Merlin Earl Malone v. Delco Battery-Muncie, Delco-Remy Division of General Motors Corporation

540 F.2d 297, 93 L.R.R.M. (BNA) 2023, 1976 U.S. App. LEXIS 7583

• Court: Court of Appeals for the Seventh Circuit
• Decided: August 13, 1976
• Docket: 74-2069
• Status: Published

Opinions

FAIRCHILD, Chief Judge.

Plaintiff, a retired employee of General Motors Corporation (Delco), brought an action in an Indiana Court. He sought damages for the refusal of Delco to reinstate him, contending that a provision of the collective bargaining agreement entitled him to reinstatement. Delco removed the action to the district court since it was an action within Section 301, L.M.R.A., 29 U.S.C. § 185, 28 U.S.C. § 1337. On Delco’s motion for summary judgment, the district court entered judgment for Delco, and plaintiff appealed.

Plaintiff was retired April 1, 1968 for total and permanent disability, pursuant to Section 4 of the Delco pension plan. He thus became eligible for a disability pension, which Delco continues to pay. He asserts that he has recovered from his disability. Delco denies that he has recovered, but contends that even assuming recovery, the collective bargaining agreement does not entitle plaintiff to reinstatement as long as Delco pays his pension. For the limited purpose of deciding the motion for summary judgment, Delco conceded the fact of recovery.

Section 4 of the pension plan provides for retirement and pension upon an employee’s becoming totally and permanently disabled before age 65. The pension is payable during the continuance of disability until age 65. Section 4(d) provides that a disability pensioner may be required to submit to examination and that if, “on the basis of such examination it is found that the pensioner is no longer disabled . . ., the pensioner will be deemed recovered and his disability pension will cease.” There is also provision for discontinuance if the pensioner refuses to be examined. A supplemental agreement spells out a procedure for determination whether a pensioner continues to be totally and permanently disabled. The Corporation makes the determination “upon the basis of medical evidence satisfactory to it.” If it is determined that the pensioner is no longer totally and permanently disabled, a further inquiry is provided for if the union member of the local pension committee disagrees. Thus the plan contemplates a challenge by Delco to the continuation of disability, but not a challenge by the employee.

Section 64(f)(2) of the collective bargaining agreement provides that an employee who has been retired on a disability pension, but “ who recovers and has his pension discontinued shall have his seniority reinstated.”

Plaintiff contends that this provision entitles an employee, retired for disability, but who can establish in a judicial proceeding, though contested by the company, that he has recovered, to forego his pension and' be reinstated. In substance, plaintiff contends that the language above quoted must be interpreted as if it read that a disabled employee “who recovers, shall have his pension discontinued and his seniority reinstated.”

Delco insists on a more nearly literal construction, i. e., that there are two conditions to be fulfilled: (1) recovery and (2) discontinuance of the pension, and that, under the plan, the latter is dependent upon a procedure initiated by Delco. It would then follow that until Delco chooses to and carries out a determination under Section 4(d) of the pension plan, resulting in discontinuance of a retiree’s pension, the retiree has no right to be reinstated.

We think Delco’s interpretation of Section 64(f)(2) is the more reasonable, tying in, as it does, with the provisions of the plan and regulations. Those provisions extend to an employee certain safeguards if the employer decides to discontinue the pension on account of recovery from disability, but nowhere is there suggested a procedure to be followed if the employee claims recovery and seeks reinstatement when the employer is not satisfied that he has in fact recovered. No doubt the contract could have spelled out a right to reinstatement automatically upon recovery, but it did not do so expressly and it is not unreasonable to believe that the parties did not intend to require the employer to reinstate an employee, retired for disability, unless the employer is satisfied that he has in fact recovered.

Plaintiff, in opposing summary judgment, did not put in the record any facts or suggestion of facts which might aid the court in reaching an interpretation of the documents favorable to plaintiff. We are unable to find any error in resolving the issue of contract interpretation upon motion for summary judgment.

The Clerk of this court is directed to enter judgment affirming the judgment appealed from.