WINN-DIXIE STORES, INC. v. N.L.R.B., 575 F.2d 1107 (5th Cir. 1978)

The Board found that the company plan mandated: (1) that employees covered by a union pension plan could not continue to participate in the company plan, and (2) that employees covered under a union pension plan must forfeit any account they already have under the company plan. Thus, according to the Board, just as the company's refusal to bargain over continued coverage under the company plan along with coverage under the new union plan was based on clause 2.4(b), the company's refusal to bargain over what would happen to existing employee accounts was likewise based on clause 2.4(b) and other clauses in the plan. While we have found substantial evidence on the record to support the Board's position as to the company's refusal to bargain over double coverage, the record does not present substantial evidence to support the finding that the provisions of the plan mandated forfeiture of existing accounts or that the company violated its duty to bargain by insisting on forfeiture.

In its brief, the Board cites several clauses in the plan, namely sections 7.3(d) and (e) and 7.4,[4a] dealing with forfeiture of vested or partially vested accounts. Article VII, clause 7.3(d) provides that if a participating employee voluntarilyterminates his employmentor is discharged by his employer for conduct detrimental to the best interest of his employer and that employee is less than 35 years old, his entire account is forfeited. Clause 7.3(e) provides that all amounts forfeited by thetermination ofemploymentare to be allocated to the accounts of employees who continue to participate in the plan. Section 7.4 provides that if the company discharges an employee for theft, embezzlement or other dishonesty, his account will be forfeited and allocated in a manner identical to that provided for by section 7.3(e). These forfeiture provisions obviously do not apply in circumstances, such as those here, where an employee becomes covered under a union pension plan. Furthermore, in Article II, which defines the terms used in the plan, "forfeiture" is defined as "that portion of the account of a withdrawn employee to which he shall not be or become entitled." A "withdrawn employee" is, in turn, defined in section 2.13 as "a participating employee whose employment has been terminated prior to his death, disability or retirement . . . ." Thus, the plan deals with forfeiture only in the context of employees who no longer work for the company. In sum, the plan says nothing about forfeiture of existing accounts of employees who become covered by a pension plan as a result of collective bargaining.

Section 7.3—Partially Vested Accounts

In the event that a participating employee voluntarily terminates his employment or is discharged by his employer for conduct which, in the sole discretion of the Committee, is detrimental to the best interest of his employer (except as modified by Section 7.4 below) the amount then standing to the credit of his accounts shall be used and disposed of as follows:

(d) If such employee has not attained age thirty-five (35), the entire amount or value of his account shall be forfeited.

(e) All amounts forfeited by the termination of employment of any employee shall be allocated and credited to the accounts of the participating employees of his Employer as herein above provided.

Section 7.4—Forfeited Accounts

In the event that any participating employee is discharged by his Employer for theft, embezzlement or other dishonesty, and the Employer shall submit to the Committee a written confession by such employee or shall submit to the Committee proof satisfactory, in the sole discretion of the Committee, that such employee has committed an act of theft, embezzlement or other dishonesty, the entire account of such participating employee shall be forfeited and shall be allocated and credited to the accounts of the other participating employees of such Employer as above provided.