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March 31, 1980


The opinion of the court was delivered by: SAROKIN

Plaintiffs in this action are, with the exception of Helen Kerr, former members of Truck Drivers & Chauffeurs Union Local No. 478 ("Local No. 478") who retired from active employment on or before July 1, 1973, and who have been receiving pension benefits from defendant Local No. 478 Trucking and Allied Industries Pension Fund ("Pension Fund") since their retirement. Plaintiff, Helen Kerr, is the widow of a pensioner. Plaintiffs bring this action as a class action on behalf of themselves and all other persons similarly situated.

Defendant Pension Fund is a jointly administered, multi-employer Trust maintained pursuant to section 302 of the Labor Management Relations Act of 1947, 29 U.S.C. § 186, which was established to provide pension benefits for eligible participants working under the jurisdiction of Truck Drivers & Chauffeurs Union Local No. 478. The individual defendants are either current or former Trustees of the Pension Fund.

 This action was commenced by the plaintiffs in January 1979. The complaint alleges that in November 1973, the Trustees unlawfully decided to increase the pension benefits of those retirees who retired after July 1, 1973, more than they increased the pension benefits of retirees who retired prior to July 1, 1973. Plaintiffs have asserted three bases of federal jurisdiction under 28 U.S.C. §§ 1331, 1337; 29 U.S.C. §§ 185, 186(a), (b); and 29 U.S.C. §§ 1001-1381.

 Defendants have moved for summary judgment, alleging that first, there is no federal jurisdiction; second, there is no material fact in dispute; and third, plaintiffs have failed to state a claim upon which relief may be granted. Plaintiffs have cross-moved for class certification pursuant to Fed.R.Civ.P. 23(c)(1).


 On January 1, 1957, pursuant to the direction of a Collective Bargaining Agreement executed between the Union and various employers in Essex and Union Counties, New Jersey, an Agreement and Declaration of Trust was adopted, creating a Trust Fund for the purposes of paying or providing for the payment of retirement benefits to eligible employees and their beneficiaries in accordance with the terms, provisions and conditions of the Rules and Regulations of the Pension Plan.

 At the time the Pension Fund was established, the maximum monthly pension benefit payable to a retiree was set at $ 53.50. Throughout the following years the pension benefits increased for all retirees. In 1973, due to a number of factors alleged by the defendants, such as employer contributions, poor financial conditions, the need to fund an unfunded past service liability and the imminent passage of ERISA, the Trustees concluded that it was no longer prudent to attempt to increase the pension benefits of all retirees. Consequently, in November 1973, the Trustees authorized an increase in the pension benefits for employees retiring after July 1, 1973, to $ 455.00 per month, and an increase in the monthly pension benefit of persons who retired prior to July 1, 1973, to $ 399.00 per month. The defendants allege that financial pressures on the Pension Fund have increased in the years following the Trustees' action, which have resulted in unchanged pension benefits since 1973 to the time of commencement of this action.


 Defendants contend that there is no federal jurisdiction in this action. On the basis of the pleadings, exhibits and affidavits submitted, the Court concludes that it does not have subject matter jurisdiction for the reasons hereinafter set forth.

 Section 301 of the Labor-Management Relations Act ("LMRA") provides in pertinent part:

(a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between 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.

 29 U.S.C. § 185(a). Plaintiffs argue that the decision of the Trustees to increase pension benefits to certain retirees and not to others constitutes a breach of the collective bargaining agreement. Plaintiffs cannot cite any provision of the Collective Bargaining Agreement in effect in November 1973 which defendants have violated or breached.

 In Leskiw v. Local 1470, Int'l Bhd. of Elec. Workers, AFL-CIO-CLC, 464 F.2d 721 (3d Cir.), cert. denied, 409 U.S. 1041, 93 S. Ct. 526, 34 L. Ed. 2d 490 (1972) the Third Circuit held that where there is no allegation or involvement of violations of the collective bargaining agreement, subject matter jurisdiction is lacking under 29 U.S.C. § 185. Id. at 722. " "Congress . . . in enacting this section expressly required a breach of labor contract as a prerequisite to jurisdiction by a Federal district court.' " Id. (citation omitted); see Adams v. Budd Co., 349 F.2d 368 (3d Cir. 1965); Palnau v. Detroit Edison Co., 301 F.2d 702 (6th Cir. 1962); accord, Austin v. Calhoon, 360 F. Supp. 515, 517 (S.D.N.Y.1973); Beam v. Int'l Organization of Masters, M., & P., 511 F.2d 975, 978-79 (2d Cir. 1974).

 Plaintiffs rely upon Allied Chemical and Alkali Workers v. Pittsburgh Plate Glass Co., 404 U.S. 157, 92 S. Ct. 383, 30 L. Ed. 2d 341 (1971) for the proposition that federal jurisdiction may be based on section 301 of the LMRA. Plaintiffs assert that the pensioners have a remedy under section 301 of the LMRA when benefits are unilaterally changed. The Supreme Court, in dicta, states "vested retirement rights may not be altered without the pensioner's consent . . . The retiree, moreover, would have a federal remedy under § 301 of the Labor Management Relations Act for breach of contract if his benefits were unilaterally changed." Id. at 181 n. 20, 92 S. Ct. at 398. Said decision does not address the specific question of ...

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