject of the proper class, I note that the parties have stipu- lated that Article ITV, Section 2 of the General Motors Hourly-Rate Employes Pension Plan dated November 11, 1970 is identical to Article ITV, Section 2 of the Pension Plan dated November 19, 1973 and of the Pension Plan dated November 22, 1976, except that the November 11, 1970 version contains the words “to an employe who retires with benefits payable for months commencing on or after April 1, 1971,” following the word “Plan.” In other words, all three Pension Plans are the same in all material re- spects. This raises the question of whether the class should inelude all retired employees of General Motors who are subject to either the 1970 Pension Plan, the 1973 Pension Plan or the 1976 Pension Plan, and who were employees of General Motors in New Jersey at the time they retired. You may be able to agree upon a joint submission. In any event, I will want briefs exchanged by February 27, 1978. Oral argument is set down for March 6, 1978 at 9 a.m. You should also confer and advise the court of whether additional testimony on either side will be required. Among other things, you may wish to consider whether testimony should be offered concerning the history of negotiations relating to the “deduction” language, including the “unless prohibited by law” phrase. Freperick B. Lacey United States District Judge Dated: February 17, 1978 49°a Pretrial Order dated Apri] 13, 1978 UNITED STATES DISTRICT COURT District or New JERSEY Civil Action No. 77-1644 April 13, 1978 Newark, New Jersey Before the Honorable William J. Hunt United States Magistrate Appearances: Mare C. Gettis, Esquire Lester Weiner & Associates For Plaintiffs. Laurence Reich, Esquire Carpenter, Bennett & Morrissey For Defendant 1, Nature oF THE Actions This is an action for injune- tive relief against the implementation by defendant of the provisions of Article IV, Section 2, of the General Motors Corporation Hourly-Rate Employees Pension Plan so as to deduct certain New Jersey Workers Compensation Act benefits payable to plaintiffs and other members of the class represented by plaintiffs from retirement benefits payable to such person under such Pension Plan. This is an action removed pursuant to 28 U.S.C. §1441 of which this Court has jurisdiction pursuant to 28 U.S.C. $1332, by reason of the provisions of Section 301(a), and Section 502(e)(1) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §1132(e) (1). 43a Pretrial Order dated April 13, 1978 2. Exursrrs, ApMiss1ons AND Stipunations: Not later than May 8, 1978, counsel will meet and confer and accomplish the following: (a) All exhibits are to be premarked and each side is to prepare his or its own exhibit list in the usual form used in this court. (b) A complete set of exhibits is to be exchanged and admissibility agreed upon. Where agreement can- not be reached, the side offering the document should set forth in letter form the exhibit being tendered, why it is admissible, and the objections thereto. This is to be presented to the Honorable Frederick B. Lacey at the time of submission of trial mem- oranda, (c) Each side is to come to the aforesaid meeting with his or its proposals for stipulation he or it seeks and at the conclusion of the meeting a stipulation of facts is to be prepared and signed by all counsel and filed with the Clerk of the United States Dis- trict Court not later than May 10, 1978. 8. Facruay anp Leaat Conventions or Puaintirrs: See attached. 4. Facrvan anp Lecat Contentions oF DerenpANt: See attached. 4A. Facruat anp Lecat ConTENTIONS OF THE INTERVENOR, Srate or New Jersey: None submitted. 5. Cuarms as ro Damaces: Plaintiffs’ request injunctive re- lief, enjoining and restraining the defendant from imple- menting Article 4, Section 2 of the Pension Plan. Each 44a Pretrial Order dated April 13, 1978 individual plaintiff should be entitled to damages in the amount of the deductions which have been made from his pension. Plaintiffs also seek costs from defendant in this action. 6. AMENDMENTS TO THE PLEADINGS: On February 21, 1978, the Honorable Frederick B. Lacey ordered that the State of New Jersey may intervene as a defendant herein. On March 26, 1978, the court granted the plaintiffs’ motion to certify this action as a class action. 7. Lear Issues: Validity and enforceability of N.J.S.A. 34:15-29, as amended by Chapter 156 of Public Laws of the State of New Jersey of 1977 in view of preemption by the provisions of Section 514(a) of the IXmployee Re- tirement Income Security Act of 1974, 29 U.S.C, §1144(a) ; propriety of injunctive relief, damages. 8. Laat Issuers ABANDONED: None. 9. AppiTionaL Discovery: None. 10. Briers: Counsel are to submit not later than May 10, 1978, comprehensive trial memoranda setting forth in de- tail the names of the witnesses each intends to call, the background of each witness, and a detailed recital of the testimony each witness will give. Each memorandum will also contain in its factual portion an analysis of all the documentation which will be submitted. Each memorandum will deal comprehensively as well with applicable law, Pre- liminaray proposed findings of fact and conclusions of law will accompany the submission of trial memoranda. 11. Mortons: The parties may file cross-motions for sum- mary judgment. 45a Pretrial Order dated April 13, 1978 12. Opentna anp Criosina: Usual order. 13. Expert Wirnesses: None. 14. Estrmarep Leneru or Tria: Counsel have noted in their respective pretrial memoranda that this action can be determined on the pleadings, affidavits, and the stipulation before the court as well as on the briefs and oral argu- ment. 15. Trirat Counse.: For the Plaintiffs: Lester Weiner & Associates For the Defendant General Motors: Laurence Reich, sq. For the Defendant State of New Jersey: Michael 8. Bokar, Esq. 16. Triat Dare: This matter has been listed for trial be- fore the Honorable Frederick B. Lacey on May 15, 1978. WituaM J. Hunt United States Magistrate FactruaL ConrTeNTIONS OF PLAINTIFFS This is a class action brought by plaintiffs against Gen- eral Motors Corporation. The class consists of those per- sons who are retired members of the General Motors Cor- poration Hourly Rate Retirees Pension Plan who retired under the provisions of said Pension Plan as set forth in Exhibit A-1 to the Agreement between General Motors Corporation and the International Union, United Automo- 46a Pretrial Order dated April 13, 1978 bile, Aerospace and Agricultural Implement Worker’s of America, dated November 11, 1970, November 19, 1973 or November 22, 1976, who retired with benefits payable for months commencing on or after April 1, 1971 and who at the time of their retirement, were employed by General Motors Corporation in New Jersey. The defendant has deducted and continues to deduct from plaintiffs’ retire- ment pensions (General Motors Hourly Rate Retirees Pen- sion Plan Exhibit A to agreement between General Motors Corporation and UAW) in the amounts of judgments which these plaintiffs have collected from defendant for occupa- tional injuries, in the New Jersey Department of Labor and Industry, Division of Worker’s Compensation. Article IV, Section 2 of the Pension Plan allows such deductions, “unless prohibited by Law.” Chapter 156 of the New Jersey Laws of 1977 prohibits these deductions. The defendant has continued to make said deductions, al- leging that the New Jersey statute is preempted under section 514(a) of E.R.I.S.A. and under section 301 of the N.L.R.A. Plaintiffs contends that this action is not preempted by section 514(a) of E.R.LS.A., but rather fits within the exception of section 514(b) of E.R.LS.A., in that plaintiffs have causes of action which arose prior to J anuary 1, 1975 and defendant committed certain acts and omissions be- fore January 1, 1975. The defendant’s acts and omissions consisted of operating their three New