Julius NOE; Ray Reynolds; Anna Mae Wilder; Russell Bowman; Nancy Hood; William Duncan, Plaintiffs-Appellants, v. POLYONE CORPORATION, Defendant-Appellee.
No. 07-5068.
United States Court of Appeals, Sixth Circuit.
Argued: Sept. 13, 2007. Decided and Filed: March 19, 2008.
Rehearing and Rehearing En Banc Denied June 2, 2008.
520 F.3d 548
Most importantly, the district court instructed the government to “articulate for the record the summary of the evidence if this case went to trial.” Following the district court‘s instruction, the government read into the record the facts, summarized at the beginning of this opinion, detailing Page‘s alleged involvement in the scheme to import cocaine into the United States. The district court then asked Page if he understood the evidence that the government planned to prove at trial against him, to which Page answered in the affirmative. The district court asked Page if he had anything else to add, to which Page‘s attorney offered a small correction to the facts read by the government. Only after this factual basis was determined, and only after ensuring that Page understood the rights he was giving up and the charge against him, did the district court accept Page‘s plea of guilty pursuant to the plea agreement.
While less than a model of clarity, the totality of the record supports the government‘s argument that the district court established a factual basis for Page‘s guilty plea, and that Page understood the nature of the charge to which he pled guilty. Accordingly, we find that Page has failed to meet the high burden required by the plain-error standard of review governing this case.
III.
Based on the foregoing, we AFFIRM Page‘s conviction.
Before: SUTTON and McKEAGUE, Circuit Judges; FORESTER, District Judge.*
McKEAGUE, J., delivered the opinion of the court, in which FORESTER, D.J., joined, SUTTON, J., (pp. 564-69), delivered a separate opinion concurring in part and dissenting in part.
OPINION
McKEAGUE, Circuit Judge.
This is a retiree health benefits case, in which the court is asked to determine
I. BACKGROUND
Russell Bowman, William Duncan, Nancy Hood, Julius Noe, Ray Reynolds, and Anna May Wilder, (“Plaintiffs“) are all retirees or the surviving spouse of a retiree from B.F. Goodrich Co.‘s Geon Vinyl Division (“BFG“), which through a series of transactions became PolyOne Corp., the defendant in this case (“PolyOne“). Plaintiffs or their deceased spouses all retired between 1979 and 1990 from BFG‘s Louisville, Kentucky, facility. While employed with BFG, Plaintiffs were represented in the collective bargaining process primarily by the Distillery, Rectifying, Wine and Allied Workers’ International Union of America, Local No. 72 (“Union“). During this time period, the Union and BFG entered into various collective bargaining agreements, none of which specifically addressed the issue of health benefits. Also during this period, BFG negotiated a series of agreements with other unions that represented employees working at facilities outside of Kentucky. These other agreements, which were entitled “Agreements on Employee Benefit Programs” (“EBAs“), provided employee and retiree health benefits to the applicable group of employees. Per the terms of the EBAs, retirees were not required to contribute to their health insurance premiums, they were reimbursed for Medicare Part B, and they paid $1.00 for each prescription medication.
Plaintiffs maintain that the health benefits provided by the EBAs were extended to them via a Memorandum of Agreement (“MOA“) entered into by Plaintiffs’ union and BFG. Effective in 1988, BFG replaced the EBAs with a Flexible Benefit Program (“Flex Program“). The Flex Program slightly changed the health care coverage available for active employees and those who retired after August 1988. It is undisputed that Plaintiffs received the health benefits described in the EBAs or the Flex Program until March 2006, when PolyOne ceased reimbursing Plaintiffs’ Medicare Part B premiums, began requiring Plaintiffs to contribute towards their insurance premiums, and instituted much higher prescription drug co-pays. Believing that PolyOne‘s conduct violated the EBAs and the Flex Program, Plaintiffs filed the instant action under
II. ANALYSIS
A. Standard of Review and Applicable Law
This court reviews a district court‘s grant of summary judgment de novo. Nichols v. Moore, 477 F.3d 396, 398 (6th Cir.2007). Likewise, de novo review applies to questions of contract interpretation. Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571, 577 (6th Cir.), cert. denied, ___ U.S. ___, 127 S.Ct. 554, 166 L.Ed.2d 410, and, 127 S.Ct. 555, 166 L.Ed.2d 410 (2006).
The seminal case for determining whether the parties to a CBA intended benefits to vest is UAW v. Yard-Man, 716 F.2d 1476, 1479 (6th Cir.1983). Under Yard-Man, basic rules of contract interpretation apply, meaning that courts must first examine the CBA language for clear manifestations of an intent to vest. Id. Furthermore, each provision of the CBA is to be construed consistently with the entire CBA and “the relative positions and purposes of the parties.” Id. The terms of the CBA should be interpreted so as to avoid illusory promises and superfluous provisions. Id. at 1480. Our decision in Yard-Man also explained that “retiree benefits are in a sense ‘status’ benefits which, as such, carry with them an inference ... that the parties likely intended those benefits to continue as long as the beneficiary remains a retiree.” Id. at 1482. With regard to the “Yard-Man inference,” later decisions of this court have clarified that Yard-Man does not create a legal presumption that retiree benefits are interminable. Yolton, 435 F.3d at 579. Rather, Yard-Man is properly understood as creating an inference only if the context and other available evidence indicate an intent to vest. Id.
When an ambiguity exists in the provisions of the CBA, then resort to extrinsic evidence may be had to ascertain whether the parties intended for the benefits to vest. Int‘l Union, United Auto. Aerospace & Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 774 (6th Cir.1999). If an examination of the available extrinsic evidence fails to conclusively resolve the issue and a question of intent remains, then summary judgment is improper. Int‘l Union, United Mine Workers of Am. v. Apogee Coal Co., 330 F.3d 740, 744 (6th Cir.2003). Having provided the broad analytical framework, we now turn to the task of parsing the language of the various agreements involved in this case.
