Valerie J. ACKERMAN, Chester O. Adams, Anne E. Alexander, Barry M. Allmond, Helen L. Anders, Marlene Archey, Mary H. Auker, Frances C. Balestino, Pauline Balestino, Thomas L. Ballos, Barney W. Barndollar, Elaine Barnes, Bertha L. Barnhill, James E. Becker, Linda Becker, Mark A. Becker, Katherine L. Bem, William F. Black, Diane Blanchard, Timothy Bowser, Barbara Brocious, Janette C. Buzzella, Daniel R. Campbell, Barbara C. Carney, David Castle, Paul M. Clack, Ronald Clapper, Darlene R. Clark, Joyce Ann Conrad, Karen Joy Consalvo, Evelyn Conte, Carol J. Corbin, Anna M. Costlow, Helen Creamer, Amporn Y. Cuff, Shirley Cunningham, Hilda D‘Amata, Melissa K. Daugherty, Judith G. Davis, Twila Davis, Mary Louise Dawson, Walter E. Dempsie, Deborah L. Deyarmin, Gary L. Dick, Phyllis I. DiTosti, Charlotte Dixon, Deborah G. Dugan, Thomas Edmiston, Gordon M. Ellis, Helen Erickson, Helen F. Fanelli, Paul Ferguson, Renee Figait, Elizabeth C. Fleck, Gary P. Frederick, Roberta J. Frew, David G. Frey, Rupert Friedenberg-ger, Shirley A. Fudalski, Derwin D. Gilbert, Jr., Brenda Greenleaf, Ida Gristina, Steve Gristina, Gilda M. Hammer, Patricia Hartzell, Barbara D. Helsel, Leslie E. Hildebrand, Karen S. Holmberg, Anita F. Hoover, Lucy Horton, Joan B. Ickes, Penelope Ickes, Shirley Ann Ickes, Glenna D. James, Sue Ellen Jensen, Diane Kelley, Soonja Kelly, Alice Lawrence, William H. Leedy, Dale E. Lenning, Agnes E. Lidwell, William S. Luther, Virginia Lynam, Mary L. Maidl, June Martino, Dawn M. Masic, Doris H. Massaro, Eugene A. Massaro, Kathy L. Mast, John L. McClosky, James F. McDermitt, Jr., Donald E. McMasters, Francis R. Mentzer, Howard S. Mentzer, Terrance Mentzer, Donnis Miller, Richard Miller, Ruth A. Miller, James W. Morning, Donald M. Myers, Shirley Louise Myers, Jack E. Neely, Scott E. Neelly, Denise K. Neil, Wesley C. Noye, II, Shirley L. Nyiri, Sean M. O‘Connor, Mark E. Oswald, Jane Ozio, Elsie K. Parsons, Joan L. Patterson, Sheryl A. Patterson, Dansie Pearson-Lightner, Shirley J. Pero, Walter M. Phillips, Marjorie Grace Pierce, Diana M. Prosser, Eugene Quarry, Santina Radazzo, Mark A. Reagan, Bonnie Jean Rhodes, Donna E. Rhodes, Thomas Leo Rhodes, Jr., Gerald P. Richards, Harry W. Rickabaugh, Gary Lee Roudabush, Mary F. Russo, Steven Sager, Pamela M. Sarvis, Kenneth Showalter, Jr., Minnie Showalter, Sandra L. Showalter, Susan K. Showalter, Mary J. Sill, George Simpson, Barry L. Siters, Rose Marie Skipper, E. Kirby Smeigh, Joann Smith, Robert W. Snowberger, Theresa Snowberger, Joseph C. Snyder, Teresa Soldenwagner, John Stevens, Dawn Sturgill, Carol Sumner, Kathleen A. Sweitzer, Richard M. Sweitzer, Judith L. Swires, John L. Taylor, William M. Taylor, Lester R. Thompson, Sharon Thompson, Mary Ann Trexler, Steven J. Vasas, Dolores G. Verbonitz, Katherine Waite, Barbara F. Walter, Robert E. Walter, Scott A. Walter, Michael E. Weaver, Veda S. Wertz, Richard M. Weston, Kay Weyandt, Jay Wible, Donald A. Wolfe, Janet R. Wolfe, Diane J. Woomer and Margaret Yantim, Appellants, v. WARNACO, INC.
No. 94-3527.
United States Court of Appeals, Third Circuit.
Argued March 28, 1995. Decided May 15, 1995.
George E. Preonas (argued), Seyfarth, Shaw, Fairweather & Geraldson, Los Angeles, CA, for appellee.
Before MANSMANN, COWEN and LEWIS, Circuit Judges.
