Harry BELLAS, v. CBS, INC.; Westinghouse Pension Plan, Appellants

SHADUR, Senior District Judge,

concurring:

Westinghouse Electric Corporation (“Westinghouse”) fired its long-term employee Harry Bellas (“Bellas”) on December 31, 1997. That was of course within Westinghouse’s rights: Under the common law principles of at-will employment, an employer is free to terminate a 32-year employee — just as it is free to terminate a probationary employee with just a few months under his or her belt — for good reason, bad reason or no reason at all. But here it is more than worth noting that there was no Westinghouse “plant shutdown” or any other kind of “shutdown” involved at all — and that is the bizarre mischaracterization that appellants have attached to Bellas’ layoff (his firing), and that has been referred to in the majority opinion at n.4 and then employed throughout the opinion. What or who was “shut down”? Bellas? Surely not.

Most importantly for present purposes, that acceptance of appellants’ mischarac-terization in the opinion has given them (and the amicus in the case) substantially more than their due, and has thus made the reaching of our panel’s conclusions-though clearly correct-needlessly more difficult in terms of analysis. And that has in turn occasioned this separate concurrence.

For appellants to attach the “shutdown” label to Bellas’ termination of employment, and then to attempt to use that label as a springboard for a flawed analysis, does more than violate the home truth contained in one of the aphorisms ascribed to Abraham Lincoln:

If you call a tail a leg, how many legs has a dog? Five? No, calling a tail a leg don’t make it a leg.

After all, from an employee’s perspective the occasion for his or her being fired is irrelevant — in Gertrude Stein terms, “a firing is a firing is a firing.” 20 But from an employer’s point of view, a plant shutdown is a major economic event (as an individual’s layoff, or even a number of individual layoffs, need not be). And of course every employer is well aware of its employee turnover rates, so that although the prospect or timing of any individual employee’s termination cannot be predicted, the inevitability of a reasonably anticipatable number of employee terminations can be. And that situation contrasts sharply with an entire plant shutdown, which is almost always an unusual and unpredictable event *541 (at least far in advance) in a company’s economic life.

It is thus no accident, I believe, that when Congress acted to overturn adverse judicial precedent by enacting the Retirement Equity Act (ERISA § 204(g)’s anti-cutback provisions), the Senate Report (which has been quoted in the majority opinion’s section captioned Legislative History of Current Section 20U(g), and has also been expressly referred to in both Ross v. Pension Plan For Hourly Employees of SKF Indus., Inc., 847 F.2d 329 , 333 (6th Cir.1988) and Richardson v. Pension Plan of Bethlehem Steel Corp., 67 F.3d 1462, 1468 (9th Cir.1995)) proceeded to list and explain the types of benefits that an employer could continue to control and could hence modify despite the Section 204(g) amendment. Importantly, in the course of doing so the Senate Report referred only to “a plant shutdown benefit (that does not continue after retirement age).” It did not speak at all of an employer’s right to alter such retirement benefits payable on an individual’s retirement or other termination.

And it is relatedly worth noting that not one of the three decisions on which appellants seek to rely, and with which our panel has deliberately parted company in substantive terms, involved (as this case does) an individual layoff unassociated with a plant shutdown. Instead the two Court of Appeals decisions, Ross and Roper v. Pullman Standard, 859 F.2d 1472 (11th Cir.1988)(per curiam), did involve plant shutdowns and the major employee displacements that such events create, while the District Court decision in Blank v. Bethlehem Steel Corp., 758 F.Supp. 697 (M.D.Fla.1990) involved the sale of a facility to a purchaser that did not take over the workforce in toto (thus also being much the equivalent, from the selling employer’s perspective, of an unanticipatable plant shutdown).

In sum, the analysis and result that plainly favor Bellas in this case flow easily not only from the facts that the benefits at issue here were framed to continue after retirement age but also from the fact that such benefits are not even hinted at in the Retirement Equity Act or its legislative history as subject to modification by an employer that must deal with the post-statutory termination of an individual employee. Indeed, that conclusion should really follow a fortiori from the majority opinion’s decision that the continuation of such a benefit beyond retirement would also insulate a plant shutdown situation from the employer’s attempted revision of that retirement benefit.

It is also significant, I suggest, that the General Counsel’s Memorandum that was authored by an anonymous Internal Revenue Service lawyer — the GCM on which appellants seek to lay such heavy stress and that the majority opinion properly finds unpersuasive as a substantive matter-becomes an even weaker reed when looked at from the perspective set out here. That GCM speaks of “such shutdown benefits” in the everyday English meaning of an employer’s closing of a facility or the like. Westinghouse’s effort to bootstrap that notion into applying to every termination of every employee represents an unjustified quantum leap.

It is of course true that Bellas has shaped his Complaint as a putative class action to encompass all participants in the Westinghouse Plan who were laid off after January 1, 1997 under circumstances that meet the pre-Plan Amendment requirements for the type of pension claimed by Bellas, or even to encompass some Plan participants who are still employed. But because this appeal comes before us on an interlocutory basis before the issue of class certification has been addressed by the district court, it cannot now be known (for example) whether Bellas, with his own situation involving an entirely individual firing, would or would not qualify under the Fed.R.Civ.P. 23 standards of typicality or adequacy of representation for a class including such Westinghouse employees who might become affected in the future by a now-purely-hypothetical plant shutdown. Hence our panel’s reaching out to address that hypothetical situation poses the prob *542 lem always presented by judicial dictum: the prospect that when an actual controversy of that nature presents itself, it may present issues that no one has now anticipated fully, and that could therefore call for a different analysis (or even perhaps a different result).

For those reasons I would limit the present analysis and decision to the one before us in real-world terms: Bellas’ individual termination (although I do want to make it clear that my substantive analysis of the hypothetical plant shutdown situation, if we were properly called upon to reach it, would be no different from what has been said in the majority opinion). Accordingly I concur in the majority opinion to the extent of its materially less difficult resolution of the appeal as to Bel-las’ individual claim.

. There is no question that Bellas was fired, rather than some more euphemistic term such as "layoff” being applicable to his termination. Bellas’ original notice from the employer’s Benefits Access Center used the language of his being "involuntarily separated from Westinghouse,” which was clear enough on its own, and Westinghouse’s ultimate com- - munication (which cut the cord conclusively after a short extension that it had granted from the original notice date) left no conceivable room for doubt (emphasis added):

Previously you were notified of permanent separation effective August 27, 1997. You were subsequently informed that due to business conditions, your employment was extended.

This letter is formal notification that your effective date of separation will be December 31, 1997.