With the exception of Plaintiff Hood, all of the retirees involved in this case received the health benefits provided by the various EBAs. Although Plaintiffs retired under several different EBAs, we refer to the EBAs collectively because each agreement contains the same language regarding the issues involved in this appeal. As for Plaintiff Hood, the merits of her claim will be discussed separately because the Flex Program governs her retiree health benefits.
B. Incorporation of the EBAs by the MOA
As a threshold matter, it is necessary to determine if the MOA incorporates the health benefits provisions of the EBAs to Plaintiffs. In the absence of incorporation, Plaintiffs’ claim fails because the collective bargaining agreements negotiated between Plaintiffs and BFG are silent
The following Article is hereby included in the current Collective Bargaining Agreement:
The Pension Plan, including the requirement for compulsory retirement at age seventy, the Hospitalization, Surgical and Medical Expense Insurance Program ..., and the Prescription Drug Program presently in effect for the majority of The BFGoodrich Company‘s production and maintenance employees shall be in effect for the life of this Agreement.
JA at 646. According to the district court, while “the MOA is far from clear, the parties appear to have intended that this general reference incorporate the EBA health benefit provisions.” Noe v. PolyOne Corp., No. 3:06-CV-170H, 2006 WL 3759601, at *3 (W.D.Ky. Dec. 19, 2006). Disagreeing with the district court‘s determination on this issue, PolyOne argues that Plaintiffs have failed to offer any evidence—aside from anecdotes and hearsay—showing that the MOA incorporated the EBAs to Plaintiffs. In response, Plaintiffs argue that the parties’ course of conduct illustrates that they intended for the MOA to provide employees and retirees of BFG‘s Louisville facility with the health benefits found in the EBAs.
Based on our review of the MOA and the conduct of the parties, the district court correctly held that the MOA incorporated the EBAs to Plaintiffs. Because the MOA itself is unclear on this issue, the district court properly looked to extrinsic evidence and the course of performance between the parties in determining that the MOA incorporated the EBAs. As the district court recognized, the most telling of this extrinsic evidence is the fact that “[e]veryone agrees that [Plaintiffs] actually received the benefits described in the EBAs and continued to receive them after retirement.” Id. at *2. Although the terms of the MOA undoubtedly could have been more precise, the evidence establishes that it was intended by the parties to apply the EBAs to Plaintiffs. Therefore, we proceed to analyze the EBA provisions themselves to determine whether the district court properly found that Plaintiffs’ retiree health benefits have not vested.
C. The Vesting Determination
The district court held that the retiree health benefits provisions in the EBAs clearly and unambiguously established that the parties did not intend for Plaintiffs’ health benefits to vest. Having examined the language of the MOA and the EBAs, this court finds that the district court improperly granted summary judgment in favor of PolyOne for numerous reasons. First, PolyOne‘s argument that the MOA‘s language indicates that Plaintiffs’ health benefits were not intended to vest fails. Second, the durational provisions relied on by PolyOne and the district court are general in nature and do not preclude a finding that the parties intended Plaintiffs’ benefits to vest. Third, provisions in the EBAs expressly tie eligibility for retiree health benefits to eligibility for a pension, which we have repeatedly held evinces an intent to vest. Fourth, adopting the interpretation urged by PolyOne and accepted by the district court would render several promises made in the EBAs illusory, a result in violation of our precedent. Fifth, the presence of specific vesting language in the pension benefits portion of the EBAs does not lead to the conclusion that Plaintiffs’ health benefits have not vested.
1. The MOA Language does not Preclude a Finding that Plaintiffs’ Health Benefits were Intended to Vest
PolyOne argues that the MOA itself establishes that the parties never in
The MOA states in pertinent part:
The Pension Plan, including the requirement for compulsory retirement at age seventy, the Hospitalization, Surgical and Medical Expense Insurance Program ..., and the Prescription Drug Program presently in effect for the majority of The BFGoodrich Company‘s production and maintenance employees shall be in effect for the life of this Agreement; provided that if during the term of this Agreement the Plan or Programs are changed for such majority, such changes shall be made effective on the same date they are made effective for the majority of The BFGoodrich production and maintenance employees and remain in effect for the life of this Agreement.
JA at 646 (emphasis added). PolyOne first asserts that the italicized phrase “shall be in effect for the life of this Agreement” is a specific durational clause that precludes a finding that Plaintiffs’ health benefits have vested. Plaintiffs counter by arguing that the provision is a general durational clause and is insufficient to demonstrate that retiree health benefits have not vested. With regard to this issue, the district court agreed with Plaintiffs that the MOA‘s durational clause was general in nature. See Noe, 2006 WL 3759601, at *3 n. 7.
As explained in Yolton, “[a]bsent specific durational language referring to retiree benefits themselves, courts have held that the general durational language says nothing about those retiree benefits.” Yolton, 435 F.3d at 581. In Yolton, the court concluded that a provision stating that the “group insurance plan will ... run concurrently with this Agreement” was a general durational clause and did not preclude a finding that retiree health benefits had vested. Id. Like the agreement in Yolton, there is no language in the MOA specifically stating that retiree health benefits expire upon the termination of the agreement. It speaks generically of all benefits for all employees; language that does not constitute a specific durational clause under our precedent. See id.; see also Maurer, 212 F.3d at 917-18 (finding that a CBA termination clause was not a specific durational clause because it did not specifically reference retiree benefits).
