Anderson v. John Morrell & Co.

• Decision Date: 30 September 1987
• Docket Number: No. 86-5017,86-5017
• Parties: 109 Lab.Cas. P 55,932, 8 Employee Benefits Ca 2657 John A. ANDERSON, Individually and on Behalf of All Other Persons Similarly Situated, Plaintiff-Appellant, v. JOHN MORRELL & COMPANY, and Members of the Board of Directors of John Morrell & Company, Defendants-Appellees. SD.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 872

830 F.2d 872

109 Lab.Cas. P 55,932, 8 Employee Benefits Ca 2657

John A. ANDERSON, Individually and on Behalf of All Other

Persons Similarly Situated, Plaintiff-Appellant, v. JOHN MORRELL & COMPANY, and Members of the Board of

Directors of John Morrell & Company, Defendants-Appellees.

No. 86-5017 SD.

United States Court of Appeals,

Eighth Circuit.

Submitted June 13, 1986.

Decided Sept. 30, 1987.

Charles L. Dorothy, Sioux Falls, S.D., for plaintiff-appellant.

Stanley R. Block, Chicago, Ill., for defendants-appellees.

Before JOHN R. GIBSON, Circuit Judge, FAIRCHILD, Senior Circuit Judge, ^* and MAGILL, Circuit Judge.

FAIRCHILD, Senior Circuit Judge.

Plaintiff John A. Anderson appeals on behalf of himself and the members of the class he allegedly represents from the entry of summary judgment in favor of the defendants John Morrell and Company and its Board of Directors (Morrell or the Company). For the reasons set forth below, we modify the judgment so as to affirm it only as to Anderson's individual claim.

I. FACTS

In essence, Anderson's claim is that he is entitled, as a matter of contract, to have certain health benefits added to the welfare benefit plan which is applicable to him as a retired Morrell employee.

Taken in the light most favorable to Anderson, the facts are as follows:

Anderson was first employed by Morrell in 1929 as a laborer at the Sioux Falls, South Dakota plant. He became plant superintendent in 1959, and remained in that position until promoted to operations manager in 1973. He retired January 1, 1977.

Anderson's affidavit opposing summary judgment asserts:

When he was hired from the union ranks, he was told that his salary would be based upon his performance, but his fringe benefits would always be as good as, or better than, those he would have received if he would have stayed in a union position.

.... At the time that he [Anderson] or Wear [office manager] hired anyone at John Morrell & Co.'s Sioux Falls plant, the employee was informed of the company policy that nonunion salaried employees' wages were based on their performance, but their fringe benefits would always be as good as, or better than, those provided their union counterparts.

Although Anderson refers to the Company's intention as a "policy," with the arguable connotation that it was subject to change by the choice of the Company, the gist of his present claim is that the oral representations of "policy" amounted to an offered promise, accepted by the employee's performance of work. He argues that a contract resulted, under which, whenever the Company improved benefits in the plan covering retired employees from the bargaining unit, it was obliged to make the same improvement in its plan for other retired employees.

Apparently the Company did make improvements in the plan for bargaining unit employees and prior to 1976 it made corresponding modifications in the plan for other employees. There had been, however, substantial delays (in one instance three years) between the changes in the two plans.

As of September 1, 1976, the Company made a collective bargaining agreement granting additional health benefits to already retired employees who had been in the bargaining unit. These additions, a prescription drug plan and a Medicare Supplement B plan, were not included in the plan for other retirees. Anderson had participated in the negotiations and knew of the additions. He retired January 1, 1977, and was aware then, if not before, that the additional benefits were not included in his plan.

Additions were also made to the plan covering retired bargaining unit employees in 1979 and 1983, but no corresponding changes were made in the plan applicable to Anderson. He brought this action in 1984, more than seven years after he became aware that the plan covering him at the time of retirement did not include the benefits added in 1976 to the other plan. ¹

In 1984, Anderson filed this action in South Dakota state court, alleging that the Company had breached its contractual obligations under state law to a class composed of salaried retirees who retired prior to January 1, 1980, by not providing the additional health benefits. Pursuant to 28 U.S.C. Sec. 1441 (b), Morrell removed the action to the District Court for the District of South Dakota, ² on the ground that the claim arose under the Employee Retirement Income Security Act of 1974, 29 U.S.C. Sec. 1001 et seq. (ERISA); i.e., plaintiff sought to recover and to clarify rights to future benefits for himself and the proposed class under the terms of an "employee welfare benefit plan," as defined by 29 U.S.C. Sec. 1002(1), and the defendant is engaged in interstate commerce.