OPINION
COWEN, Circuit Judge:
Plaintiffs, 169 former employees of defendant Warnaco, Inc. (“Warnaco“), appeal from an order of the district court that granted summary judgment in favor of Warnaco and denied plaintiffs’ cross-motion for partial summary judgment as to liability on plaintiffs’ claims for termination benefits pursuant to an employee benefit plan. Plaintiffs claim on appeal that the district court erred by concluding that a complete rescission of a welfare plan does not implicate the amendment procedures required by section 402(b)(3) of the
Plaintiffs also assert on appeal that the district court erred by: (1) failing to void a change to Warnaco‘s employee benefits plan that eliminated the plan‘s termination allowance policy where the plaintiffs did not receive adequate notice of this change; and (2) concluding that no genuine issue of material fact existed as to whether Warnaco intentionally misled the plaintiffs by not timely disclosing the elimination of the termination allowance policy. Subsequent to the district court‘s decision in this matter, and while this appeal was pending, the Supreme Court decided the case of Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 115 S. Ct. 1223, 131 L. Ed. 2d 94 (1995). In light of the Supreme Court‘s decision in that case, and because we conclude that there are genuine issues of material fact in dispute, we will remand this matter to the district court for further findings of fact.
I.
Plaintiffs worked in production positions at Warnaco‘s Altoona, Pennsylvania plant, where Warnaco manufactured various types of fashion apparel. In January of 1988, Warnaco published an “Employee Handbook” (the “1988 Handbook“) and distributed it to all of its employees, including the plaintiffs. The 1988 Handbook described the company‘s termination allowance policy as follows:
Warnaco hopes that economic circumstances never makes [sic] it necessary to eliminate any jobs within the Company. Should this unfortunate circumstance occur, however, you may be eligible for a termination allowance. For example, you may be eligible if Warnaco eliminated your job to achieve long-term savings to the Company. A condition of eligibility is that the employee sign an agreement to release Warnaco from liability for employment-related matters.
In some cases, loss of employment will not make you eligible for a termination allowance. For example, you will not be entitled to an allowance if termination of your employment occurs as a result of death, retirement, resignation, or discharge for misconduct or poor performance. Entitlement to a termination allowance may also be affected if you receive any other termination or disability pay. Furthermore, you will not be entitled to a termination allowance if, at or about the time of termination of your employment with Warnaco, Inc., you are offered employment with Warnaco, Inc. or any affiliate or subsidiary of Warnaco, Inc., or any purchaser of Warnaco assets, at a salary not substantially less than your last current salary at Warnaco, Inc. You will also
not be entitled to a termination allowance if, prior to termination of your employment, management has altered or rescinded this termination allowance policy. Eligible employees are entitled to receive a termination allowance of one week pay for each completed year of service, with a minimum of termination allowance of two weeks.
App. 116a-17a (emphasis added).
In a memorandum dated December 26, 1990, Stanley Silverstein, the Secretary and Assistant General Counsel of Warnaco, stated that, “effective immediately, the Termination Allowance Policy referred to in the Warnaco Employee Handbook, has been rescinded. Employees separated from the employment of Warnaco on and after December 19, 1990 will not be eligible for any termination allowance.” App. at 120a. This memorandum also directed that meetings be scheduled to communicate this change to all employees. Id.
Plaintiffs contend that while one of Warnaco‘s vice presidents met with employees at the Duncansville, Pennsylvania warehouse and advised them of the rescission of the termination allowance policy, no such meeting was ever held with employees at the Altoona plant. Further, plaintiff Francis Mentzer avers that Warnaco did not give written or oral notice that the termination allowance policy was being rescinded until a meeting was held on January 22, 1992 to discuss issues raised by the closing of the Altoona plant. At that meeting, plaintiffs assert, employees questioned Warnaco Vice President Richard Mitchell as to whether they would be receiving the severance benefits provided for in the 1988 Handbook, and he informed them that no such benefits would be paid.
Warnaco claims, and plaintiffs do not dispute, that sometime in 1991, it published an updated Employee Handbook (the “1991 Handbook“) reflecting the elimination of the termination allowance. Further, it is undisputed that Warnaco President and Chief Executive Officer Linda Wachner, by letter dated January 16, 1991, advised employees about unfavorable economic times, and stated, “it has been necessary for us to take certain measures to protect the 11,800 members of our Warnaco family. While such things as a salary freeze and changes in our severance policy are difficult, they represent the kind and quality of tapestry that we must weave to strengthen our company.” App. at 155a (emphasis added). Plaintiff Mentzer acknowledges receipt of this letter, which he describes as “vague,” and without reference to any rescission of the termination allowance policy.
No reference is made in the 1991 Handbook, or elsewhere in the record, to the procedure that was followed in eliminating the termination allowance or the precise date such action was accomplished. More important, while plaintiffs concede that Warnaco began distributing the 1991 Handbook to new employees at other locations in 1991, plaintiffs allege that no employees at the Altoona plant ever received a copy of this updated handbook. Warnaco failed to produce any evidence that it distributed the 1991 Handbook to employees at the Altoona plant.