PolyOne‘s reliance on Linville v. Teamsters Misc. & Indus. Workers Union, Local 284, 206 F.3d 648, 650 (6th Cir.2000), for the proposition that the MOA language is a specific durational clause is misplaced. In Linville, the clause at issue expressly stated that health insurance under the company‘s plan “ceases when the individual reaches age sixty-five.” Linville, 206 F.3d at 649. No such language is present in this case, and there is no discussion in Linville regarding whether a clause such as that contained in the MOA is a general or specific durational provision. Linville is also distinguishable because the agreement there stated that no individuals were to receive health benefits after attaining age sixty-five. Id. Instead, as in Yard-Man and Maurer, the opposite is true in this case; the EBAs actually contain language indicating that certain health benefits start at age sixty-five and last until death. See § 12.15(h), JA at 185. Because the MOA language is analogous to that used in Yolton, and Linville does not apply, we reject PolyOne‘s argument and find that the MOA provision is a general durational clause that does not preclude a finding that Plaintiffs’ health benefits have vested.
While construing the MOA in this manner has some merit on the surface, a close examination of the entirety of the MOA highlights the error in such an interpretation. The MOA provision at issue begins with the words “[t]he Pension Plan, including ... the Hospitalization, Surgical and Medical Expense Insurance Program ..., and the Prescription Drug Program.” JA at 646 (emphasis added). Looking to the specific language relied on by PolyOne, the MOA states “provided that if during the term of this Agreement the Plan or Programs are changed for such majority, such changes shall be made effective” for Plaintiffs. It is apparent that the use of the word “Plan” in the latter sentence refers back to the phrase “Pension Plan” in the former sentence, while the word “Program” in the latter sentence refers back to the former phrase “Hospitalization, Surgical and Medical Expense Insurance Program ... and the Prescription Drug Program.” Adopting PolyOne‘s construction that by permitting the company to make changes to the agreements, the MOA language negates any intent to vest retiree health benefits, would necessarily lead to the conclusion that the benefits provided by the pension plan are subject to change and not vested.
According to Yolton, such an argument fails “because the same language was used regarding pensions and health benefits ... [g]iven the defendant‘s logic, because its pension plan was incorporated into the collective bargaining agreement, its obligation to provide pensions ended with the expiration of the agreement.” Yolton, 435 F.3d at 581 n. 7 (quoting to the district court‘s opinion in Golden). As Yolton seems to have implicitly recognized, such a result is forbidden by ERISA, which requires that pension benefits automatically vest. See Yolton, 435 F.3d at 580-81; see also Maurer, 212 F.3d at 914 (stating that pension plans are subject to mandatory vesting under ERISA). Given that pension benefit plans cannot be changed in the manner PolyOne‘s interpretation would suggest, it follows that the MOA language at issue does not establish that Plaintiffs’ health benefits under the “Program” were not intended to vest.
2. Sections 12.1 and 16.4 of the EBAs are General Durational Clauses
Similar to its MOA arguments, PolyOne‘s primary assertion as it relates to the EBAs is that language found in § 12.1 and § 16.4 of the EBAs specifically limits the availability of retiree health benefits to the duration of the EBAs. Unlike the district court—which adopted this line of reasoning—we are not persuaded. As previously explained with regard to the MOA durational clause, “[a]bsent specific durational language referring to retiree benefits themselves” a general durational clause says nothing about the vesting of retiree benefits. Yolton, 435 F.3d at 581. According to our opinion in Yolton, such general durational language only affects future retirees—that is, someone who retired after the expiration of a particular CBA would not be entitled to the previous benefits, but is rather entitled only to those benefits newly negotiated under a new CBA. Thus, the retirement package available to someone contemplating re
In an unpublished case involving language virtually identical to that found in § 12.1 of the EBAs, we concluded that the provision was general in nature and did not preclude a finding that retiree benefits had vested. See Int‘l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Loral Corp., 107 F.3d 11, 1997 WL 49077, at *3 (6th Cir.1997) (unpublished table decision). The CBA at issue in Loral contained an introductory clause in the benefits portion of the agreement, which stated: “Effective August 12, 1988, and for the duration of this Agreement thereafter, the Employer will provide the following Program of hospital benefits, hospital-medical benefits, surgical benefits and prescription drug benefits.” Id. There, as here, the employer argued that the introductory clause limited its obligation to provide retiree benefits to the duration of the CBA. Id. And there, as here, we were not persuaded. According to the Loral court, the introductory clause was a general durational provision that did not limit retiree health benefits to the duration of the CBA. See id. at *3.
Similarly, in Weimer v. Kurz-Kasch, Inc., 773 F.2d 669, 675-76 (6th Cir.1985), this court analyzed a durational provision stating that “this Agreement and all terms and conditions hereof shall terminate as of the end of the term.” The Weimer court held that the quoted language constituted a “general termination clause [that] does not support a finding that retiree benefits ended when the agreements expired.” Id. at 676; see also BVR Liquidating, Inc., 190 F.3d at 774 (finding that retiree health benefits vested notwithstanding an introductory clause stating that benefits would be provided “at no cost to the Employees or retirees for the term of this Agreement“).
In this case, § 12.1 of the EBAs states: “Effective as of April 21, 1979 and for the duration of this Agreement, the Company will provide the following plan of hospital expense benefits, hospital-medical benefits, surgical benefits, prescription drug benefits, dental benefits and major medical benefits....” JA at 172. According to PolyOne, this language “specifically limit[s] the duration of retiree health benefits to the term of the EBAs.” PolyOne‘s argument fails, however, because § 12.1‘s language is indistinguishable from the language we held to be a general durational provision in Loral and is analogous to that involved in Weimer. As with the durational clauses held to be general in Yolton, Loral, BVR, and Weimer, the language in § 12.1 does not specifically refer to retiree benefits; rather, it refers generically to the benefits available for all employees as well as retirees. Hence, the district court incorrectly held that § 12.1 indicates an intent not to vest retiree health benefits.
