The authorities cited by defendant under this argument are not in point. Principal reliance is placed upon Going v. Southern Mill Employees Trust, Okla., 281 P.2d 762. That case involved a written plan for employee benefits for which a trust had been created. By the plain terms of the trust, benefits were payable only to employees with five years' service, with the proviso that in case of disability, the trustees, in their sole discretion, could award benefits to any employee. Plaintiff in that case had only two years' service and had voluntarily retired because of disability, and it was not claimed that the trustees had made an award of benefits to him.
Menke v. Thompson (8 Cir.) 140 F.2d 786. In reviewing the decisions of other jurisdictions, the Oklahoma court stated in Going v. Southern Mill Employees' Trust (Okla.) 281 P.2d 762, 763: "* * * we conclude that an employer who creates a profit sharing retirement plan for the benefit of his employees, which plan is a voluntary one supported solely by contributions from the employer, has the right to prescribe the terms of the plan and the manner in which it shall be administered; and such terms as are prescribed are binding upon and determinative of the rights of an employee asserting a right to benefits thereunder.
Ward Co. v. Williams, 330 Mich. 275, 47 N.W.2d 607, 608 (1951) (employer sued employee to recover amount wrongfully paid under health and accident insurance plan); Rakness v. Swift Co., 286 Minn. 74, 175 N.W.2d 429, 432 (1970) (employee sued employer for denied disability benefit from retirement plan); Blacik v. CancoDivision — American Can Co., 279 Minn. 266, 156 N.W.2d 239, 242 (1968) (former employee sued employer for additional retirement benefit and vacation pay); Stopford v. Boonton Molding Co., 56 N.J. 169, 265 A.2d 657, 659 (1970) (retiree sued employer for anticipatory breach of vested contractual right to pension from pension plan); Hindle v.Morrison Steel Co., 92 N.J. Super. 75, 223 A.2d 193, 194 (App.Div. 196 6) (former employee sued employer to recover contractual rights in retirement fund); Gearns v. Commercial Cable Co., 266 A.D. 315, 42 N.Y.S.2d 81, (1943) (employee sued employer for monthly payment due under retirement plan), aff'd, 293 N.Y. 105, 56 N.E.2d 67 (1944); Going v. Southern Mill Employees' Trust, 281 P.2d 762 (Okla. 1955) (employee sued trust to compel payment of share in profit-sharing plan); Amicone v. Kennecott Cooper Corp., 431 P.2d 130 (Utah 1967) (employee sued employer for disability benefits from pension plan). A minority of state courts have viewed the matter under trust law and therefore denied jury trials.
Teren v. First National Bank of Chicago, 243 Or. 251, 412 P.2d 794 (1966). In Going v. Southern Mill Employees' Trust, Okla., 281 P.2d 762 (1955), the Oklahoma Supreme Court cited approvingly Menke v. Thompson, supra. In the Going case the court stated:
And where the terms of the plan as prescribed by such employer provide that the decision of the trustees appointed to administer such plan shall be final and conclusive, the decision of such trustees is binding on an employee claiming benefits under such plan." Going v. Southern Mill Employees' Trust (Okla. 1955), 281 P.2d 762, 763. "All the cases which have been called to our attention take the position that great latitude is tolerated in the exercise of judgment by pension-fund trustees. It is not our function to determine whether the committee's disposition is one we would have selected.
Many jurisdictions have followed the rule of Menke v. Thompson, 140 F.2d 786 (8th Cir. 1944), which is urged here by the defendant, where the court characterized the pension as a gratuity or bounty which the employer could condition as desired, which included placing exclusive power in a company board for administration. This approach has been emphasized where the court is considering non-contributory pension and profit sharing plans. Going v. Southern Mill Employees' Trust (Okla.) 281 P.2d 762. Other jurisdictions voice the rule that courts will not interfere unless there is a showing that the company board acted arbitrarily, capriciously, fraudulently or in bad faith. Norman v. Southern Bell Tel. and Tel. Co. (Ky.) 322 S.W.2d 95; Lano v. Rochester Germicide Co., 261 Minn. 556, 113 N.W.2d 460; Smith v. New England Tel. and Tel. Co., 109 N.H. 172, 246 A.2d 697; Teren v. First National Bank, 243 Or. 251, 412 P.2d 794. Texas has taken a strong position upholding the action of the pension committees in cases of non-contributory plans.
These are matters resting in the discretion of the compensation committee. Fickling v. Pollard, 51 Ga. App. 54 ( 179 S.E. 582); Going v. Southern Mill Employees Trust (Okla.) 281 P.2d 762. See also, Parrish v. General Motors Corp. (Fla.)