Jersey plants where the plaintiffs were exposed to loud noise and de- leterious substances, resulting in compensable disabilities, Plaintiffs collected for these disabilities, but defendant sub- sequently deducted these amounts from plaintiff's pen- sions. The plaintiffs are before this Court in an attempt 47a Pretrial Order dated April 13, 1978 to re-coup these same monies and to enjoin defendant’s conduct. Plaintiffs contend that the State statute is not preempted under the N.L.R.A. The Statute is not contrary to the agreement between the parties but rather is incorporated therein under the “unless prohibited by law” clause. The statute was enacted for the purpose of regulating Work- er’s Compensation, an area of local interest and responsi- bility, where the State still has the power to act and regu- late. The law is a legislative attempt to guarantee work- ers their rights under the Worker’s Compensation laws. Plaintiffs also contend that preemption of the state stat- ute would deprive these plaintiffs of any legal remedy for injuries arising in the course of employment. Worker’s Compensation laws abrogate any common law right. Pre- emption of the statute would effectively deny plaintiffs their rights under Worker’s Compensation, since any pay- ments thereunder could be offset against the employees pensions. Since Chapter 156 of the laws of 1977 is a proper exer- cise of State power and is not preempted under Federal Law, the defendant has been acting in violation of the law. Injunctive relief is the proper remedy for the plaintiffs in this action. For most of these plaintiffs, the monthly pension is the sole source of income, with the exception of Social Security. Deductions from pension benefits is caus- ing these plaintiffs irreparable harm for which an injune- tion is the appropriate remedy. 48a Pretrial Order dated April 13, 1978 FactuaL AND Lecau ConTenTIONS The applicable facts herein are not disputed. At all times since April 1, 1971, to and including the date here- of, the General Motors Corporation Hourly-Rate Em- ployes Pension Plan (hereinafter referred to as the “Pen- sion Plan”) adopted by defendant and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, applicable to plaintiffs and other members of the class represented by plaintiffs, as provided, in Article IV, Section 2 thereof, for the de- duction from benefits otherwise payable under the Pen- sion Plan of certain Workmen’s Compensation payments payable to a retired employee thereunder. Such deduc- tions have been made by defendant in aceordance with such provision of the Pension Plan, both prior and subse- quent to July 14, 1977, the date of enactment and effective date of Chapter 156 of the Public Laws of the State of New Jersey of 1977, which amended the New Jersey Work- ers Compensation Act, N.J.S.A. 34:15-29, to provide that: “The right of compensation granted by this chap- ter may be set off against disability pension benefits or payments but shall not be set off against em- ployees’ retirement pension benefits or payments.” Plaintiffs contend that defendant is prohibited by N.J.S.A. 34:15-29, as amended, from making deductions from retirement pension benefits otherwise payable to plaintiffs and other members of the class represented by plaintiffs after July 14, 1977 pursuant to Section 2 of Article IV of the Pension Plan. Defendant contends that insofar as it purports to apply to the Pension Plan, which is an employee benefit plan deseribed in Section 4(a) of the Employee Retirement Income Security Act of 1974, 49a Pretrial Order dated April 13, 1978 P.L. 93-406 (hereinafter referred to as “ERISA”), 29 U.S.C. §1003(a), and not exempt under Section 4(b) of ERISA, 29 U.S.C. §1003(b), N.J.S.A. 34:15-29, as amended by Chapter 156 of the Laws of 1977, is superseded and preempted by reason of the provisions of Section 514(a) of ERISA, 29 U.S.C. §1144(a). Therefore, N.J.S.A. 34:15- 29 may not be applied so as to preclude deductions by defendant from retirement pensions of plaintiffs and other members of the class represented by plaintiffs in accord- ance with the provisions of Section 2 of Article IV of the Pension Plan. 50a Stipulation, dated May 9, 1978 UNITED STATES DISTRICT COURT District or New Jrersey Civil Action No. 77-1644 Ir 1s, on this 9th day of May, 1978, Srrpunarep AND Acreep, by and between the undersigned counsel for plain- tiffs and defendant in the above-entitled action, as fol- lows: 1. The Stipulation of the parties dated December 5, 1977 and filed herein December 7, 1977, be and it hereby is in- corporated herein by reference, and, the Pension Plans of which Exhibits A, B, and C thereto are part are hereby designated Joint Exhibits A, B, and C in this action. 2. Defendant is an employer engaged in commerce or in an industry or activity affecting commerce. 3. The plaintiffs herein are all persons formerly em- ployed by defendant in New Jersey who, on various dates on or after April 1, 1971, retired from the employ of defendant under the provisions of the General Motors Hourly-Rate Employes Pension Plan (hereinafter and in the aforesaid Stipulation dated December 5, 1977 referred to as the “Pension Plan”). All of the named plaintiffs have received awards of benefits under the New Jersey Workers’ Compensation Act. All of the named plaintiffs have had deductions made by defendant from the pension benefits otherwise payable to them under the Pension Plan since July 14, 1977 by reason of the receipt of such awards and in accordance with the provisions of Section 2 of Article IV of the Pension Plan. dla Stipulation, dated May 9, 1978 4, It is stipulated and agreed, without any stipulation or agreement as to the relevance or significance thereof, that Joint Exhibits D and E are true copies of Section 2 of Article IV of the 1958 and 1961 Pension Plans, re- spectively. LesTteR WEINER Attorney for Plaintiffs CarpeNTER, Bennetr & Morrissey Attorneys for Defendant By Laurence Reicu A Member of the Firm 52a Order Certifying Class Action, dated August 9, 1978 UNITED STATES DISTRICT COURT For THE District or New JERSEY (Hon. Frederick B. Lacey) Civil Action No. 77-1644 — >> Henry Buczynsx1, AtEx Borusovic anp Oruer RETIREES Srurak.y SrrvatTep, Plaintiffs, —vVs— THE Generat Morors Corporation, Defendant. This matter having been opened to the Court by Lester Weiner, Esq., attorney for plaintiffs, on the application of plaintiffs for an order certifying the above-entitled ac- tion as a class action, and the Court noting the consent of the parties hereto to the entry of this Order, and good cause appearing, Ir 1s, on this 9th day of August, 1978, OnpeEReD, that this action be and it hereby is certified as a class action pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure; and it is 53a Order Certifying Class Action, dated August 9, 1978 FurtHer OrpereD, that the class be and it hereby is certified as consisting of those persons who are retired members of the General Motors Corporation Hourly-Rate Employes Pension Plan who retired under the provisions of said Pension Plan as set forth in Exhibit A-1 to the Agreement between General Motors Corporation and the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, datad No- vember 11, 1970, November 19, 1973, or November 22, 1976, who retired with benefits payable for months commencing on or after April 1, 1971, and who, at the time of their retirement, were employed by General Motors Corporation in New Jersey; and it is FurtHer Orperep, that the above-entitled action be and it hereby is set down for Pretrial Conference before Hon- orable William J. Hunt at 9:00 A.M. on April 10, 1978, and for trial before this Court on May 1, 1978. Freperick B. Lacey, U.S.D.J. We hereby consent to the making and entry of the fore- going Order. Lester WEINER Attorney for Plaintiffs By: Marc C, Gerttis CARPENTER, Bennett & Morrissey Attorneys for Defendant By: Laurence Reicu A Member of the Firm Joun J. DeGnNan Attorney General of the State of New Jersey Attorney for Intervenor By: Micuarei 8. Boxar Deputy Attorney General 54a Memorandum Opinion, dated August 24, 1978 UNITED STATES DISTRICT COURT District or New Jersey Civil No. 77-1644 » _ Henry Buozynski, Avex Borusovic, and Orner RETIREES Smuarvy Srrvatep, Plaintiffs, V. Genera Motors Corporation, Defendant. > Lacey, D.J. Plaintiffs in this class action’ are retired employees of defendant General Motors Corporation who had been re- ‘The certified class consists “of those persons who are retired members of the General Motors Corporation Hourly-Rate Employees Pension Plan who retired under the provisions of said Pension Plan as set forth in Exhibit A-1 to the Agreement between General Motors Corporation and the International Union, United Automo- bile, Aerospace and Agricultural Implement Workers of America, dated November 11, 1970, November 19, 1973, or November 22, 1976, who retired with benefits payable for months commencing on or after April 1, 1971, and who, at the time of their retirement, were employed by General Motors Corporation in New Jersey.” See order filed August 9, 1978. 