Aside from the language found in § 12.1, PolyOne also asserts that the introductory statement in Article 2 and the durational language in § 16.4 foreclose Plaintiffs’ claim. For largely the same reasons as those set forth above, we disagree. Section 16.4 states in pertinent part: “Upon termination, this Agreement shall terminate in all respects except that the benefits provided by it shall be extended for ninety (90) days following such termination.” JA at 186. As with § 12.1, nothing in § 16.4 specifically refers to retiree benefits; instead—like the clauses held to be general
Looking to the introductory language of Article 2, it is also a general durational clause. Article 2 states in pertinent part: “This Agreement constitutes a settlement for the duration of this Agreement of all retirement, pension, insurance, survivor income benefits, supplemental workers’ compensation, drugs and severance pay demands....” JA at 495. This language from Article 2 refers to all benefits; it does not specifically limit the duration of retiree health benefits as required by Yolton and its progeny. PolyOne‘s argument that this general language indicates that Plaintiffs’ health benefits were not intended to vest fails.
The dissent erroneously suggests that by deeming the durational provisions to be general in nature, we have in some way turned the Yard-Man inference into a presumption of vesting that may only be overcome by a “clear statement” that retiree benefits were not intended to vest. Dis. Op. at 566-67. Such is not the case. The dissent also fails to recognize that requiring specific language referring to retiree health benefits in order for a durational clause to be characterized as “specific” is not the same thing as requiring specific anti-vesting language in a CBA; rather, it simply means that the entire case cannot be resolved on the basis of a durational
3. The EBAs Indicate an Intent to Vest Plaintiffs’ Health Benefits
Because the durational clauses relied on by PolyOne do not preclude a finding that Plaintiffs’ health benefits have vested, we look to other provisions of the EBAs to determine whether the parties intended Plaintiffs’ health benefits to vest. Contrary to the district court‘s holding, several provisions in the EBAs and decisions of this court support Plaintiffs’ argument that their health benefits have vested.
a. Tying Eligibility for Retiree Health Benefits to Eligibility for a Pension
According to this court, language in an agreement that ties eligibility for retiree health benefits to eligibility for a pension indicates an intent to vest the health benefits. See McCoy v. Meridian Auto. Sys., Inc., 390 F.3d 417, 422 (6th Cir.2004); see also Golden v. Kelsey-Hayes Co., 73 F.3d 648, 656 (6th Cir.1996).2 In McCoy, the agreement between the parties stated: “The Company shall contribute the full premium or subscription charge for Health Care ... for (i) a retired employee (including any eligible dependents) provided such retired employee is eligible for benefits under Article II of the Company‘s Hourly-Rate Employees Pension Plan.” McCoy, 390 F.3d at 419. After outlining the applicable law under Yard-Man and its progeny, the McCoy court held that because the CBA provision “ties eligibility for retirement-health benefits to eligibility for a pension ... there is little room for debate that retirees’ health benefits vested upon retirement.” Id. at 422. Likewise, the Golden court found an intent to vest retiree health benefits because there were “provisions in each of the CBAs ... which tie retiree and surviving spouse eligibility for health insurance coverage to eligibility for vested pension benefits.” Golden, 73 F.3d at 656; see also Yolton, 435 F.3d at 580 (citing Golden for the proposition that tying eligibility for retiree health benefits to eligibility for pension benefits indicates an intent to vest).
Applying the teaching of McCoy and Golden in the present case leads inescapably to the conclusion that the district court erred in granting summary judgment for PolyOne. Looking to the EBAs, several provisions tie eligibility for retiree health benefits directly to eligibility for pension benefits by using language that is indistinguishable from that involved in McCoy. Section 12.14 of the EBAs provides in pertinent part: “Employees who retire and who are eligible under the 1979 Employee Benefit Agreement for a Pension (other than a Deferred Vested Pension), shall receive the benefits described in this Article.” JA at 184 (emphasis added). Another section of the EBAs also ties eligibility for retiree health benefits to eligibility for a pension. In § 12.7(k), the EBAs state:
“Employees who retire and who are eligible under this Agreement for a pension (other than a Deferred Vested Pension), shall receive the Major Medical Benefits described in this Paragraph 12.7....”
JA at 181 (emphasis added). Lending even more support to the argument that the EBAs tie retiree health benefits to pension benefits is the fact that a key retiree health provision refers to retirees covered by the provision as “Pensioners.” See § 12.5(h), JA at 185.
Without citing any authority, the district court disregarded the significance of this tying language because it “focuses upon an employee‘s eligibility for benefits rather than upon the duration of those benefits.” Noe, 2006 WL 3759601, at *4. Such a statement contradicts McCoy and Golden, both of which found vesting based on provisions that used the word “eligibility.” See McCoy, 390 F.3d at 422 (explaining that there was evidence of an intent to vest “[b]ecause the Supplemental Agreement ties eligibility for retirement-health benefits to eligibility for a pension.“) (emphasis added); see also Golden, 73 F.3d at 656 (explaining that “provisions in each of the CBAs at issue ... tie retiree and surviving spouse eligibility for health insurance coverage to eligibility for vested pension benefits.“) (emphasis added). It is evident that the district court failed to appreciate that by tying the eligibility for retiree health benefits to the eligibility for a pension, the EBAs were actually speaking to the duration of the benefits. As we explained in Golden, “[s]ince retirees are eligible to receive pension benefits for life,” the act of tying retiree health benefits to pension eligibility indicates “that the parties intended that the company provide lifetime health benefits as well.” Golden, 73 F.3d at 656 (explaining why the district court in Golden correctly focused on the presence of tying language). Here, the EBAs undoubtedly tie eligibility for retiree health coverage to eligibility for a pension, which is evidence of an intent to vest.
b. The EBAs’ Promise of a Lifetime Special Medicare Benefit
Aside from tying eligibility for retiree health benefits to eligibility for a pension, which in and of itself suggests an intent to vest, there are other provisions in the EBAs that indicate under our case law that Plaintiffs’ health benefits were intended to vest. Section 12.15(h) of the EBA states:
Subject to the provisions of this Paragraph 12.15(h), a Special Medicare Benefit will be paid to ... (ii) a Pensioner who retires on or after April 21, 1979, or (iii) such Pensioner‘s or Employee‘s surviving spouse, if such Employee, Pensioner or surviving spouse is covered for Medical Benefits under this Article 12.