Warnaco shut down its Altoona plant in early 1991, and terminated the plaintiff employees at different times from October 1991 through January 1992. In light of Warnaco‘s refusal to pay severance benefits, the plaintiffs filed suit against Warnaco in the United States District Court for the Western District of Pennsylvania alleging violations of
Plaintiffs relied heavily on our decision in Schoonejongen v. Curtiss-Wright Corporation, 18 F.3d 1034 (3d Cir. 1994), rev‘d, 514 U.S. 73, 115 S. Ct. 1223, 131 L. Ed. 2d 94 (1995) in presenting their appeal. Following the Supreme Court‘s decision in that matter, which reversed our prior panel decision, we ordered supplemental briefing on the question of the effect of the Schoonejongen case on the instant appeal. We recognize, of course, that the district court did not have
II.
The district court exercised jurisdiction in this matter pursuant to
III.
The plaintiffs’ first claim is that the district court erred by concluding that a complete rescission of a welfare plan does not implicate the amendment procedures required by section 402(b)(3) of ERISA. Plaintiffs assert that it is illogical to suggest that while changes to a benefit plan which reduce benefits must follow the procedure outlined in section 402(b)(3), changes that totally eliminate plan benefits do not require such a procedure. Further, plaintiffs assert that the district court misinterpreted dicta in Schoonejongen, 18 F.3d at 1040, in reaching its erroneous conclusion.
We exercise plenary review over the district court‘s rulings concerning statutory construction. United States v. Barel, 939 F.2d 26, 31 (3d Cir. 1991). Section 402(b)(3) of
Warnaco asserts, and the district court agreed, that language in our previous decision in Schoonejongen supports the view that a complete rescission of an employee benefit plan does not implicate the requirements of section 402(b)(3). Warnaco and the district court point to a passage in that decision where we stated:
Alternatively, [the employer] suggests that we should sustain the November 1983 announcement as a termination of its entire welfare benefit plan and the institution of a new plan without benefits for the retirees of the Wood-Ridge plant. It points out that it reserved the right to terminate its plan as well as amend it and that § 402(b)(3)‘s requirement of a plan provision specifying a process for amendments does not apply to plan terminations. Because [the employer] could have terminated its entire plan without implicating § 402(b)(3) and could then have instituted
a new plan without benefits for the Wood-Ridge retirees, [the employer] insists that it should be held to have accomplished the same result in “one step rather than two.” We are unpersuaded.
Schoonejongen, 18 F.3d at 1040-41 (emphasis added). According to Warnaco and the district court, this passage indicates that a complete rescission of a welfare benefit plan does not implicate the requirements of section 402(b)(3).
We are unpersuaded by such reasoning. As a preliminary matter, our decision in Schoonejongen has been reversed by the United States Supreme Court, albeit not on the precise issue discussed in this passage. Schoonejongen, 514 U.S. at 73, 115 S. Ct. at 1231 (reversing the prior decision of our Court). More important, however, in this passage we were merely describing an argument of the employer. We were not setting forth a rule of law or even providing persuasive dicta. Because it is improper to give precedential weight to a mere characterization of a party‘s argument, we find that Warnaco‘s argument lacks merit. Accordingly, we will reverse the order of the district court granting summary judgment in favor of Warnaco and remand for further proceedings consistent with this opinion.
On remand the district court must determine whether Warnaco complied with section 402(b)(3). We pause briefly to provide certain directions. The plaintiffs assert that Warnaco failed to comply with section 402(b)(3) because it failed to identify specifically the entity with the authority to alter plan benefits. Warnaco counters that it expressly reserved the right of “the management” to alter or rescind the termination allowance policy, and that “the management” is sufficiently specific to comply with section 402(b)(3).
In our previous decision in Schoonejongen, we determined that designating “the Company” as the entity with authority to amend a benefits plan was not sufficiently specific to comply with section 402(b)(3). Schoonejongen, 18 F.3d at 1039. The Supreme Court granted certiorari on this precise issue, however, and determined that designating “the Company” as the entity with authority to alter the plan satisfied the requirements of section 402(b)(3). Schoonejongen, 514 U.S. at 78-79, 115 S. Ct. at 1228-29. The Court reasoned that designating “the Company” is sufficiently specific because principles of corporate law provide a ready-made set of rules for determining who has authority to make decisions on behalf of the company. Id. at 79, 115 S. Ct. at 1229. The Court also explained that the literal terms of section 402(b)(3) are ultimately indifferent to the level of detail in the identification procedure. Id. Although it is a close question, in light of the Supreme Court‘s decision, we conclude that designating “the management” as the entity with authority to alter the plan satisfies the requirements of section 402(b)(3).2 Accordingly, on remand the issue to be determined is whether Warnaco‘s valid amendment procedure was complied with in this case. The answer will depend on a fact-intensive inquiry into whether Warnaco‘s management actually approved the new plan provision rescinding the termination allowance policy.