55a Memorandum Opinion dated August 24, 1978 ceiving retirement pension benefits from the defendant pursuant to a pension plan negotiated between the defend- ant and plaintiffs’ union. After the plaintiffs received worker’s compensation payments pursuant to New Jersey’s Worker’s Compensation Act,’ the defendants reduced the plaintiffs’ benefits under the plan by an amount equal to those payments, pursuant to Article IV, Section 2, of the p.an. The plaintiffs contend that the defendant cannot law- fully make such deductions in their pension benefits. They seek reimbursement of all pension benefits thus withheld and a permanent injunction against all such future deduc- tions which are predicated upon the receipt of worker’s compensation payments. For the reasons set forth below, the plaintiffs are en- titled to the relief they seek. Dealing first with the issue of subject matter jurisdiction in this removed matter, 28 U.S.C. § 1441, I conclude I have such jurisdiction to decide the issues. Even were there any question about the propriety of removal by the de- fendant, neither side has questioned it. Since it is. clear I would have had original jurisdiction over the claims pre- sented here, a valid judgment can be entered with respect to them.’ Grubbs v. General Electric Credit Corp., 405 U.S. 699, 702 (1972). 2N.J.S.A. 34:15 et seq. ° Thus, tiis court would have had original subject matter juris- diction over the instant action under the Labor Management Rela- tions Act of 1947, 29 U.S.C. § 185(a) and under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. §§ 1132(f), 1132(a) (3). Moreover, this court has removal jurisdiction over plaintiffs’ state court action under 28 U.S.C. § 1441(a)(b), predicated upon 29 U.S.C. § 185(a). , 56a Memorandum Opinion, dated August 24, 1978 The complaint as filed alleges that the plaintiffs are re- tired employees of the defendant, that they have been re- ceiving pension benefits under a Pension Plan Agreement between their union and the defendant, that they have ob- tained judgments entitling them to worker’s compensation benefits, and that the defendant threatens to reduce their pension benefits because they have recovered worker’s com- pensation benefits. The complaint sets forth Article IV, Section 2 of the Pension Plan Agreement: In determining the monthly benefits payable under this Plan, a deduction shall be made unless prohibited by law, equivalent to all or any part of Workmen’s Compensation (including compromise or redemp- tion settlements) payable to such employee by rea- son of any law of the United States, or any political subdivision thereof, which has been or shall be en- acted, provided that such deductions shall be to the extent that such Workmen’s Compensation has been provided by premiums, taxes or other payments paid by or at the expense of the Corporation, except that no deduction shall be made for the following: (a) Workmen’s Compensation payments specifi- cally allocated for hospitalization or medical expense, fixed statutory payments for the loss of any bodily member, or 100% loss of use of any bodily member, or payments for loss of industrial vision. (b) Compromise or redemption settlements pay- able prior to the date monthly pension benefits first become payable. (c) Workmen’s Compensation payments paid un- der a claim filed not later than two years after the breaking of seniority. (emphasis added) “ 57a Memorandum Opinion, dated August 24, 1978 The complaint then alleges that the deductions threat- ened by the defendant are now in violation of a recent amendment to New Jersey’s Worker’s Compensation Act* which provides that:° “The right of compensation granted by this chapter may bet set off against disability pension benefits or payments but shall not be set off against em- ployees’ retirement pension benefits or payments.” The complaint concludes with a prayer for a permanent injunc- tion against the threatened deductions. Plaintiffs’ action, therefore, is predicated upon an alleged breach or violation of the “unless prohibited by law” clause of the Pension Plan Agreement. Thus they argue that, since Article IV, Section 2 of the Pension Plan Agreement bars the defendant from offsetting pension benefits against worker’s compensation benefits where “prohibited by law,” and the New Jersey Worker’s Compensation Act embodies such a prohibition, the continued deductions violate the ex- press provisions of the Pension Plan Agreement. The complaint did not advance a claim founded upon a theory that the offset provision is unlawful under ERISA. That claim was first raised indirectly when plaintiffs’ coun- sel brought to this court’s attention the recently decided * There is no allegation that defendant threatens to make the de- ductions in plaintiffs’ pension benefits contrary to the three excep- tions to the offset provision contained in subdivisions (a), (b), or (c) of Article IV, Section 2 of the Pension Plan Agreement. ®L. 1977, c. 156 § 1, eff. July 14, 1977, amending N.J.S.A. 34:15-29, * Subsequent to the filing of the complaint, the defendant has been making the deductions in plaintiffs’ pension benefits and has made it clear that it will continue to do so. 58a Memorandum Opinion, dated August 24, 1978 Utility Workers Union of America v. Consumers Power Co., No. 7-71747 (E.D.Mich., filed June 13, 1978). The defendant’s response was not a claim of prejudice by rea- son of a belated addition to plaintiffs’ bag of legal theories of recovery.’ Instead, the defendant responded by refer- ring the court to another case’ in the same court, the East- ern District of Michigan, which was decided contrary to the Utility Workers case. The defendant, as I have noted, admits all of the ma- terial allegations necessary to a decision on the question of whether ERISA itself bars the offset involved, includ- ing that the pension plan falls within the coverage of RISA. See 29 U.S.C. § 1003. Thus, I perceive no prejudice to the defendant in ad- dressing the issue of the lawfulness of the offsetting in question under 29 U.S.C. § 1053 of ERISA. See 5 Wright & Miller, Federal Practice and Procedure, Civil, 4 1219. * The defendant contended only that the ERISA claim was “en- tirely outside the scope of the pleadings and proof now before the court” and that the Utility Workers case was therefore irrelevant. Letter to Court, dated July 26, 1978. * Bordine v. Evans Product Co., No. 7-71652 (E.D. Mich., filed April 6, 1978). | *Once a federal court has removal jurisdiction, a party may amend his complaint to assert a federal claim that could not have been presented in the state court. Freeman v. Bee Machine Co., 319 U.S. 448 (1943). This court has removal jurisdiction over plaintiffs’ breach of contract claim which was asserted in state court. See n.3 supra. Thus, under Freeman, the plaintiffs could have amended their complaint here to assert the unlawfulness of the offset provision under ERISA, 29 U.S.C. § 1053, a claim over which this court has original subject matter jurisdiction under 29 U.S.C. § 1132(f). 