(1) The Special Medicare Benefit will be equal to the standard monthly premium for Part B of Medicare ...
(2) The Special Medicare Benefit will be payable when an individual attains age sixty-five (65) or, for an individual less than age sixty-five (65),
when he enrolls for Part B of Medicare ... (3) Payment shall commence on the first day of the month following (i) the month during which the individual attains age sixty-five (65) ... The payment of such Benefit shall continue until the individual‘s death ...
(5) Upon the death of a Pensioner or Employee, the Special Medicare Benefit will be paid to his surviving spouse if such spouse is eligible to receive Medical Benefits under this Article 12. Such surviving spouse shall continue to receive the Special Medicare Benefit until such spouse remarries, dies or is no longer eligible for Part B of Medicare.
JA at 185 (emphasis added). As the italicized language makes clear, § 12.15(h) promises that once a retiree reaches age sixty-five he or she will receive the Special Medicare Benefit until death. And upon death, the retiree‘s surviving spouse will continue to receive the Special Medicare Benefit until his or her death or remarriage.
When confronted with similar language in the past, we have held that it establishes an intent to vest retiree health benefits. See Policy v. Powell Pressed Steel Co., 770 F.2d 609, 615 (6th Cir.1985).3 In Policy, the CBA provided: “When said Pensioner reaches age 65, the Company will provide such Pensioner, at the Company‘s expense, supplemental medicare and major medical benefits. The Company will continue to provide at its expense, supplemental medicare and major medical benefits for Pensioners aged 65 and over.” Id. Reversing the district court‘s conclusion that the retirees’ benefits were not vested, Policy explained that the language of the supplemental medicare provision “unambiguously confers the stated health insurance benefits for the duration of the retiree‘s life.” Id. (emphasis added). The Policy court‘s determination finds support in the Seventh Circuit‘s decision in Bidlack v. Wheelabrator Corp., 993 F.2d 603, 608 (7th Cir.1993) (en banc), where Judge Posner, writing for the en banc court, explained that a similar provision could reasonably “be thought a promise to retired employees that they and their spouses will be covered for the rest of their lives. For the provision does not say ‘when they die or the collective bargaining agreement expires, whichever occurs first,’ but simply when they die.”
As with the provision involved in Policy, § 12.15(h)(3) promises to provide a Special Medicare Benefit from age sixty-five “until the individual‘s death.” We are in agreement with Policy, that promising to provide a benefit until a person dies undoubtedly means that the benefit lasts for the person‘s life. It is likewise clear to us that § 12.15(h)(5)‘s promise to provide the surviving spouse of a retiree with a Medicare supplement until he or she remarries or “dies” is a promise that the spouse of a retiree is entitled to lifetime benefits unless he or she remarries. See generally
Furthermore, adopting PolyOne‘s argument that Plaintiffs’ retiree health benefits have not vested would render portions of § 12.15(h) nugatory, and the promises contained therein illusory, in violation of Yard-Man and its progeny. See Yard-Man, 716 F.2d at 1480 (explaining that courts must construe CBA provisions “so as to render none nugatory and avoid illusory promises“). With regard to the analogous provision in Policy, this court explained that to interpret such a benefits provision as terminating at the end of the relevant CBA would create an illusory promise to those retirees who would not reach age sixty-five before the CBA‘s expiration. Policy, 770 F.2d at 615. According to Policy, the promise would be illusory because:
if a sixty-two year old employee with twenty years service retired on January 1, 1982, eight months before the collective bargaining agreement expired, and if the Company were correct in contending that the retiree‘s health insurance benefits ceased with the August 31, 1982, expiration of such agreement, then the Company‘s promise to provide supplemental Medicare ... to the retiree when he reached age sixty-five would be of no value.
Id.; see also Bailey v. AK Steel Corp., No. 1:06cv468, 2006 WL 2727732, at *6 (S.D.Ohio Sept. 22, 2006) (examining a similar Medicare supplement provision for retirees and concluding that the promise establishes an intent to vest because otherwise it would be illusory for many individuals who retired as young as age fifty-five). The same conclusion was reached in Yard-Man, where the CBA promised to provide certain benefits to retirees when they reached age sixty-five. Yard-Man, 716 F.2d at 1481 (explaining that if retiree benefits expired at the end of the CBA then the promise to provide certain benefits at age sixty-five “is completely illusory for many early retirees under age 62“); see also Maurer, 212 F.3d at 918 (explaining that, “[b]ecause the CBAs permit retirement at age 55 and promise insurance at age 65, the promise is meaningless if it could be terminated in three years“).
Similar to the provisions in Policy, Yard-Man, and Maurer, § 12.15(h) promises that upon the attainment of age sixty-five the company will begin to provide the Special Medicare Benefit to retirees. However, as in Maurer, employees of BFG could retire as early as age fifty-five under the company‘s early retirement plan. See § 4.2, JA at 194. For such early retirees, the promise of the Special Medicare Benefit is rendered illusory under the interpretation urged by PolyOne. See JA at 194, § 4.2. Likewise, § 12.15(h)‘s promise to provide the spouse of a deceased retiree with the Special Medicare Benefit until his or her death or remarriage would be rendered illusory were this court to agree with the district court and PolyOne. Under PolyOne‘s interpretation, the spouse of an individual who retired early at age fifty-five and passed away at age fifty-seven would never receive the promised Special Medicare Benefit even though he or she remained alive and never remarried.
