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McLendon v. Continental Can Co.

filed as amended august 24 1990.: July 26, 1990.

CECIL MCLENDON, DON VANDERTULIP, JIMMIE CARTHAN, JR. AND KONRAD TROJNIAR, ON THEIR OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED
v.
CONTINENTAL CAN COMPANY, A CORPORATION, A NEW YORK CORPORATION INCORPORATED IN 1913; CONTINENTAL CAN COMPANY, INC., A DELAWARE CORPORATION; CONTINENTAL PACKAGING COMPANY, INC., A DELAWARE CORPORATION; THE CONTINENTAL GROUP, INC., A NEW YORK CORPORATION INCORPORATED IN 1982; AND KMI CONTINENTAL INC., A NEW YORK CORPORATION, APPELLANTS V. UNITED STEELWORKERS OF AMERICA, AFL-CIO



On Appeal from the United States District Court for the District of New Jersey; D.C. Civil Action No. 83-1340.

Higginbotham, Chief Judge, and Becker and Nygaard, Circuit Judges.

Author: Nygaard

NYGARRD, Circuit Judge.

Opinion OF THE COURT

In this class action based on § 510 of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1140, and the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961 et. seq., defendant, the Continental Group ("Continental"), appeals from that portion of the district court order granting permanent injunctive relief to the plaintiff class of steelworkers. We have jurisdiction pursuant to 28 U.S.C. § 1292(a)(1).

The district court, in its order dated June 15, 1989, specifically found that: (1) Continental instituted and maintained the liability avoidance plan found to be illegal under section 510 of ERISA in Gavalik v. Continental Can Co., 812 F.2d 834 (3d Cir.), cert. denied, 484 U.S. 979, 108 S. Ct. 495, 98, 98 L. Ed. 2d 492 L. Ed. 2d (1987) as followed by McLendon v. The Continental Group, Inc., Civ. No. 83-1340 (D.N.J. May 10, 1989), as amended, Civ. No. 83-1340 (D.N.J. June 7, 1989); (2) Continental designed the liability avoidance program ("LAP") to prevent employees from attaining eligibility for layoff benefits to which they would become entitled under a 1977 agreement between Continental and the United Steelworkers of America ("USW"); (3) LAP was the determinative factor in laying off the St. Louis class members; and (4) Continental had failed to sustain their burden of proving that any of the 315 St. Louis class members would have lost work in any event. The district court ordered nationwide permanent injunctive relief barring prospective use of the LAP to violate section 510 of ERISA; entered a judgment of liability against Continental in favor of the St. Louis class members; requested a list of St. Louis steelworkers laid off pursuant to the discriminatory plan and ordered Continental to cooperate fully; retained jurisdiction to ensure compliance with the permanent injunction; appointed Professor George L. Priest of the Yale Law School as Special Master to handle settlement or damage claims and any remaining issues in the case; and ordered that Continental show cause why its "same-loss" defense should not be stricken at every plant nationwide and entered judgment accordingly.*fn1 Continental raises four issues on appeal; whether the district court erred by: (1) presuming that the determinative factor of every layoff at every plant was the desire to defeat unfunded pension benefits; (2) using that presumption to find liability at 73 St. Louis; (3) rejecting Continental's "same-loss" defense at 73 St. Louis and all other plants and; (4) granting permanent injunctive relief.

For the following reasons, we will affirm.

I.

Factual Background*fn2

A. The Liability Avoidance Plan ("LAP").

Continental entered into a collective bargaining agreement with the United Steelworkers of America, AFL-CIO ("USW") in 1977. This agreement established two pension plans, the "70/75" pension and the "Rule of 65" pension.*fn3 These plans were commonly called "Magic Number" benefits because they accrued when the employee reached a certain age and a certain number of years of service. The plans provided layoff benefits to those employees experiencing a break in service for two years or more from plant shutdown, involuntary layoffs, or physical disability. Both plans were implemented on a plantwide seniority system.

Recognizing both that these benefit plans created substantial, unfunded pension liabilities, and that the steel beverage can market was dwindling, Continental developed the LAP to avoid unfunded liabilities by laying off workers close to eligibility for benefits. This program was also known as the BELL System.*fn4 The LAP was executed by a computer tracking system which identified workers at a particular plant according to their age and years of service. It operated nationwide.

The BELL System is really two programs. BELL I involved a "cap and shrink" program. A "cap" is a workforce reduction scheme, accomplished by setting a maximum number of employees, and is designed to eliminate those employees approaching Magic Number benefits. Continental protected workers above the "cap-line" or those employees whose pension under the two plans had already vested. Workers below the cap-line were not usually vested and would not be rehired for a period of five years.*fn5 Numbered computer codes were assigned to these pension-risk employees to ensure that they would not be rehired prematurely. A "249" or "299" computer signal alerted Continental that an employee so designated could potentially cause it pension funding problems. A "shrink" refers to a workforce reduction from manufacturing or market conditions. BELL II instructed plant managers to shift business to plants with low unfunded pension liabilities or to plants that needed to retain vested employees. Continental employed scattergraphs*fn6 to identify plant employees close to vesting. The combination of BELL I and BELL II and a sophisticated computer guiding system allowed Continental to implement the LAP corporation-wide. This lawsuit primarily involves the implementation of the LAP at 73 St. Louis and its causal link with layoffs at that plant.

B. 73 St. Louis.

Continental's 73 St. Louis plant produced food, beverage and general packaging cans. Between 1965 and 1972, the plant employed 850 hourly workers. Pursuant to a requirements-output contract, 73 St. Louis supplied Anheuser-Busch's St. Louis brewery with steel cans. At first, this contract occupied 80-85% of the 73 St. Louis plant's capacity. In 1973 and 1974, Anheuser-Busch began using two-piece aluminum cans and its demand for steel cans from Continental declined and 73 St. Louis began losing money. In 1976, in an effort to keep the steel can industry competitive, Anheuser-Busch invited both Continental and American Can Company, Continental's chief competitor, to bid on its St. Louis business. Anheuser-Busch did not accept Continental's contractual demands*fn7 and awarded the contract to American. Continental produced its last cans for Anheuser-Busch at 73 St. Louis in 1979. When Continental lost the Anheuser-Busch business, it obtained a lower volume contract from Mead-Johnson, a manufacturer of infant formula, and converted 73 St. Louis from beverage to infant formula can production.

Dwindling profits from declining business volume caused Continental to institute measures designed to increase worker productivity. These measures included a decrease in manning at the plant and the implementation of BELL I and BELL II. Continental laid off workers at 73 St. Louis in 1976, 1977 and 1980, reducing the workforce from 550 in 1976 to 237 by the end of 1980.

II.

Procedural History

A. The Class Action.

Four former employees of Continental plants in Passaic, New Jersey and Chicago, Illinois filed this class action. The court certified a class of all participants in the Continental Pension Plan "who suffered [or will suffer] a break in pension service subsequent to December 1, 1977 . . . as a result," in whole or in part, of that capping program [LAP], excluding persons who were employed at plants for which separate class actions had already been adjudicated. App. at 228a.

The class maintains they were laid off pursuant to LAP because they approached eligibility for Magic Number (Rule of 65 or 70/75) pension benefits and that although job openings became available, Continental kept them on permanent layoff to prevent them from achieving a vested right to their pension benefits. App. at 57. The complaint alleged that the LAP ...


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