59a Memorandum Opinion, dated August 24, 1978 The Offset Provision of the Pension Plan Is Unlawful Under ERISA The minimum vesting standards provision of ERISA, 29 U.S.C. § 1053, provides in pertinent part that: (a) Each pension plan shall provide that an em- ployee’s right to his normal retirement benefits is nonforfeitable upon the attainment of normal retire- ment age and in addition shall satisfy the require- ments of paragraphs (1) and (2) of this subsection. (1) A plan satisfies the requirements of this paragraph if an employee’s rights in his accrued benefit derived from his own contributions are non- forfeitable. (2) A plan satisfies the requirements of this paragraph if it satisfies the requirements of sub- paragraph (A), (B), or (C). (A) A plan satisfies the requirements of this subparagraph if an employee who has at least 10 years of service has a nonforfeitable right to 100 percent of his accrued benefit derived from employer contributions.” 1° Subparagraph (B) provides for an alternate pension plan under which an employee can obtain a nonforfeitable right to an increas- ingly higher percentage of his accrued benefit derived from employer contributions depending upon his years of service. For example, an employee who has served at least 5 years would have a non- forfeitable right to 25% of his accrued benefit, while an employee who had served at least 15 years would have a nonforfeitable right to 100% of his accrued benefit. (Footnote continued on following page) 60a Memorandum Opinion, dated August 24, 1978 In Utility Workers, it was held that a provision in a pen- sion plan falling within the coverage of ERISA which pro- vides that retirement pension benefits are to be offset against worker’s compensation benefits is unlawful under ERISA, 29 U.S.C. § 1053. This court is in full agreement with the well-reasoned opinion in that case.” Under ERISA, a pension plan must provide that an employee’s rights in his accrued benefits derived from his own contributions is nonforfeitable.’* The pension plan must also provide that an employee has a nonforfeitable right to a certain percentage of his accrued benefit derived (Footnote continued from preceding page’ Subparagraph (C) provides for yet a third alternate pension plan under which an employee can obtain a nonforfeitable right to an increasingly higher percentage of his accrued benefit derived from employer contributions depending upon his years of service and his age. For example, where an employee has served at least 5 years and the sum of his age and service is at least 45, he has a nonforfeitable right to 50% of his accrued benefit; but where an employee has at least 10 years of service and the sum of his age and service is at least 55, he has a nonforfeitable right to 100% of his accrued benefit. It is immaterial whether plaintiffs’ pension plan is one predi- cated upon subparagraph (A), (B), or (C) of 29 U.S.C. § 1053 (a) (2). 1! This court rejects the contrary holding in the case of Bordine, supra note 9, at 4. 1% ERISA does not provide for any exceptions to the nonforfeit- ability requirement in the case of accrued benefits derived from employee contributions. 6la Memorandum Opinion, dated August 24, 1978 from employer contributions,” the particular percentage depending upon (1) his years of service or (2) his years of service and his age. When a pension plan, such as the one under considera- tion here, makes the employee’s right to a certain per- centage of his accrued benefit derived from employer con- tributions conditional upon a factor other than years of service or years of service and age, the plan is unlawful, unless the factor is one of those set forth in 29 U.S.C. § 1053(a) (3). The pension plan herein makes the plaintiffs’ rights to their accrued benefits conditional upon their not obtaining worker’s compensation benefits. Such a factor is not one of those set forth in 29 U.S.C. § 1053(a)(3). As a result, the pension plan is unlawful.” 8 The court will assume that plaintiffs’ pension plan is fully funded by the defendant. #29 U.S.C. § 1053(a) (3) legalizes pension plans which provide that an employee’s right to an accrued benefit is forfeitable if he dies, if he is employed in certain types of industries, if certain amendments are made retroactive, or if he withdraws any amount attributable to the benefit derived from mandatory contributions made by him. * In addition to Utility Workers, see also Riley v. MEBA Pen- sion Trust, 570 F.2d 406, 409 (2d Cir. 1977). 62a Memorandum Opinion, dated August 24, 1978 The Offset Provision of the Pension Plan Is Void Under the “Unless Prohibited By Law” Clause of the Pension Plan As noted previously, the Pension Plan Agreement be- tween the defendant and the plaintiffs’ union provides that retirement pension benefits may be offset against worker’s compensation benefits “unless prohibited by law.” At the final hearing in this case on May 15, 1978, the testimony established that after a number of years’ ab- sence from the General Motors’ pension plan, the offset provision reappeared in the 1970 pension plan.’® The testimony also established that it was the defendant which proposed the reinsertion of the offset provision into the pension plan because there had been a “deluge” of work- er’s compensation cases from which the defendant sought “relief.”"7_ The “unless prohibited by law” clause was also proposed by the defendant. The “unless prohibited by law” clause “meant just as the language indicated, pure and simple, that if there were states then having state laws which prohibited an offset and if in the future there would be state laws that prohibited offset that would be applicable and it was just that pure and simple." ‘© The offset provision was continued in the 1973 and 1976 pen- sion plans. All three plans contain the “unless prohibited by law” clause. Stipulation of December 7, 1977. ™ Testimony of Hubert Clodfelder, Union Negotiator, Hearing of May 15, 1978, Tr. at 8. The pension plan being negotiated was to apply to 130 General Motors’ plants located in at least thirty States. 18 Jd. at 10. 63a Memorandum Opinion, dated August 24, 1978 The defendant admits that the deductions it is making in plaintiffs’ retirement pension benefits are prohibited by the recent amendment to New Jersey’s Worker’s Com- pensation Act. The defendant contends, however, that that amendment is unconstitutional under the Supremacy Clause of the United States Constitution, in that it has been preempted by ERISA, 29 U.S.C. § 1144(a),’® which provides that: (a) Except as provided in subsection (b) of this section, the provisions of this subchapter and sub- chapter III of this chapter shall supercede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan described in section 1003(a) of this title and not exempt under section 1003(b) of this title. This section shall take effect on January 1, 1975. As I have already indicated in the preceding section of this opinion, the offset provision of the pension plan is un- lawful under ERISA, 29 U.S.C. § 1053. The New Jersey statute, insofar as it is merely duplicative of ERISA, is preempted by that federal statute. Rogers v. Larson, 563 F.2d 617, 621 (3d Cir. 1977), appeal filed, 46 U.S.L.W. 3529 (U.S. Jan. 20, 1978). 1°The defendant also contends that the New Jersey statute is preempted by the National Labor Relations Act, as amended, 29 U.S.C. § 141 et seg. This contention, however, is without merit, since the parties specifically agreed that the offset provision of the pension plan would be inapplicable if it was prohibited by state law. By applying the recent amendment to New Jersey’s Worker’s Compensation Act to bar the offset of pension benefits against worker’s compensation benefits, this court would be doing nothing more than enforcing the agreement between the parties reached after the give and take of collective bargaining. 