Looking to another provision of the EBAs, § 12.14 also promises health benefits to the surviving spouse of a retiree until the spouse‘s death or remarriage. According to § 12.14:
The surviving spouse of an Employee who is retired by the Company on or after the effective date of this Agreement shall continue to be eligible to
receive such benefits to the earlier of the date of death or remarriage, provided such spouse, as of the date of death of such retired former Employee, was covered for these benefits as an eligible dependent....
JA at 184 (emphasis added). Accepting PolyOne‘s interpretation would require this court to rewrite § 12.14 to say that the spouse of a deceased retiree “shall continue to be eligible to receive such benefits to the earlier of the date of death or remarriage, or the expiration of this agreement.” No such limiting language is found in § 12.14, and courts should not add words to a contract under the guise of construing it. See Richard A. Lord, Williston on Contracts § 31:5 (4th ed.2007); see also Bidlack, 993 F.2d at 608 (explaining that such a provision does not say retiree benefits will be provided to surviving spouses “when they die or the collective bargaining agreement expires, whichever occurs first’ but simply when they die“). As with the promises made in § 12.15(h), holding that Plaintiffs’ health benefits have not vested would render § 12.14‘s promise of health benefits until death or remarriage illusory for the spouses of deceased retirees in violation of precedent.
4. Presence of Specific Vesting Language in Pension Provision
Next, PolyOne argues that the fact that the EBAs used explicit vesting language with regard to pension benefits leads to the conclusion that the absence of such explicit vesting language in the retiree health benefits provisions indicates that they have not vested. The district court was persuaded by this argument, noting that Article 6 of the EBA “contains strong language stating that pension payments shall be payable monthly ‘during the life of such Employee, the last payment thereof being payable for the month in which he dies.‘” Noe, 2006 WL 3759601, at *4 (quoting § 6.1(a) of the EBA, JA at 197). According to the district court, the absence of such language in the retiree health benefits portion of the EBAs suggests that the parties did not intend for them to vest.
However, the district court neglected to notice the similarity between § 6.1(a)‘s language and that found in § 12.15(h), which provides that the Special Medicare Benefit will commence when the retiree reaches age sixty-five and “[t]he payment of such Benefit shall continue until the individual‘s death.” JA at 185. In our opinion, § 6.1(a)‘s promise to pay a monthly pension “during the life of such employee” is indistinguishable from § 12.15(h)‘s promise to pay the Special Medicare Benefit “until the individual‘s death.” It is axiomatic that promising to provide a benefit for an individual‘s life (§ 6.1(a)) is the functional equivalent of promising to provide a benefit until an individual‘s death (§ 12.15(h)). Any argument to the contrary is mere semantics and defies common sense.
In the same vein, PolyOne asserts that the presence in § 8.5 of language specifically indicating that pension benefits survive the expiration of the EBAs, and the absence of such language with regard to retiree health benefits demonstrates that Plaintiffs’ health benefits have not vested. Section 8.5 states: “No Pension or other benefit granted prior to the time of such termination shall be reduced, suspended or discontinued except as specifically provided in this Pension Plan.” JA at 201. The force of this argument is blunted first by the provisions discussed above that under our precedent do indicate an intent to vest, and second by the existence of various provisions in the EBAs that have specific termination language, whereas the retiree health benefits provisions have none.
The presence of specific durational language in other provisions and its absence in the retiree health benefits provisions
Thus, these arguments, essentially predicated on the expressio unius est exclusio alterius canon of interpretation, work to the benefit and detriment of each party. Accordingly, the language in § 8.5 offers little support for PolyOne‘s argument that Plaintiffs’ health benefits were not intended to vest. This is especially true given the various provisions discussed above that indicate an intent to vest Plaintiffs’ health benefits.4
As the foregoing analysis makes clear, there is nothing earth-shattering about our holding in this case; it is merely the straightforward application of this circuit‘s case law.5 The dissent‘s contention that we have turned Yard-Man into some sort of a presumption in favor of vesting is premised on a misreading of the court‘s opinion. One can search this opinion in vain for any indication—or even a suggestion—that we presume retiree health benefits were intended to vest absent a clear statement to the contrary. All we have done today is follow the instructions of Yard-Man and its progeny by examining the provisions of the EBAs and applying traditional principles of contract interpretation to ascertain whether the parties intended to vest retiree health benefits. See Yard-Man, 716 F.2d at 1479-80. While the dissent is correct that—beginning with Yard-Man—this court has approached the vesting issue differently than have many of our sister circuits, this panel is not at liberty to cast aside nearly twenty-four years of precedent in order to charter a new course, no matter how desirable that new course may be.
Having addressed the EBAs and explained why the district court erred in granting summary judgment for PolyOne, we proceed now to analyze whether Plaintiff Hood‘s health benefits under the Flex Program have vested.
D. The Flex Program
Unlike the other Plaintiffs, Plaintiff Hood‘s health benefits are governed by the Flex Program because her now-deceased husband retired from BFG in 1990, two years after the Flex Program replaced the EBAs. Although it is clear from our review of the record that the provisions of the Flex Program differ from those in the EBAs, the district court‘s opinion failed to address whether Plaintiff Hood‘s benefits have vested under the Flex Program. In all likelihood, the district court‘s failure to address this issue resulted from the parties’ failure to explain to the court how Plaintiff Hood‘s claim differed from that of the other Plaintiffs. Similarly—aside from PolyOne‘s brief mention of a reservation of rights clause found in the Flex Program‘s Summary Plan Description—neither party has provided this court with any analysis of the Flex Program‘s language or argument as to whether it evinces an intent to vest retiree benefits. Accordingly, whether Plaintiff Hood‘s benefits have vested under the Flex Program is an issue that the district court must consider on remand.