IV.
Plaintiffs next argue that even if the rescission to the termination allowance policy was properly adopted, the district court erred by failing to void this rescission where the plaintiffs’ did not receive adequate notice of the change. Plaintiffs assert that each affected employee is entitled to written notice of such rescission. According to plaintiffs, the 1991 Handbook evidencing the deletion of the termination allowance policy was not distributed at the Altoona plant at which they worked, and meetings were not held at the Altoona plant to advise the employees of this change.
Warnaco counters that
The district court based its decision on Warnaco‘s final contention, that even if the plaintiffs did not receive notice, this procedural defect does not give rise to a substantive remedy. Relying on Hozier v. Midwest Fasteners, Inc., 908 F.2d 1155, 1170 (3d Cir. 1990) and Berger v. Edgewater Steel Co., 911 F.2d 911, 921 (3d Cir. 1990), cert. denied, 499 U.S. 920, 111 S. Ct. 1310, 113 L. Ed. 2d 244 (1991), the court determined that the caselaw of this circuit teaches that substantive remedies are generally not available for such violations. Ackerman, No. 93-101J, slip. op. at 10. The court explained that while monetary relief is sometimes available in “exceptional cases” or if “extraordinary circumstances” are present, there was insufficient evidence of such circumstances in this case to warrant relief. Id. at 10-11.
In Schoonejongen, the Supreme Court described a number of ERISA‘s core requirements and goals. 514 U.S. at 76-78, 115 S. Ct. at 1230-31. As the Court recognized in that case,
ERISA requires that if there is a modification or change in a summary plan description,3 a summary of this modification or change must be furnished to each plan participant not later than 210 days after the end of the plan year in which the change is adopted.
Warnaco acknowledges that not all of its employees received notice of the rescission of the termination allowance policy within 210 days of the end of the plan year in which the change was adopted.5 Warnaco,
We have repeatedly held that under ordinary circumstances defects in fulfilling the reporting and disclosure requirements of
V.
The plaintiffs’ final contention is that the district court erred in determining that no genuine issue of material fact existed as to whether Warnaco intentionally misled the plaintiffs by not timely disclosing the elimination of the termination allowance policy. According to the plaintiffs, even though substantive remedies are generally not available for an employer‘s violation of ERISA‘s reporting and disclosure violations, the remedy of striking a plan amendment is available where an employer is guilty of bad faith or active concealment with respect to a substantive plan change. The plaintiffs point to the fact that meetings that were scheduled to inform the plaintiffs of the change in policy were never held, the fact that the 1991 Handbook was never distributed to the Altoona employees, and the fact that a letter of January 16, 1991 from Warnaco‘s CEO spoke of “changes” in (rather than the elimination of) the severance plan, to support their view that Warnaco was actively concealing the elimination of the severance policy in order to induce workers to stay at their jobs.
As we discussed above, substantive remedies are generally not available for violations of ERISA‘s reporting and disclosure requirements. See Hozier, 908 F.2d at 1169-70; Berger, 911 F.2d at 921. We have, however, recognized the possibility of a remedy where the plaintiff can demonstrate the presence of “extraordinary circumstances.” See
At oral argument, Warnaco described its failure to distribute the 1991 Handbook to affected employees at the Altoona plant, its failure to hold scheduled meetings with Altoona employees, and its issuance of a letter concerning “changes” in the severance policy, as mere bureaucratic “bungling.” While we do not rule out the possibility that administrative error accounted for Warnaco‘s omissions, we conclude that a reasonable fact finder could infer from these facts and from the plaintiffs’ evidence regarding the employment climate at the Altoona plant that Warnaco actively concealed the change to its severance policy in order to prevent employees at the Altoona plant from leaving. Under such circumstances, we conclude that it would be inappropriate to deprive the plaintiffs of the remedy of voiding Warnaco‘s rescission of the termination allowance policy.8 Accordingly, we will reverse the district court‘s grant of summary judgment in favor of Warnaco, and remand for further findings on this disputed factual issue.9
CONCLUSION
Because we find that a complete rescission of a benefit plan does implicate the requirements of section 402(b)(3) of ERISA, we will reverse the order of the district court. Upon remand the district court must determine whether Warnaco complied with its otherwise valid procedure for altering plan benefits. With respect to Warnaco‘s alleged reporting and disclosure violations, we will reverse and remand this case for a determination as to whether Warnaco acted in bad faith, or actively concealed the rescission of the termination allowance policy.