64a Memorandum Opinion, dated August 24, 1978 However, assuming arguendo that ERISA does not out- law the offset provision of the pension plan, it becomes necessary to determine whether the specific preemptive language of ERISA, 29 U.S.C. § 1144(a), renders the New Jersey statute null and void as applied to the facts of this ease. If the New Jersey statute is not preempted by ERISA, the offset provision of the pension plan was ren- dered null and void by the “unless prohibited by law” clause of the pension plan when the recent amendment to New Jersey’s Worker’s Compensation Act became effective on July 14, 1977. In determining whether the New Jersey statute is pre- empted,” this court is guided by the opinion of the Court of Appeals for the Third Circuit in the case of Rogers v. Larson, supra at 620-21, wherein the court discussed the three preemption “tests”: The Supreme Court has... established three grounds upon which a local statute may be deemed pre- empted by federal law. It will be pre-empted (1) if “Congress has unmistakenly so ordained,” or (2) if “the nature of the regulated subject matter per- mits no other conclusion” but pre-emption, or (3) if it violates the Supremacy Clause by standing “as an obstacle to the accomplishment and execution of 20The court reiterates that this discussion is predicated upon the assumption that the offset provision of the pension plan is not unlawful under ERISA. 65a Memorandum Opinion, dated August 24, 1978 the full purposes and objectives of Congress.” (cita- tion omitted )** The touchstone of all three preemption tests is Congres- sional intent to preempt. Rogers v. Larson, supra at 621 n.8. The defendant contends that the New Jersey statute is preempted under the first preemption test, in that Con- gress, through the specific preemptive language of ERISA, 29 U.S.C. § 1144(a), “unmistakenly” intended to preempt this state law.” It is true that under ERISA, 29 U.S.C. § 1144(a), all state laws which “relate to” any employee benefit plan covered by ERISA are superseded. Although the New 1 With respect to the last two tests, the court explained that: We understand the second test to mean that the subject matter of the federal and local laws is such that the two laws or regulatory schemes must inherently either conflict or be duplicative. That is, under this test it is impossible for there to be local regulation in the subject area that does not conflict with or duplicate federal regulation. The third test is applied when there is room in the sub- ject area for both federal and local regulation. This test requires the court to examine both statutory schemes to de- termine if they can co-exist or if they conflict. Rogers v. Larson, 563 F.2d 617, 621 (3d Cir. 1977), appeal filed, 46 U.S.L.W. 3529 (U.S. Jan. 20, 1978). 22The defendant does not argue that the New Jersey statute is preempted under either preemption test (2) or (3). It is clear to this court that the statute is not preempted under either of those tests. 66a Memorandum Opinion, dated August 24, 1978 Jersey statute undoubtedly “relates to” pension plans in the broadest dictionary sense of that term, this court can- not agree with the defendant that the New Jersey statute “relates to” pension plans within the meaning of ERISA, 29 U.S.C. § 1144(a). Congress, to be sure, must have in- tended by that language to occupy the entire field of pen- sion plan law to the exclusion of all state regulation. See Allied Structural Steel Co. v. Spannaus, 46 U.S.L.W. 4887, 4889 n.8 (U.S. June 28, 1978); Malone v. White Motor Corp., 46 U.S.L.W. 4295 n.1 (U.S. April 3, 1978) ; Marshall v. Chase Manhattan Bank, 558 F.2d 680, 683 (2d Cir. 1977). However, the New Jersey statute at issue here is in no way concerned with pension plans qua pension plans. On the contrary, the New Jersey statute is solely concerned with protecting the employee’s right to worker’s compensa- tion disability benefits. This is clear from the language of the statute itself. The statute provides that worker’s compensation benefits may be set off against disability pension benefits, but not against retirement pension bene- fits. Thus, under the statute an employee is not entitled to double compensation for a work-related disability, once under the Worker’s Compensation Act, and once under his pension plan. On the other hand, an employee is en- titled to be compensated at least once for his work-related disability. It is self-evident that if an employee can receive compensation for his work-related disability under New Jersey’s Worker’s Compensation Act just to have an equal amount taken away from his retirement pension benefits, the employee, in reality, has been deprived of compensation for his work-related disability.** Utility Workers Union *8It is obvious that an employer could not justify, upon any rational basis, giving one employee less retirement pension benefits than another employee solely on the basis that the former employee has a work-related disability while the latter does not. 67a Memorandum Opinion, dated August 24, 1978 of America v. Consumers Power Co., supra, slip op. at 16 n.12. The New Jersey statute forbids such a result. Congress, by enacting ERISA, and the specific pre- emptive language of 29 U.S.C. 4 1144(a), could not have intended to prohibit states from protecting an employee’s state-created right to worker’s compensation benefits by enacting laws such as the one New Jersey enacted here. That Congress recognizes state law preeminence in the field of worker’s compensation law is clear from ERISA itself which exempts from the coverage of ERISA an employee benefit plan “maintained solely for the purpose of complying with applicable workmen’s compensation laws. . . .” 29 U.S.C. § 1003(b) (4).24 That New Jersey had a strong interest in enacting the recent amendment to its Worker’s Compensation Act can- not be denied. That Act “was intended to place the cost of accidental injuries which are work-connected upon em- ployers, who may provide for them as operating expenses. Renshaw v. United States Pipe € Foundry Co., 30 N.J. 458 (1959); Tocci v. Tessler and Weiss, Inc., 28 N.J. 582 (1959).” Daniello v. Machise Express Co., 119 N.J. Super 20, 24 (LawDiv. 1972), aff’d, 122 N.J. Super 144 (App. Div. 1973). Where a disability is compensable under that statute, a common law suit by the employee against his employer is unavailable. Dudley v. Victory Lynn Lines, Inc., 32 N.J. 479 (1960). Consequently, if an employer can avoid his statutory duty to provide compensation to his *4 This court assumes that plaintiffs’ pension plan is not such a plan. Nevertheless, 29 U.S.C. § 1003(b)(3) is relevant to de- termining Congressional intent with respect to the term “relate to” in 29 U.S.C. § 1144(a). 