III. CONCLUSION
We are cognizant of the overall climate in which this case reaches the court; rising healthcare costs and foreign competition have certainly placed corporations such as PolyOne in a difficult economic position. However, in the absence of impossibility of performance, it is not the prerogative of the judiciary to rewrite contracts in order to rescue parties from “their improvident commitments.” Bidlack, 993 F.2d at 609. Because the district court erred in concluding that the EBAs do not indicate an intent to vest Plaintiffs’ health benefits, we VACATE the district court‘s decision granting summary judgment for PolyOne and REMAND the matter for further proceedings consistent with this opinion.
SUTTON, Circuit Judge, concurring in part and dissenting in part.
Applying the Yard-Man line of cases to these agreements, the district court concluded as a matter of law that the claimants’ healthcare benefits do not vest upon retirement. Applying the same cases to these agreements, the majority concludes as a matter of law that the claimants’ healthcare benefits do vest upon retirement. They are both partly right, which is
My first objection to the majority‘s approach is its treatment of the claimants as if the employee-benefit agreements covered them directly. That is not the case. The agreements bear on this case only because a separate memorandum of understanding incorporates them. And that memorandum independently limits any expectations claimants otherwise might have about their future healthcare benefits. As agreed to by the claimants, the memorandum says that, if certain other unions representing other BFGoodrich workers change their members’ retiree health benefits—in negotiations not involving the claimants’ union, no less—those changes immediately will alter the benefits of the soon-to-be retirees of the claimants’ union. See JA 646 (“[I]f during the term of this Agreement the Plan or Programs are changed for [the] majority [of BFGoodrich‘s other production and maintenance employees], such changes shall be made effective on the same date they are made effective for [that] majority ... and remain in effect for the life of this Agreement.“). That means that, if these other unions and BFGoodrich amend their plans and eliminate (or curtail) retiree health benefits, the soon-to-be-retirees of the claimants’ union, even someone who planned to retire the next day and anticipated receiving health benefits for life, will be stuck with the change—at least until the next round of negotiations. That is not the kind of provision that naturally inspires a worker to believe his benefits are fixed for life.
The durational language in § 16.4 of the employee-benefit agreements likewise undercuts the claimants’ argument that their benefits are immutable for life as a matter of law. It says that, “[u]pon termination, this Agreement shall terminate in all respects except that the benefits provided by it shall be extended for ninety (90) days following such termination.” On its face, the agreement undermines any expectation that the healthcare benefits a worker happens to receive at retirement are the benefits he will receive throughout retirement.
Our cases, it is true, appear not to give any weight to “general” durational clauses in collective bargaining agreements when those clauses do “not specifically refer to the duration of benefits.” UAW v. Yard-Man, Inc., 716 F.2d 1476, 1482 (6th Cir.1983). In Yard-Man, we gave no weight to a durational clause providing that the CBA should remain in effect until a particular date because the clause did not “specifically refer to the duration of benefits.” Id. Similarly, in Maurer v. Joy Technologies, Inc., 212 F.3d 907, 918 (6th Cir.2000), we concluded that provisions indicating that the CBA and certain other agreements shall terminate on a particular date were “general in nature” because they “only refer[red] to agreements between the parties, not to benefits created by the agreements.” Id. at 918 (emphasis added). But § 16.4 of the agreement does “specifically refer to the duration of benefits.” Indeed, this language satisfies even the suggestion in Yolton that the durational clause must refer to the “retiree benefits themselves.” Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571, 581 (6th Cir.2006). Surely one type of benefits to which the clause could be referring is retiree benefits. If the majority means to say that a durational clause means nothing unless it says that “retiree health benefits” terminate (or may be terminated) at a given point, then it must be saying what our cases (including Yolton itself) have long disclaimed saying—that the Yard-Man inference creates a presumption in favor of vesting that may be countered only by a clear statement. See id. at 579. More on that later.
That is particularly so here in view of the conspicuous inclusion of vesting language in the pension benefits section of the agreement and its conspicuous omission in the healthcare benefits section of the agreement. The pension section of the agreement says: “No Pension or other benefit granted prior to the time of [the] termination [of the Pension Plan] shall be reduced, suspended or discontinued except as specifically provided in this Pension Plan. In the event of termination or partial termination of this Pension Plan, the rights of the Employees to benefits accrued to the date of such termination, to the extent then funded, shall be nonforfeitable....” Now that is vesting language. Yet nothing like it appears in the healthcare benefits section of the agreement. If our cases are going to rely on similarities between pension benefits and healthcare benefits (such as similar eligibility dates) in determining what has vested, they should not ignore marked differences (such as different language about vesting) in making the same inquiry. Either they both are relevant to the vesting question, or neither is.
Although §§ 12.15(h) and 12.14 of the agreement provide some support for the retirees’ claim, they too do not establish unalterable benefits for life. Section 12.15(h), as the retirees emphasize, says that “a Special Medicare Benefit” will be paid to certain employees, pensioners and surviving spouses. But the retirees overlook the first sentence of that provision, which adds that those individuals will be provided with “a Special Medicare Benefit” only ”if such Employee, Pensioner or surviving spouse is covered for Medical Benefits under this Article 12.” (emphasis added). Read together with the introductory language to Article 12—which says that the company will provide the benefits discussed in Article 12 “for the duration of this Agreement“—this provision does not unambiguously vest the retirees’ health benefits. The claimants’ reliance on § 12.14 suffers from a similar problem.