Plaintiff later moved to certify the class, stating that joinder was impracticable; there were (unidentified) questions of law or fact common to all members of the class; plaintiff's claims were typical of all members (without explication); plaintiff would fairly and adequately protect and represent the interests of the class; and that the requirements of F.R.Civ.P. 23(b)(1)(A), (b)(2) and (b)(3) were met. This motion was granted on April 29, 1985. On December 2, 1985, plaintiff moved to remand the case to state court, or in the alternative to amend the complaint to plead a cause of action under ERISA.

No notice was given to other class members. Remand was denied.

On December 4, 1985, the district court granted Morrell's motion for summary judgment as to plaintiff and all class members who retired after September 1, 1976. It assumed that the Company had a longstanding policy that salaried employees would receive benefits as good as or better than those of employees represented by the Union, but that this policy was terminated on September 1, 1976, when benefits were increased for bargaining unit but not other retirees. The Company had the right under ERISA to change the policy prior to the employees' retirement, and because plaintiff retired thereafter, he and the members of the class had no contractual rights to benefits provided to bargaining unit but not to other retirees. The district court considered that there might be members of the class who retired prior to September 1, 1976, and deferred dismissal as to them for thirty days, in the event of the appearance of a possible class representative. Final judgment was entered under Rule 54(b), however, as to plaintiff and others who retired after September 1, 1976. Plaintiff now appeals, challenging the removal of the action to the federal court, and the judgment in favor of defendants.

II. RELEVANT STATE LAW WAS PREEMPTED, PLAINTIFF'S CLAIM IS GOVERNED BY FEDERAL LAW, AND REMOVAL WAS PROPER

Anderson contends that his complaint stated a cause of action under South Dakota common law. Whether or not this is so, 29 U.S.C. Sec. 1144 provides that Secs. 1001 to 1145 shall "supersede" state laws (including decisional law) insofar as such laws "relate to" an employee benefit plan of an employer engaged in commerce. The Supreme Court has emphasized the broad sweep of the preemption. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S. 724, 105 S.Ct. 2380 (1985); Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 103 S.Ct. 2890, 77 L.Ed.2d 490 (1983); Pilot Life Ins. Co. v. Dedeaux, --- U.S. ----, 107 S.Ct. 1549, 95 L.Ed.2d 39 (1987).

Anderson would distinguish between an action to recover benefits (or enforce his rights or clarify his rights to future benefits) under the terms of a plan as it exists (in which case state law is clearly preempted and the action is under Sec. 1132(a)(1)(B)) and an action to establish his contract right to have other benefits added to the plan (in which case he argues that state law applies). We think his distinction cannot stand, and conclude that principles of common law governing a claimed contract right to have the plan modified clearly "relates to" the plan and that state law in that area is preempted. Cf. Dependahl v. Falstaff Brewing Corp., 653 F.2d 1208, 1216 (8th Cir.), cert. denied, 454 U.S. 968, 102 S.Ct. 512, 70 L.Ed.2d 384 (1981) (state law claim of tortious interference with employee benefit plan preempted); Salomon v. Transamerica Occidental Life Ins. Co., 801 F.2d 659, 660 (4th Cir.1986) (state law claims for breach of contract to pay benefits and estoppel to refuse payment preempted); Authier v. Ginsberg, 757 F.2d 796, 800-01 (6th Cir.1985) (state law claim for improper discharge of employee because of conduct prompted by ERISA preempted).

The Supreme Court recently considered an action which had been filed in state court on a state law contract theory and removed to federal court. The complaint sought damages on account of refusal to pay benefits under a benefit plan. Examining the intent of Congress, the Court held that state law actions which are preempted by ERISA are removable to federal court under 28 U.S.C. Sec. 1441(a), even though federal preemption is ordinarily a defense to plaintiff's suit. Metropolitan Life Insurance Co. v. Taylor, --- U.S. ----, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); see Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 29 S.Ct. 42, 53 L.Ed. 126 (1908) ("well-pleaded complaint rule"); Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 397 n. 2, 101 S.Ct. 2424, 2427 n. 2, 69 L.Ed.2d 103 (1981). Therefore removal was proper.

III. NOTHING IN THE TERMS OF ERISA PREVENTS THE EMPLOYER FROM CHANGING AN EMPLOYEE WELFARE BENEFIT PLAN

If the "policy" of keeping the plan for employees outside the bargaining unit as good as the plan for bargaining unit employees can be treated as a "plan" by itself, the express terms of ERISA do not prevent abandoning the "plan." (Or if treated as part of the "plan" for non-bargaining unit employees, the express terms do not prevent eliminating that part.) Anderson does not suggest the contrary, and we are satisfied that analysis of the "policy" as a "plan" would not help him.

In enacting ERISA, Congress made specific...