68a Memorandum Opinion, dated August 24, 1978 employees for work-related disabilities, the employee is without any remedy at all. If an employer can reduce an employee’s retirement pension benefits by an amount equal to the employee’s award of worker’s compensation disabil- ity benefits, the employer has accomplished just that—he has avoided his statutory obligation to compensate the em- ployee for his work-related disability. Thus, New Jersey had a strong interest in closing that “loophole” in its Work- er’s Compensation Act by enacting the recent amendment under consideration here. In Farmer vy. Carpenters, 430 U.S. 290, 362 (1977), the Supreme Court stated that: Our cases indicate, however, that inflexible applica- tion of the [preemption] doctrine is to be avoided, especially where the State has a substantia: interest in regulation of the conduct at issue and the State’s interest is one that does not threaten undue inter- ference with the federal regulatory scheme. While it is true that the Court in that case was speaic- ing of the National Labor Relations Act, as amended, which, unlike ERISA, does not contain specific preemptive language, the statement is nevertheless relevant in dis- cerning Congvessional intent with respect to the term “relate to” in ERISA, 29 U.S.C. 4 1144(a). The State of New Jersey’s substantial interest in enact- ing the recent amendment to its Worker’s Compensation Act has already been demonstrated. Moreover, this court cannot discern how that amendment threatens any inter- ference with the federal regulatory scheme of ERISA, let alone undue interference. Finally, since the amend- ment simply does not relate to pension plans qua pension plans, but is instead directed towards protecting an em- Re, 69a Memorandum Opinion, dated August 24, 1978 ployee’s right to worker’s compensation benefits, this court concludes that Congress did not intend to preempt the amendment by enacting ERISA and the preemptive lan- guage of 29 U.S.C. § 1144(a).* CoNncLUSION I hold as follows: 1. Plaintiffs are entitled to the relief they seek be- cause the offset provision of their pension plan is unlawful under ERISA, 29 U.S.C. § 1053. 2. Assuming arguendo that Congress did not out- law the offset provision by enacting ERISA, Con- gress did not intend ERISA to prohibit the states from outlawing such offset provisions. Conse- quently, the plaintiffs are entitled to the relief they seek because the offset provision of the pension plan was rendered null and void by the “unless prohibited by law” clause of the pension plan when the State of New Jersey amended its Worker’s Compensation Act on July 14, 1977 so as to prohibit offsets of re- tirement pension benefits against worker’s compen- saiton benefits. Freperick B. Lacey United States District Judge Dated: August 24, 1978 *6 Plaintiffs’ contention that 29 U.S.C. § 1144(a) is inapplicable to the case at bar by reason of 29 U.S.C. § 1144(b)(1) is without merit. That provision provides as follows: (b)(1) This section shall not apply with respect to any cause of action which arose, or any act or omission which occurred, before January 1, 1975. Consequently, this court has found it necessary to consider the meaning of 29 U.S.C. § 1144(a) as applied to the facts of this case. 70a Opinion, dated December 29, 1978 UNITED STATES DISTRICT COURT District or New JERSEY Civil No. 77-1644 — > Henry BuczynskI, et al., Plaintiffs, Vv. GeneraL Motors Corporation, Defendant. Lacey, D.J. The defendant moves for reconsideration of this court’s decision embodied in an opinion and order filed August 24, 1978. That decision invalidated reductions by the de- fendant in the pension payments made to the plaintiffs in an amount equal to the value of payments received under the New Jersey Worker’s Compensation Act, N.J.S.A. 34:15 et seq. Struck down was the pension plan’s provision al- lowing this offset, Article IV, Section 2, on two separate grounds: first, that the offsets were unlawful under 29 U.S.C. § 1053; second, even if Congress did not forbid these pension deductions, New Jersey was not barred by the preemption doctrine from passing a law which effectively 7la Opinion, dated December 20, 1978 outlawed this offset under the “unless prohibited by law” clause of the plan. The defendauat, in its motion to reconsider, challenges both rationales upon which the earlier decision was grounded. 29 U.S.C. § 1053 The defendant’s action, I previously had held, violated the minimum vesting section of ERISA, 29 U.S.C. § 1053, by failing to make nonforfeitable the plaintiffs’ rights to their retirement benefits. The defendant, arguing that the offsets do not constitute a forfeiture within the meaning of ERISA, relies on Treas. Reg. § 1.411(a)-4(a), which provides: Furthermore, nonforfeitable rights are not to be considered to be forfeitable by reason of the fact that they may be reduced to take into account bene- fits which are provided under the Social Security Act or under any other Federal or State law and which are taken into account in determining plan benefits. Two courts have applied this regulation to hold that deducting worker’s compensation payments from pension payments does not offend ERISA’s nonforfeitability re- quirement. Bordine v. Evans Products Co., 453 F.Supp. 19 (E.D. Mich. 1978) ; Pavlovic v. Chrysler Corp., Civ. No. 7-70438 (E.D. Mich. January 10, 1978). Plaintiffs have placed in issue the validity of the afore- said regulation. Although Treasury Regulations are ac- * Contra, Utility Workers Union v. Consumers Power Co., 453 F.Supp. 447, 455 n.11 (E.D. Mich. 1978). 72a Opinion, dated December 20, 1978 corded great respect and are not lightly overruled, see Bingler v. Johnson, 394 U.S. 741, 479-51 (1969), a Treasury Regulation that is inconsistent with Congressional enact- ments cannot stand. United States v. Cartwright, 411 U.S. 546, 557 (1973). A regulation will be struck down if it is inconsistent with the plain wording of a federal statute, Busse v. Commissioner, 479 F.2d 1147, 1152-53 (7th Cir. 1973), or if the regulation “conflict[s] with the philosophy and avowed purpose of legislation.” New York Shipbuild- ing Corp. v. United States, 237 F.Supp. 995, 999 (D.N.J. 1965), aff'd, 362 F.2d 551 (3d Cir. 1966) (per curiam), Thus, the existence of a regulation does not end the inquiry. First, the plaintiffs claim the Secretary of the Treasury is powerless to prescribe regulations affecting pension rights under 29 U.S.C. § 1053. This contention is without merit. Thus, 29 U.S.C. § 1202(c) provides: Regulations prescribed by the Secretary of the Treasury under sections 410(a), 411, and 412 of Title 26... shall also apply to the minimum participation, vesting, and funding standards set forth in parts 2 and 3 of subtitle B of subchapter I of this chapter. Treas. Reg. § 1.411(a)-4(a) was issued to give guidance in interpreting 26 U.S.C. § 411; and 29 U.S.C. § 1053, en- titled “minimum vesting standards,” is located in part 2 of subtitle B of subchapter I. Accordingly, the Secretary of the Treasury had the authority to promulgate a binding regulation regarding § 1053. Next to be considered is whether the aforesaid regula- tion is consistent with ERISA. The defendant’s argument that it is requires careful analysis. First, the defendant points to 26 U.S.C. § 401, which states the requirements 73a Opinion, dated December 20, 1978 for qualifying a pension plan. One requirement is that the plan be nondiscriminatory. A plan is not considered discriminatory “merely because the contributions or bene- fits .. . differ because of any retirement benefits created under State or Federal law.” § 401(a)(5). In interpreting this statute, the Internal Revenue Service has ruled that a plan could provide that worker’s compensation benefits could be offset against pension benefits without the plan being discriminatory. Rev.Rul. 68-243. Next, the defend- ant notes that Congress, in enacting ERISA, did not mod- ify of 26 U.S.C. § 401(a)(5). Also, Congress explicitly stated that it “intend[ed] that the anti-discrimination rules of present law in areas other than the vesting schedule are not to be changed.” H.R. Rep. No. 93-1280, 93rd Cong., 1st Sess., reprinted in [1974] U.S. Code Cong. & Ad. News 5038, 5058. Thus, defendant argues, because the pre- ERISA rules permitted deductions for worker’s compen- sation benefits and this policy regarding nondiscrimination was continued by Congress, it therefore follows that Treas. Reg. § 1.411(a)-4(a) is consistent with ERISA generally and with § 1053 in particular. This convoluted skein of reasoning is unconvincing. First, it is questionable that Congressional intent concerning 26 U.S.C. § 401 indicates anything at all about Congressional intent as to nonforfeitability under § 1053. See Riley v. MEBA Pension Trust, 570 F.2d 406, 409 n.3 (2d Cir. 1977). The legislative history of ERISA underscores this. Under the heading of “permitted forfeitures of vested rights,” Congress declared that “an employee’s rights, once vested, are [with certain exceptions] not to be forfeitable for any reason. An employee’s rights to benefits attributable to his own contributions may never be forfeited.” H.R. Rep. No. 93-1280, 93rd Cong., 1st Sess., reprinted in [1974] U.S. T4a Opinion, dated December 20, 1978 Code Cong. & Ad. News 5038, 5052. The report then lists a series of exceptions to the principle that an employee’s vested rights are not forfeitable. None of these exeptions mention worker’s compensation. Another difficulty with the defendant’s interpretation results from ERISA’s handling of the term nonforfeitable. 