The opinion of the court was delivered by: NICKERSON
EUGENE H. NICKERSON, United States District Judge
Plaintiffs brought this action against the defendant Wells Fargo Armored Service Corp. (Wells Fargo) for damages due to its alleged failure to pay accrued and unused sick and vacation pay for the period January 1, 1980 to April 1980. Plaintiffs assert jurisdiction on the basis of (a) diversity of citizenship, 28 U.S.C. § 1332(a)(1), (b) section 502(a)(1)(B) of the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1132(a)(1)(B), and (c) pendent jurisdiction. Wells Fargo moves for summary judgment.
Plaintiffs, members of Truck Drivers Local Union No. 807 I.B.T. (Local 807), allege the following. As of January 1, 1980 they had completed ten or more years of full-time service as employees with Wells Fargo, a Georgia corporation. Between March 14, 1977 and April 13, 1980, a collective bargaining agreement between Wells Fargo and Local 807 set forth the terms and conditions of plaintiffs' employment, including sick pay and vacation benefits.
The provisions for sick pay benefits entitled an employee to five sick days per year. The employee could either carry over unused sick days to the following year or (time receive payment for them at the prevailing rate at the time the unused days were accrued. An employee seeking payment for the unused sick days had to provide written notice to the employer by December 1 and would then receive payment during the first full pay period in December.
The provisions for vacation benefits entitled an employee to a specified number of paid vacation weeks based on seniority. In addition, certain employees on their fourth and ninth anniversaries were entitled to increased vacation pay, to be paid with their regular vacation pay during the following vacation season, or they could take additional weeks of vacation in the following year. An employee who worked less than twelve months during a given year would receive paid vacation time on a pro rata basis. The agreement then provides that "[i]n the event of termination of employment . . . for any reason, vacation pay for service performed during the current year shall be prorated and shall be paid at the time of termination, together with all vacation pay earned [but not previously taken or paid for] for service during the entire preceding calendar year . . . ."
On April 14, 1980 the members of Local 807, including plaintiffs, commenced a strike against Wells Fargo for a new collective bargaining agreement. On June 2, 1980 Wells Fargo withdrew recognition from Local 807. In June 1980, Local 807's Business Agent made repeated demands on Wells Fargo for payment of plaintiffs' accrued and unused 1980 sick and vacation pay. The manager of the New York City branch of Wells Fargo and its executive vice president for operations assured the Business Agent and some of the plaintiffs that Wells Fargo would pay the benefits at the end of 1980. During July 1980, at the Business Agent's request, Wells Fargo paid plaintiffs their accrued and unused 1979 sick and vacation pay. Also in July 1980 Wells Fargo paid accrued and unused sick and vacation pay for the period January 1 to April 11, 1980 to another striking employee upon the termination of his employment.
On July 7, 1980 Wells Fargo hired permanent replacements for plaintiffs. On September 1, 1980 Wells Fargo distributed an employee handbook to certain employees setting forth the terms and conditions of employment (including vacation and sick pay benefits) effective July 7, 1980. Wells Fargo did not send plaintiffs a copy of the employee handbook, although they learned of its existence on September 1, 1980.
The employee handbook provides for three sick days per year following the completion of one full year of service. Unused sick days may not be accrued, but the employee is to receive payment for them no later than sixty days following the employee's anniversary date. The handbook also provides for paid vacation time based on seniority, but this time is not cumulative from year to year and must be taken within the year.
On December 21, 1980, Local 807 made a written demand on Wells Fargo on behalf of the plaintiffs for accrued and unused sick pay under the collective bargaining agreement. Wells Fargo rejected that demand by letter dated January 12, 1981 stating that plaintiffs were "former employees." On February 5, 1981, Local 807 demanded the 1980 pro rata vacation pay due under the agreement. On March 19, 1981 Wells Fargo stated that there were no vacation monies due to plaintiffs as "former employees."
On January 28, 1982, Local 807 served a notice of intention to arbitrate the issue of whether Wells Fargo failed to comply with the collective bargaining agreement by refusing to pay the accrued and unused sick and vacation pay for work performed during the period January 1, 1980 and April 11, 1980. In an award dated May 18, 1983, the arbitrator found that by "even the most liberal construction" the demand for arbitration was at least ten months too late and that therefore he was without authority to decide the merits of the sick and vacation pay dispute.
The complaint sets forth several theories of recovery. Wells Fargo's motion for summary judgment is addressed to all claims.
A. Claims Under the Collective Bargaining Agreement
Plaintiffs assert that the collective bargaining agreement provided for severance payments of sickness and vacation benefits and thus established an "employee welfare benefit plan" ...