decided: December 10, 1980.
WILLIAM A. MURPHY, MARVIN PEASE, WILLIAM ROGERS, EDWARD BANACHOSKI, ALBERT BETTS, WILLIAM FAHERTY, ALBERT CHRISTMAN, ROMAN KRYSINSKI, CHARLES MANJEROVIC, WALTER REGAN, JOHN AUSTIN, JR., FRANK CONIGLIO, FRANK KUSH, LAWRENCE WIESEN, JOHN CHMILL AND SIDNEY ROBINSON
THE HEPPENSTALL COMPANY, APPELLANT
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 79-0817)
Before Gibbons and Rosenn, Circuit Judges, and Hannum*fn* , District Judge.
Opinion OF THE COURT
Heppenstall Company (the employer) appeals from a grant of partial summary judgment in favor of sixteen retired Heppenstall employees (the employees). The employees sought directly from the employer the difference between the pension payments guaranteed by the Pension Benefit Guaranty Corporation (PBGC), and those provided in the pension agreement negotiated between the employer and the United Steel Workers of America (the Agreement). Finding nothing in the Employee Retirement Income Security Act (ERISA) 29 U.S.C. § 1001 et seq., to preempt contract claims against the employer for pension benefits in excess of those guaranteed by PBGC, we affirm.
I. Facts and Proceedings Below
The underlying facts are the same as in Pension Benefit Guaranty Corp. v. Heppenstall Co., 633 F.2d 293, decided by this court July 30, 1980. In the present action, 16 retired employees brought their contract-based pension benefits claim to the district court two weeks before that court issued its order terminating the employees' pension plan. Invoking 29 U.S.C. § 1132(e) jurisdiction over actions to enforce rights under a pension plan, the employees argued the terms of the pension agreement obligated the employer itself, rather than a fund or an insurer, to pay pension benefits even after termination or expiration of the agreement.
The employer moved to dismiss, urging that the pension agreement did not make Heppenstall directly liable for pension benefits to its employees, that any claim for pension benefits must either be arbitrated, or be resolved in the proceeding terminating the pension plan, and that ERISA preempts contract claims against the employer for sums in excess of those guaranteed by the PBGC. The district court denied the motion to dismiss, and granted partial summary judgment for the employees, postponing the determination of amounts due the employees, but certifying that the summary judgment of liability was a controlling question which should be reviewed pursuant to 28 U.S.C. § 1292(b).*fn1
The disputed portion of the Heppenstall-United Steel Workers' pension agreement provides:
Any benefit properly payable pursuant to this Agreement shall continue to be payable, notwithstanding the termination or expiration of this Agreement.
In the event that this Agreement is terminated, in whole or in part, the rights of any participant with respect to whom such termination shall have occurred shall, from the date of such termination or partial termination, be fully vested and nonforfeitable, subject to divestment by reason of death or operation of law, in the benefits established under the Agreement as of the date of such termination or partial termination is effective to the extent those benefits are funded by the Company in accordance with the provisions of Section 8 of this Agreement.
Section 8.1 reads:
For the purpose of supplying the pension benefits herein provided, the Company may establish or cause to be established, a pension trust or trusts or may utilize any existing trust or trusts heretofore established by or on behalf of the Company. The Company is free to determine the manner and means of making provision for funding and paying the pension benefits set forth in this Agreement.
The employer asserts the second sentence of Section 10.2 limits its direct liability to its employees. This sentence, however, added to conform to Internal Revenue Service-ERISA statutory vesting and funding standards, simply determines when participants' rights shall have vested in the event of termination of the pension plan. The "is effective" clause, on which the employer relies to limit liability, has no syntactical correspondent. Even were the verb plural, it would still fail to modify the right to receive benefits. We read the collection of clauses to mean: on the date the agreement terminates, participants' rights to benefits under the Agreement vest fully, to the extent the Company has funded the benefits, as provided in Section 8.