29 U.S.C. § 1002(19) provides the definition.? Under this section only the exceptions specifically included in § 1053 are consistent with nonforfeitability. Worker’s compen- sation does not appear. Only deductions included in § 1053 (a)(3) are exceptions to § 1002’s definition of nonforfeit- ability. See Riley v. MEBA Pension Trust, supra, 570 F.2d at 409; Utility Workers Union v. Consumer Powers Co., supra, 453 F.Supp. at 456; Keller v. Graphic Systems of Akron, Inc., 422 F.Supp. 1005, 1008 (N.D. Ohio 1976). Based on these cases, I must conclude it is clear that Congress expected that pension benefits would generally be nonforfeitable, and that employees would forfeit benc- fits only under narrowly defined circumstances. Regu- lations promulgated must assist in achieving this goal. See United States v. Bacto-Undisk, 394 U.S. 784 ( 1969) ; New York Shipbuilding Corp. supra. Treas. Reg. §1.411(a)- * The term “nonforfeitable” when used with respect to a pension benefit or right means a claim obtained by a participant or his bene- ficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant’s service, which is unconditional, and which is legally enforceable against the plan. For purposes of this paragraph, a right to an accrued benefit from employer contributions shall not be treated as forfeitable merely because the plan contains a provision described in § 1053(a) (3) of this title. 75a Opinion, dated December 20, 1978 4(a), by impeding the attainment of this goal, is incon- sistent with the statute. Accordingly, the defendant’s reliance on it as a source of expanding the scope of per- missible deductions from pension payments is misplaced. Section 1053 forbids the offsets found in the defendant’s plan.’ 8 The defendant makes two other arguments to sustain its posi- tion. Noting that the same phrase appears in both 26 U.S.C. § 401 (a)(5) and in 29 U.S.C. § 1082(c)(4)(A), the defendant takes this as evidence of the continued vitality of Rev.Rul. 68-243, which upheld offsets for Worker’s Compensation as not being discrimi- natory for the purposes of 26 U.S.C. § 401(a)(4), suggesting that § 1053 also allows offsets. As was said in Utility Workers Union, supra: “The language of the statute is clear and unambiguous. The reasoning of the defendant is tenuous and speculative. The Court chooses to follow the plain meaning of the statutory language.” 453 F.Supp. at 456. The defendant also refers the court to 29 C.F.R. § 2605, stress- ing the language in the definitions in subsection 2: “Pension Benefit” means a benefit payable as an annuity, or one or more payments related thereto, to a participant who permanently leaves . . . which payments by themselves or in combination with Social Security, Railroad Retire- ment, or workmen’s compensation benefits provide a sub- stantially level income to the recipient. Under this regulation, the defendant argues, the Pension Benefit Guarantee Corporation (PBGC) has authorized reducing pension benefits if worker’s compensation is provided. This regulation suffers from the same defects as does the Treasury Regulation, (Treas, Reg. § 1.411(a)-4(a), except that it is without a statutory basis and derives no support from the legislative history. 76a Opinion, dated December 20, 1978 N.J.S.A. 34:15-29 The defendant also argues that the court erred in find- ing that the New Jersey law forbidding the offsets* (L. 1977, ¢.156 § 1, eff. July 14, 1977, amending N.J.S.A. 34:15-29) was not preempted by ERISA. The Third Cir- cuit Court of Appeals recently enumerated the three grounds for preempting a state statute. In its motion for reconsideration, the defendant strongly contends that the New Jersey statute is invalid due to the second ground: “‘the nature of the regulated subject matter permits no other conclusion’ but pre-emption.” Rogers v. Larson, 963 F.2d 617, 621 (3d Cir. 1977), appeal filed, 46 U.S.1..W. 3029 (U.S. Jan. 20, 1978) (citations omitted). Elaborat- ing further, the court stated that this basis for preemp- tion existed when “the subject matter of the federal and local laws . . . must inherently either conflict or be dupli- *The defendant again argues that preemption should be found under 29 U.S.C. § 1144(a) because the New Jersey law “relates to” pension plans. The defendant cites several cases in which preemption has been found. While those cases are useful in il- luminating the Congressional intent underlying ERISA, the cases are not dispositive. “Our prior cases on pre-emption are not pre- cise guidelines in the present controversy, for each case turns on the peculiarities and special features of the federal regulatory scheme in question.” City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 639 (1973) (citations omitted). The same is also true with respect to the state regulation in question, for whether preemption by ERISA can be found will depend on the exact nature of the state laws. Compare National Carriers’ Conference Comm. v. Heffernan, 454 F.Supp. 914 (D. Conn. 1978) and Standard Oil Co. of Cal. v. Agsauld, 442 F.Supp. 695, 707 (N.D. Cal. 1977) with Stone v. Stone, 450 F.Supp. 919, 931-33 (N.D. Cal. 1978 ) and Gast v. State, 47 U.S.L.W. 1067 (Oct. 31, 1978 Oregon). The court's conclusion that the New Jersey Worker’s Compensation Law docs not “relate 10” pensions will be adhered to. See also Johnston v. Johnston, 47 U.S.L.W. 2331 (Oct. 27, 1978 California). 77a Opinion, dated December 20, 1978 cative. That is, under this test it is impossible for there to be local regulation in the subject area that does not conflict with or duplicate federal regulation.” Jd. For the purpose of analyzing preemption, this court, in its earlier opinion, assumed arguendo that ERISA did not forbid the offsets and that the New Jersey law was not on its face inconsistent with the federal enactment. If Congress had plainly declared that deductions for worker’s compensation payments were allowed, or if the New Jersey law frustrated the Congressional purpose, then the Supremacy Clause would compel the striking down of New Jersey’s law. Ray v, Atlantic Richfield Co., 46 U.S.L.W. 4200, 4201 (1978). Thus, in treating the preemption question, it will continue to be assumed that Congress has not addressed the permissibility of offsets, either to allow them or to prohibit them.’ Under this assumption, it is clear the New Jersey statute is not pre- empted, based upon the wording of the second ground of Rogers v. Larson, supra. It neither duplicates nor con- flicts with ERISA. This conclusion, aside from being compelled by Rogers v. Larson, supra, also follows from general principles of preemption. In a field historically falling within the sphere of state regulation, preemption will not be found unless a clear Congressional intent to preempt is found. Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977). As determined in my earlier opinion, that clear expression 5 Consonant with the earlier opinion, the court still views the legislative history as being one consistent with the forbidding of offsets. To the extent that this history reveals Congressional intent to be unclear, in no way can the legislative history be said to sup- port the contrary conclusion, that offsets were to be permitted. 