Rosen v. Public Service Electric and Gas Company

• Decision Date: 24 May 1971
• Docket Number: Civ. A. No. 245-66,955-68.
• Citation: 328 F. Supp. 454
• Parties: Leo ROSEN et al., Plaintiffs, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Defendant. Morgan SWEENEY and Utility Co-Workers Association, Plaintiffs, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Defendant.
• Court: U.S. District Court — District of New Jersey

328 F. Supp. 454

Leo ROSEN et al., Plaintiffs, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Defendant.

Morgan SWEENEY and Utility Co-Workers Association, Plaintiffs, v. PUBLIC SERVICE ELECTRIC AND GAS COMPANY, Defendant.

Civ. A. Nos. 245-66, 955-68.

United States District Court, D. New Jersey.

August 25, 1970.

On Rehearing November 24, 1970.

Supplemental Opinion May 24, 1971.

COPYRIGHT MATERIAL OMITTED

George Duggan, Newark, N. J., for plaintiffs.

Luke A. Kiernan, Jr., Newark, N. J., for defendant.

OPINION

WORTENDYKE, District Judge:

Both of the captioned cases were instituted under the Civil Rights Act of 1964, 78 Stat. 241, § 703(a) (1), 42 U. S.C. § 2000e-2(a) (1). Both cases require a determination of whether or not a non-contributory pension fund, which treats males and females differently, violates the provisions of 42 U.S.C. § 2000e-2. In the first of these actions (C. 245-66) this Court, on March 19, 1968, entered an Order for summary judgment, from which the plaintiffs in that cause appealed to the United States Court of Appeals for the Third Circuit. The judgment appealed from was vacated and the cause remanded to this Court for further proceedings consistent with the Opinion of the Appellate Court. Its decision of April 1, 1969 is reported in 409 F.2d commencing at page 775. The Appellate Court directed that this Court

"* * * insofar as the original complaint is concerned, determine * * whether any of the named appellants and any other male members of the union, may have retired between the date of the initial 1965 charges before the EEOC and the May 1, 1967 change, and thus may have been harmed by the alleged discrimination in the pension benefit formula;"

and stated that

"Such a finding * * * would require the court to rule on whether the original pension plan, prior to its modification, violated Title VII of the Civil Rights Act of 1964."

The same Opinion concludes that

"* * * if no male employee was harmed by the pre-May 1967 pension plan, that should dispose of the original complaint and injunctive relief is unnecessary."

Pending the decision of the Court of Appeals in Civil 245-66, Morgan Sweeney and Utility Co-Workers Association, as plaintiffs, instituted an action in this Court (Civil 955-68) against the same defendant in the case then on appeal. That action came to issue upon the answer of the defendant, filed October 29, 1968, and the Court of Appeals took notice of the pendency of that more recent action. At page 782 of its Opinion the Court of Appeals stated that

"* * * we have already noted that a second suit has been filed duplicating the charge that the modified pension plan violates Title VII. Because this second suit has not yet been disposed of, and because it deals with precisely the same substantive issues as the amendment to the original complaint, we deem it unnecessary to determine whether the grant of summary judgment as to that portion of the first complaint was in error.¹ It was suggested at oral argument that consolidation of the two actions, i. e., the original complaint as amended and the second complaint, would be sought if this court directed a remand. We believe that this would be the proper procedure to follow and that upon such consolidation the issues involved in the initial complaint, the amendment thereto, and the second complaint, can be sifted out and disposition made of them.², and³.

Pursuant to the mutual undertakings of counsel at the joint conference on October 20, 1969, in both cases, a stipulation of facts and agreement of the parties was filed in the consolidated actions on June 17, 1970. By the terms thereof the parties "agree to submit the above matters on the foregoing Stipulation and the Briefs of the attorneys for the respective parties, without oral argument." In that Stipulation the following facts appear:

Defendant is a public utility corporation existing under the laws of the State of New Jersey, engaged in the manufacture, sale and distribution of gas and electric energy, with its principal place of business in the City of Newark, New Jersey.

Plaintiff Utility Co-Workers Association (Union) is an independent union having its office in the same City and duly certified by the National Labor Relations Board as the collective bargaining representative for certain employees in all of defendant's commercial offices on January 10, 1949.