Read this way, Section 10.2 might at first seem to take away what it gives: participants' rights vest "fully," but if the employer fails to fund a pension trust, participants have fully vested rights in scant benefits. In fact, however, the employees have rights to benefits under the Collective Bargaining Pension Agreement, not merely under a pension trust. Section 8.1 establishes that the employer may set up a pension trust, and fund it as he wills, but the provision does not confine the employer's liability for pension benefits to a pension trust. Section 8.1, then, does not oblige the employer to fund any trust; the employer could be directly liable for all pension payments due under the Agreement. Read together, Sections 8.1 and 10.2 thus confirm the employer's continuing direct liability for post-termination pension payments.*fn2
The employer also relies on the pension Agreement's arbitration clause to maintain the employees may not bring their pension benefits claim in court. The arbitration clause, however, governs disputes concerning an employee-applicant's right to a pension, or the amount of a pension. This action does not address a dispute over these employees' rights under the pension agreement. The plaintiffs in this action are retired employees; their rights have already vested. This action instead concerns the enforceability of the Agreement's direct liability clause. If the clause is enforceable, the employees rights under it are clear.*fn3
The employer's remaining arguments center on interpretation of several sections of ERISA. The employer maintains 29 U.S.C. § 1342(f) mandates the employee's pension benefits claim be adjudicated solely in the pension plan termination proceeding. Section 1342(f) states:
Exclusive Jurisdiction; stay of other proceedings:
(f) Upon the filing of an application for the appointment of a trustee or the issuance of a decree under this section, the court to which an application is made shall have exclusive jurisdiction of the plan involved and its property wherever located with the powers, to the extent consistent with the purposes of this section, of a court of bankruptcy and of a court in a proceeding under Chapter X of Title II. Pending an adjudication under subsection (c) of this section such court shall stay, and upon appointment by it of a trustee, as provided in this section such court shall continue the stay of, any pending bankruptcy, mortgage foreclosure, equity receivership, or other proceeding to reorganize, conserve, or liquidate the plan or its property and any other suit against any receiver, conservator, or trustee of the plan or its property. Pending such adjudication and upon the appointment by it of such trustee, the court may stay any proceeding to enforce a lien against property of the plan or any other suit against the plan.
By its own terms, Section 1342(f) does not apply to this action. The employees are not suing the pension plan. They are suing the employer for the difference between payments due under the pension plan, as guaranteed by the PBGC, and payments due directly from the employer under the collectively bargained pension Agreement. The sole defendant, and the sole source of the employees' recovery in this action is the employer.*fn4
Finally, the employer asserts ERISA preempts contract claims for benefits in excess of those guaranteed by the PBGC. The employer's statutory argument is three-fold. The employer maintains 29 U.S.C. § 1144, ERISA's preemption section, limits employees' rights in pension benefits to those rights ERISA creates. The employer further argues that 29 U.S.C. §§ 1362 and 1322 place a cap on, respectively, the employer's liability for pension benefits, and the employees' right to receive employer-funded benefits. Neither the words of the statute, nor its legislative history warrant these conclusions.
29 U.S.C. § 1144 supersedes "state law relating to" a pension plan.*fn5 The employees' contract claim against the employer is not a state law claim. Rather, their claim arises under both the federal common law of labor-management contracts, and the federal common law of pension plans. Because the employees are seeking to enforce a provision of a collectively bargained pension agreement, federal common law applies. Textile Workers v. Lincoln Mills, 353 U.S. 448, 456-57, 77 S. Ct. 912, 917-18, 1 L. Ed. 2d 972 (1957) (the broad jurisdictional grant of § 301(a) of the Taft-Hartley Act, 29 U.S.C. § 185(a) authorizes creation of federal common law of labor-management contracts); Sheeran v. General Electric Co., 593 F.2d 93, 96 (9th Cir. 1977) (individual employees may bring suit in federal court for breach of collective bargaining agreement).
Moreover, except for explicitly exempted plans, ERISA wholly regulates and federalizes the pension field. Section 1144 preempts any state law relating to ERISA-covered pension plans. Furthermore, like the Taft-Hartley Act grant of jurisdiction over labor-management contracts, ERISA in Section 1132(a) and (e) confers jurisdiction over actions concerning rights and benefits under a pension plan. In enacting ERISA, Congress authorized the evolution of a federal common law of pension plans. See ERISA Conference Report, remarks of Senator Javits: "It is also intended that a body of federal substantive law will be developed by the courts to deal with issues involving rights and obligations under private welfare and pension plans." III Leg. Hist. of the Employees Retirement Income Security Act of 1974, 4771; In Re C.D. Moyer Trust Fund, 441 F. Supp. 1128, 1131 (E.D.Pa.1977) ("under ERISA's legislative scheme, this court is empowered to formulate rules of law to govern various aspects of the employee benefit field," citing Sen. Javits' remarks), aff'd without opinion, 582 F.2d 1273 (3d Cir. 1978). Thus Section 1144 does not preempt direct employer liability under a pension agreement. We must therefore determine if that liability is inconsonant with some other facet of the statutory scheme.
