Kitchens v. Atlantic Steel Co., 46129

• Decision Date: 30 April 1971
• Docket Number: No. 46129,No. 2,46129,2
• Citation: 182 S.E.2d 530,123 Ga.App. 812
• Parties: , 78 L.R.R.M. (BNA) 2206, 65 Lab.Cas. P 11,726 Tommy L. KITCHENS v. ATLANTIC STEEL COMPANY
• Court: Georgia Court of Appeals

Page 530

182 S.E.2d 530

123 Ga.App. 812, 78 L.R.R.M. (BNA) 2206,

65 Lab.Cas. P 11,726

Tommy L. KITCHENS v. ATLANTIC STEEL COMPANY.

No. 46129.

Court of Appeals of Georgia, Division No. 2.

April 30, 1971.

Rehearing Denied May 24, 1971.

Certiorari Granted July 15, 1971.

Syllabus by the Court

There being no words of forfeiture of pension rights in the collective bargaining contract here under consideration, none will be implied. The pensioner in this instance, if otherwise qualified for pension rights, could not be deprived thereof by being discharged before applying for the pension benefits.

William L. Horton, Atlanta, for appellant.

Jones, Bird & Howell, C. Dale Harman, Atlanta, for appellee.

EVANS, Judge.

Tommy L. Kitchens was employed by Atlantic Steel Company under the terms of a collective bargaining contract negotiated by a union for the benefit of all employees and the employer. After Kitchens had worked for this company for 22 years, he was discharged, and thereafter he applied for pension benefits as provided for in the written contract of employment. The trial court, on a stipulated statement of facts, decided in favor of the employer, and the employee appeals to this court.

The specific provision of the employment contract which Kitchens contends applied to his situation is the following language therein, to wit: 'Any employee who shall have had at least fifteen but less than thirty years continuous employment and who shall have attained the age of sixty shall be eligible to retire at his sole option, and shall upon his retirement be entitled to receive a special retirement payment as provided in Section 7 and to elect as provided in Section 6(d) either:

'(i) a deferred monthly amount with right to payment commencing after attainment of age sixty-five; or

'(ii) an immediate reduced monthly amount.' (Early Retirement Plan, Section 4(a)(1).

There was ample evidence in the record to show the employee, when discharged, had attained the age of more than 61 years. However, the lower court made no finding on the question of age, and this is a matter which cannot be passed on here, but must be passed on by the trial court.

But the employer contends the employee forfeited his right to pension by being discharged before applying for pension benefits. In other words, the employer contends that it had the right not only to discharge the employee from his job, but to impose upon him an additional penalty of rubbing out pension benefits to which he had become entitled through working for the company for 22 years; and that in one fell swoop it could seize upon an act of misconduct by the employee and effect both his discharge and pension-forfeiture.

If such right inheres in the employer, it must be plainly stated in the written contract; it must be 'so nominated in the bond.'

The written contract defines the term 'employee' and the term 'pensioner' as follows: '(d) The term 'employee' means a person who is an active, full-time employee of the company within said Bargaining Unit; (e) The term 'pensioner' means an employee who shall have become, or shall be, eligible for and entitled to a pension under the provisions of this Pension Plan.'

The employer's brief asserts: 'This is an optional plan and must be elected by an employee in good standing who meets the time of service requirements.'

The written contract in this case is contained in 'Agreement'; 'Pension Plan' and 'Collectively Bargained Contract.' There is not a word in the contract which states that such election must be by an employee 'in good standing.'

The contract nowhere spells out any provision for forfeiture of pension rights. To the contrary, time and again it provides for penalties to be imposed by the employer and the greatest penalty specified is discharge. For instance, the contract provides 'It is understood that any employee who shall participate in any work stoppage while this contract is in effect will be discharged or otherwise disciplined.' Again, on excessive absenteeism, it is provided that for the third offense the 'employee be discharged.'

And on the same page three unexcused absences 'shall be cause for discharge.' It is highly significant that the disciplinary rights of the employer are not shown to include the right to forfeit pension. The employer quotes from the contract as follows: 'Termination of Seniority. Continuous employment will be broken, and all rights based upon seniority will be terminated: (a) when an employee quits or resigns; or (b) when an employee shall be discharged in accordance with the provisions of Section 2.6 'Absenteeism' or Article 8 'Suspension and Discharge' of this contract; * * *' (Emphasis supplied).

The employer argues that as the quoted language authorizes the termination of all seniority rights if the employee is discharged, and as pension rights are fringe benefits arising under seniority rights, by implication, the...