No. 25325 - Kay K. Meadows v. Wal-Mart Stores, Inc.; AND Beverly Judy and
Karen Austin, Individually and as Class Representatives v. Sheetz
Corporation; AND Christine Remsberg, et al. v. Kmart Corporation;
AND Elizabeth Besaw Hutzler and Contessa Besaw Vanorsdale v.
Easton Molding Corporation, a West Virginia Corporation; AND H.
Vance Stewart v. Waco Equipment Co., dba Waco Scaffolding &
Davis, Justice, concurring:
I firmly believe the legally correct decision was expressed in the majority
opinion. I write separately only for the purpose of emphasizing the basis of my decision to
vote with the majority.
As an analogy, the majority opinion referenced the Employment Retirement
Income Security Act (hereinafter ERISA'), 29 U.S.C. § 1001, et seq. Under
pension benefits are protected only to the extent that they have accumulated and vested in
an employee.See footnote 1
That is, Congress sought not to impose financial liability upon employers for
pension benefits that had not vested.See footnote 2
Moreover, the definition resorted to by the majority
is not foreign to the law in other contexts. See Estate of Huey v. J.C. Trucking, Inc., 837 P.2d
1218, 1221 (Colo. 1992) (accrued means to come into existence as an enforceable claim, vest
as a right); Seattle Sch. Dist. No. 1 v. International Union of Operating Eng'rs, 944 P.2d
1062, 1066 (Wash. Ct. App. 1997) (accrued means to vest as a right); Board of Regents v.
Putnam County, 506 S.E.2d 923, 925 (Ga.App. 1998) (accrued means due and payable);
South Cent. Bell Tel. Co. v. Tarver, 704 So.2d 278, (La. Ct. App. 1997) (accrued means to
come into existence as an enforceable claim); Singleton v. Kenya Corp., 961 P.2d 571, 575
(Colo. Ct. App. 1998) (the term unaccrued benefits means unvested benefits).
I do not believe that the state legislature intended for the Act to impose upon
employers the financial burden of the payment of nonvested fringe benefits. Indeed, I
believe the legislature, if it had so intended, would have affirmatively stated that fringe
benefits do not have to be vested to be payable. No such affirmative language appears in the
Two options remain available to employees in their quest to obtain nonvested
fringe benefits: unionization and legislation. First, unions regularly negotiate with employers
for the payment of nonvested fringe benefits. In fact, the payment of fringe benefits and
severance packages are legitimate issues that are included in most collective bargaining
agreements. Moreover, the heart and soul of unionization centers around the union's strength
to negotiate on a level playing field with employers. Nothing illustrates this point better than
these consolidated cases. All companies involved in this litigation are non-union companies.
Had the employees been represented by unions, the terms and conditions of the fringe benefit
package undoubtedly would have been fully set forth in the collective bargaining agreement.
The second method by which employees may obtain nonvested fringe benefits
is through legislation. Nothing prevents employees from urging state legislators to amend
the Act, so that it expressly requires the payment of nonvested, fringe benefits.
This Court's function is narrowly tailored to interpret or apply the law. The
dissenters in this case, again and again, attempt to rewrite the governing statutes to achieve
the result for which they are advocating. Legislation is not the function of this Court. As I
indicated in my dissenting opinion in State ex rel. Farley v. Spaulding, 203 W.Va. 275, ___,
507 S.E.2d 376, 388 (1998), this Court must never infringe upon the powers granted to the
executive and legislative branches of government. This Court correctly observed in State
ex rel. Barker v. Manchin, 167 W.Va. 155, 167, 279 S.E.2d 622, 630 (1981), that the
separation of powers doctrine embedded in our state constitution, which
prohibits any one department of our state government from exercising the powers of the others[,] is not merely a suggestion; it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed. Where one branch of our state government seeks to exercise or to impinge upon the powers conferred upon another branch, we are compelled by this mandate to restrain such action, absent a specific constitutional provision permitting such interference.
For the reasons stated, I concur in the majority opinion.