The employer maintains the federally insured pension benefits set out in Title IV of ERISA, 29 U.S.C. §§ 1301-81, afford employees all the pension rights to which they are entitled. Any benefits in excess of the statutory provisions, it urges, would be inconsistent with the Congressional program of limiting employer liability for pension benefits. The employer misreads the plain wording of the statute, and misconstrues the legislative purpose motivating its enactment. Sections 1362 and 1322, which the employer invokes as expressions of Congressional intent to limit employer liability, in no way address pension benefits directly recoverable from the employer. Section 1362(b) does place a ceiling on employer liability for pension payments, but that liability is to the PBGC.*fn6 Similarly, Section 1322(a), (b)(1)(2)(3) limits the pension payments employees may recover from the PBGC.*fn7 Two lower federal courts have expressly held that the limitation in Section 1362 of employer liability to the PBGC does not limit the employer's direct contractual liability to its employees. In The Matter of M & M Transportation Company, 3 B.R. 722 (S.D.N.Y.1980), Pension and Profit Sharing (P-H) P 135,497 (5/30/80); In Re Alan Wood Steel Co., 5 B.R. 620 (Bkrtcy. E.D.Pa.1978), 212 BNA Pension Reporter D-1 (10/30/78).
In Nachman Corp. v. PBGC, 446 U.S. 359, 100 S. Ct. 1723, 64 L. Ed. 2d 354 (1980), the Supreme Court reviewed Congress' concerns in enacting ERISA:
One of Congress' central purposes in enacting this complex legislation was to prevent the "great personal tragedy" suffered by employees whose vested benefits are not paid when pension plans are terminated. Congress found "that owing to the inadequacy of current minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered; that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits." ERISA § 2(a), 29 U.S.C. § 1001(a). Congress wanted to correct this condition by making sure that if a worker has been promised a defined pension benefit upon retirement-and if he has fulfilled whatever conditions are required to obtain a vested benefit-that he actually receive it. The termination insurance program is a major part of Congress' response to the problem. Congress provided for a minimum funding schedule and prescribed standards of conduct for plan administrators to make as certain as possible that pension fund assets would be adequate. But if a plan nonetheless terminates without sufficient assets to pay all vested benefits, the PBGC is required to pay them-within certain dollar limitations not applicable here-from funds established by that corporation. (footnotes omitted)
At 374, 100 S. Ct. at 1732. Under 29 U.S.C. § 1362(b), the PBGC can recover from the terminating employer up to 30% of its net worth in order to defray the costs of compensating retired employees.
The Nachman Court held that an employer's limitation of liability to sums within a pension fund did not eliminate the PBGC's guaranty of accrued, unfunded benefits. Had Nachman Corporation's interpretation prevailed, the PBGC would not have been obliged to pay pension claims, and thus could not have proceeded against Nachman for 30% of its net worth. The Court did not, however, rule that ERISA prohibited any disclaimer of direct liability. Rather, it maintained, the 30% reimbursement provision demonstrated Congress' intention to preserve employers' "right to place a contractual limit on their direct liability to their employees." At 385, 100 S. Ct. at 1738. If the employer may limit direct liability, direct liability must persist under ERISA. Otherwise Nachman would nonsensically permit restrictions on a form of liability the statute had precluded.
ERISA established "minimum standards" for pension payments due retired employees. Congress endeavored to guarantee retirees at least a portion of the payments a terminated pension plan would have afforded. It is not inconsistent with the statutory scheme to permit employees to recover directly from the employer any additional benefits to which the employer has contractually obligated itself. While the effect of permitting that additional recovery may reduce the employer's net worth, and thus decrease the amount the PBGC may recover from the employer, the PBGC in its amicus brief to this court has taken a position supporting the employees' right to recover directly from the employer. Because nothing in ERISA, nor in its legislative history, nor in the views expressed by the government corporation charged with administering ERISA-guaranteed pension payments discountenances direct contractual recovery of pension benefits from the employer, we will affirm the district court's grant of summary judgment of liability in favor of the employees.