Even if I were to ignore all of this, I still do not know what has vested as a matter
While there is no reason to think the company is heading in this direction, I fail to see how we can hold that benefits have vested as a matter of law when we do not know what has vested and on what terms. In a case like this one—where the memorandum of understanding and durational language point in the company‘s direction, the tying language (at least some of it) and §§ 12.14 and 12.15(h) point in the retirees’ direction and the extrinsic evidence points in both directions—I would prefer to leave these contractual ambiguities for resolution in the forum in which they belong: a jury.
One last point. The majority‘s conclusion to the contrary suggests that the Yard-Man inference has become a rebuttable presumption—one that may be overcome only by a clear-statement reservation of rights. “[A]bsent specific durational language referring to retiree benefits themselves,” as the majority puts it, healthcare benefits vest as a matter of law.
The majority disclaims doing any such thing. ”Yard-Man,” it says, “does not create a legal presumption that retiree benefits are interminable” but rather “is properly understood as creating an inference only if the context and other available evidence indicate an intent to vest.” We have said the same thing before. See, e.g., Yolton, 435 F.3d at 580 (“[U]nder Yard-Man, there is no legal presumption that benefits vest and ... the burden of proof rests on plaintiffs. This Court has never inferred an intent to vest benefits in the absence of either explicit contractual language or extrinsic evidence indicating such an intent.“) (internal quotation marks, citations and alterations omitted).
But other circuits and observers, looking at what we have said and done in applying the Yard-Man inference have called it a presumption. See, e.g., Rossetto v. Pabst Brewing Co., 217 F.3d 539, 543 (7th Cir.2000) (“One case [i.e., Yard-Man] holds that benefits are presumed to vest if they are conferred by a collective bargaining agreement....“) (emphasis added); UAW v. Skinner Engine Co., 188 F.3d 130, 140 (3d Cir.1999) (“We cannot agree with Yard-Man and its progeny that there exists a presumption of lifetime benefits in the context of employee welfare benefits.“) (emphasis added); Am. Fed‘n of Grain Millers v. Int‘l Multifoods Corp., 116 F.3d 976, 980 n. 3 (2d Cir.1997) (citing Yard-Man as a case that “apparently presumed that retiree benefits are vested“) (emphasis added); Roger C. Siske et al., What‘s New in Employee Benefits (ALI-ABA Course of Study, July 1-5, 2002), WL SH011 ALI-ABA 59, 322 (“The Sixth Circuit presumes vesting and requires a clear statement of termination to prove otherwise.“) (emphasis added).
I see their point. What started out as a potential inference became an omnipresent presumption and now appears to have become a clear-statement rule. Unless a company can point to explicit language in the relevant agreement stating that “retiree benefits” terminate at a particular date or do not vest, the benefits seem to vest as a matter of law. What we continually disclaim presuming we continually seem to presume.
In the majority‘s defense, perhaps the problem is the ineffable nature of the inference. If we were writing on a clean slate, I could imagine three straightforward approaches to the problem. One: adopt the position of several circuits and create a presumption against vesting because a company‘s unchangeable promise to pay healthcare benefits for life is a significant and unusual one—particularly when it arises from a three-year contract. See Bidlack v. Wheelabrator Corp., 993 F.2d 603, 606-07 (7th Cir.1993) (“No doubt a court should cast a cold eye on contentions that a contract with a fixed term actually created a perpetual obligation, and should, therefore, ... presume that a collective bargaining agreement ceases to obligate the employer when the agreement‘s term (invariably three years) is up.“); see also Skinner, 188 F.3d at 139 (“[I]t must be remembered that to vest benefits is to render them forever unalterable. Because vesting of welfare plan benefits constitutes an extra-ERISA commitment, an employer‘s commitment to vest such benefits is not to be inferred lightly and must be stated in clear and express language.“); Gable v. Sweetheart Cup Co., 35 F.3d 851, 855 (4th Cir.1994) (same); cf. Anderson v. Alpha Portland Indus., Inc., 836 F.2d 1512, 1517 (8th Cir.1988) (“disagree[ing] with Yard-Man to the extent that it recognizes an inference of an intent to vest” and suggesting that “there must be a specific, if not written, expression of the employer‘s intent to be bound“) (internal quotation marks omitted).
Two: adopt the position no circuit has yet taken that there should be a presumption in favor of vesting because retirees who lose benefits often are not in a position either to return to work or to require their union to negotiate new benefits.
Three: do not adopt any presumption because these contracts should be interpreted no differently from other collectively bargained contracts. See generally Senior v. NSTAR Elec. & Gas Corp., 449 F.3d 206, 218 (1st Cir.2006) (applying the “traditional principles of labor contract interpretation” because, among other reasons, using a presumption or requiring “certain customary words” might “interfere with the correct interpretation ... of the understanding reached by the parties” and “Congress could easily have created interpretive presumptions by statute” but chose not to).
Yard-Man contemplates an in-between inference—not quite a presumption in favor of vesting but not quite a straight interpretive question either. Yet I wonder whether that slices things so finely that it places the rule beyond predictable and fair application—a little like adopting a standard of review between intermediate and strict scrutiny or a level of deference between Chevron and Skidmore.
The salient point is that the inference, as this case well shows, has become a presumption. And we should either say that is what we are doing—and spare future panels, the district courts and litigants the confusion the inference has created—or abandon the inference altogether.
UNITED STATES of America, Plaintiff-Appellee, v. Jose Eduardo URRIETA, Defendant-Appellant.
No. 07-5431.
United States Court of Appeals, Sixth Circuit.
Argued: Jan. 30, 2008. Decided and Filed: March 20, 2008.