78a Opinion, dated December 20, 1978 of intent is absent. New Jersey’s statute lies within the allowable range of police activity that gives rise to the presumption against preemption. States possess broad authority under their police power to regulate the employment relationship to protect workers within the State. Child iabor laws, minimum and other wage laws, laws affecting oc- cupational health and safety, and workmen’s com- pensation laws are only a few examples. De Canas v. Bica, 424 U.S. 351, 356 (1976) (emphasis added) After noting that the California statute challenged as being preempted belonged in the category of traditional state police powers, the Court found no preeinption unaer the preemption test that “the nature of the . . . subject matter permits no other conclusion.” Id., quoting Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963). Rogers v. Larson, supra, derives from this por- tion of De Canas its seconu ground for preemption; this shows that New Jerscy’s strong interest in worker’s compensation will be a significant factor militating against finding preemption. Another important rule in deciding preemption cases is that state and federal regulatory schemes should be harmonized, if possible. “[W]Jle may not overlook the body of law relating to the sensitive interrelationship between statutes adopted by the separate, yet coordi- nate, federal and state sovereignties.” Merrill Lynch Pierce Fenner & Smith, Inc. v. Ware, 414 U.S. 117, 127 (1973). The Court then went on to hold that California could apply its statute voiding restraints ov competition, TWa.. Opinion, dated December 20, 1978 despite the fact that the rule which the petitioner sought to enforce had been promulgated pursuant to federal statute. The Court observed that “California has mani- fested a strong policy of protecting its wage earners from what it regards as undesirable economic pressures af- fecting the employment relationship. This policy pre- vails in the absence of interference with the federal regu- latory scheme.” Jd. at 139-40. Accordingly, given that the New Jersey statute neither duplicates nor conflicts with ERISA, that Worker’s Com- pensation forms an area of strong public interest to New Jersey, see Memorandum Opinion at 9-10, and that the court is under a duty due to the nature of the federal system to try to validate proper exercises of the state police power, preemption does not exist. The offsets by the defendant are therefore barred by the “unless pro- hibited by law” clause. CoNncLUSION Upo™ reconsideration, the previous decision of this court is followed. Freperick B. Lacey United States District Judge Dated: December 20, 1978 80a Order, dated December 20, 1978 Unitep States Disrricr Courr Disrricr or New JERSEY Crvit 77-1644 Defendant having moved for reconsideration of this court’s decision of August 24, 1978, and reconsideration having been given; Ir 1s Heresy Orperep this 20th day of December, 1978 that the previous decision of this court embodied in the opinion of August 24, 1978 is adhered to. Freperick B. Lacey United States District Judge 8la Letter Opinion, dated March 28, 1979 Unrrep Stares Disrricr Courr Disrrict or New Jprsey Chambers of Frederick B. Lacey Judge United States Court House Newark N. J. 07101 March 28, 1979 Lester Weiner Associates 325 Westfield Avenue, FE. Roselle Park, NJ 0724 Carpenter, Bennett & Morrissey, Esqs. 744 Broad Street Newark, NJ 07102 Re: Buezynski v. General Motors Corporation Civil No. 77-1644 Gentlemen: Plaintiffs brought this suit challenging the defendant’s policy of offsetting workers’ compensation awards against pension payment. On August 24, 1978 this court issued an opinion granting the plaintiffs the relief they sought. This decision was adhered to in an opinion issued on De- cember 20, 1978 on the defendant’s motion for reconsidera- tion. The parties are now before the court after having made various motions concerning the form of the order. Plaintiffs move for attorneys’ fees. 29 U.S.C. § 1132(g¢) provides that the court may, in its discretion, allow rea- 82a Letter Opinion, dated March 28, 1979 sonable attorneys’ fees, This court, after having examined the affidavits submitted by plaintiff’s counsel in support of this motion, finds them deficient under the standards set by the court of appeals of this circuit. Accordingly, the plaintiff’s motion is denied without prejudice to renewal upon compliance with this circuit’s standards. Defendant moves for a stay of judgment pending ap- peal. Fed.R.Civ.P. 62(¢) provides that a district court after a final judgment granting an injunction “in its dis- cretion may suspend, modify, restore, or grant an injune- tion during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the se- curity of the rights of the adverse party.” The parties agree as to the criteria to be used in determining whether a stay should be granted—they disagree as to the result in applying those criteria to the defendant’s motion. Chief among the criteria is probability of sueceess. The issues presented in this were novel and difficult. This court con- cludes that there is at least a reasonable probability that the defendant will prevail on appeal. Accordingly, the de- fendant’s motion for a stay will be granted. Very truly yours, Frederick B. Lacey FBL:abw 88a Order, dated March 28, 1979 Unitrep States Disrricr Courr Disrrict or New JERSEY Civin No. 77-1644 The matter having come for trial before Honorable Fred- erick B, Lacey, U.S.D.J., upon the verified complaint and action for injunction of plaintiffs, Henry Buezynski and Alex Borusovie, and the class represented by them (Lester Weiner and Associates, Esqs., appearing for the plain- tiffs, and Carpenter Bennett and Morrissey, Esqs., appear- ing for defendant), and the court having certified the action as a class action, and the court having considered the tes- timony, stipulations of fact, briefs, memoranda, and argu- ments of counsel, and the court having filed a memorandum opinion on August 24, 1978 and the court having given reconsideration to its decision upon defendant’s motion for reconsideration, and the court having filed its opinion on December 20, 1978; Iv 1s Heresy Orverep that the defendant, General Motors Corporation, is hereby permanently enjoined from making any deductions from retirement pensions payable to the plaintiffs and class members pursuant to Article IV, sec- tion 2 of the General Motors Corporation Llourly-Rate Employees Pension Plan; and Ir 1s FurrHer Orverep that defendant shall pay over to each plaintiff and class member the amount of money de- ducted from his or her basic pension benefits, which bene- fits have been made payable as a result of having reached normal retirement age, (together with interest from the date of deduction) within 30 days from the date of the Order; provided that in the event this court’s judgment 84a Letter Opinion, dated March 28, 1979 that the deduction violates 29 U.S.C. § 1053 is reversed, that defendant shall pay over within 30 days from the date of the entry of this Order all sums deducted from any re- tirement benfits (together with interest from the date of deduction) on or after July 14, 1977; and Iv 1s Furraer Orpverep that the provisions of this order are stayed during the pendency of the appeal. Freperick B. Lacey United States District Judge Dated: March 28, 1979 85a Order, dated April 4, 1979 Unrirep Srates Distrricr Court District or New JERSEY Civil Action No. 77-1644 This Court having filed an Order in the above-entitled cause on March 28, 1979, and good cause appearing, Ir 1s on this 4 day of April, 1979, [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385007_0215%3A02. Public record. Not legal advice.