On January 10, 1911 defendant instituted a welfare plan for all of its employees. That plan included a retirement or pension plan, non-contributory in character, i. e., involving no contribution thereto by employees. Attached to the Stipulation and marked joint exhibit No. 1, is a copy of the negotiated collective bargaining agreement between the parties, dated June 21, 1965, effective May 1, 1965, which includes the negotiated supplementary agreements respectively effective May 1, 1967 and May 1, 1969. There is also attached to this Stipulation, and bearing exhibit No. 2, a copy of the pension plan in effect prior to May 1, 1967 as well as a copy of the pension plan as modified or revised effective from May 1, 1967, marked joint exhibit No. 3.

Between July 1, 1965 and May 1, 1967 there were early retirements on pension by some male employees, members of the plaintiff Union, as well as during the period from May 1, 1967 to the date of the Stipulation.

At the time of the institution of C. 245-66 by Rosen, Sweeney and the Union on March 10, 1966, and since 1911, male employees were eligible for retirement at age 65, with 25 years service, and with mandatory retirement at age 70. Male employees were eligible for retirement at age 60 with 30 years service at a reduced pension. The female employees during the same period could retire, without reduction in pension, at age 60 with 20 years service and mandatory retirement at age 65.

At the time of the institution of C. 245-66 the plaintiff Union and the defendant were parties to a then current labor agreement which, by its terms expired on April 30, 1967. On January 24, 1967 plaintiff Union and defendant commenced collective bargaining negotiations for certain revisions of the existing Pension Plan. Those negotiations ripened into a new labor agreement which replaced the agreement which would expire on April 30, 1967. That new agreement was duly ratified by the membership of the Union and executed by the parties thereto on July 17, 1967, effective retroactively from May 1, 1967. That agreement included the following provisions:

"Section 3. Normal Retirement for Age

(1) Each employee may at his or her option retire at age sixty-five or thereafter, and must retire at age seventy.

(2) Each employee who retires under the provisions of this Section 3 shall be paid for life, in monthly installments, a pension computed at the annual rate of 1% of the average annual compensation of such employee for the five years of highest earnings within the last ten years of the employee's service, multiplied by the number of years, and any fraction of a year, of the employee's service.

Section 4. Early Retirement

(1) Each employee may at his or her option retire at age sixty or thereafter but before attainment of age sixty-five upon completion of twenty years of service.

(2) Each employee who retires under the provisions of this Section 4 shall be paid for life, in monthly installments, a pension computed at the annual rate of 1% of the average annual compensation of such employee for the five years of highest earnings within the last ten years of the employee's service, multiplied by the number of years, and any fraction of a year, of the employee's service, and reduced by one-quarter of 1% for each month that such employee is less than age sixty-five at the time of retirement, and by an additional one-quarter of 1% for each month that such employee is less than age sixty-two at the time of retirement, except that in the case of a female employee who retires under the provisions of this Section 4, no reduction in the amount of the pension shall be made on account of service prior to May 1, 1967."

The Union and the defendant commenced further collective bargaining negotiations for a new agreement on April 1, 1969. That agreement, which was duly ratified by the union membership, became effective for the period May 1, 1969 to April 30, 1971. By its terms the parties agreed "to permit a vesting of the pension benefits for any member whose service with the company is terminated for any reason and who has attained the age of 50 and completed at least 15 years of service."

Plaintiff Rosen retired from his employment with the defendant on September 9, 1966 at the age of 65 with full pension.

The parties stipulated that this Court has jurisdiction to hear and determine the issues involved in the above captioned cases upon the record herein consisting of the items contained in the stipulation, all pleadings filed in the captioned cases, the exhibits, if any, attached thereto, and the pretrial conference orders. Counsel for the respective parties agreed that they might refer to and use excerpts from the Congressional Record relating to the Civil Rights Act of 1964 and any matters related thereto.

Inland Steel Co. v. National Labor Relations Board, 170 F.2d 247 (7 Cir. 1948), cert. granted 336 U.S. 960, 69 S.Ct. 887, 93 L.Ed. 1112 (1949), affirmed Ameri-Douds, 339 U.S. 382, 70 S.Ct. 674, 94 can Communications Assn., C.I.O. v. L.Ed. 925, held that "a retirement and pension plan is included in `conditions of employment' and is a matter for collective bargaining" and that the employees' retirement and pension plan was part of the subject matter of compulsory collective bargaining within the meaning of the National Labor Relations Act. The Court, at page 250 of the Opinion in Inland Steel, stated that section 8(a) (5) required an employer to bargain collectively with the representative of his employees, subject to the provisions of Sec. 9(a) which provides that the duly selected...