*1 'lMed. Ins. came v. in the facts” change “significant Prof Murff 290 n. neighbor later, when in October on which the statement signed a notarized But that assertion is rely.
company could in liti- change its by company’s
belied September 2010—with- position
gating file counter- a notarized statement —to out CORPORATION; WINDSTREAM action. state-court Spencer’s claims in Committee; Benefits Windstream in Sep- information Annett no more had Systems the Midwest of by alleged it fraud 2010 when tember Inc.; of Telecommunications in June 2010 possessed than it Spencer LP, doing business as Wind Texas liability for Spencer’s when it admitted Southwest, stream Communications petition to a for alter- injury response Plaintiffs-Appellees simply changed care. The nate “significant change in without a position its no facts.” There was abuse discre- GRAGNANO; Bain Lido DA Forrest judicial estoppel. in applying Craig Wallace; Byron Spainh
tion bridge; Kiser; Andrews;
our;
Jack
Patrick
which law to
question
Stolte;
Mascioni;
On
Rose
Mario
John
Cardinale; Betty
Bassinger;
court was bound
apply, the district
M.
Ed
law,
Buzonas, Sr.; Anita J.
precedent
apply
circuit
Iowa
but we
ward J.
Star
key, Defendants
law would lead to a
do not think federal
event. Under fed
different result
Johnny Lee, Individually
Repre
and as
law,
judicial estoppel applies
eral
when
Similarly
sentative of Persons
Situ
litigating position
party having taken one
—
ated, Defendant-Appellant
successfully persuaded
a court
derive an un
adopt
position
Bruns;
Rodriguez;
E.
Armando T.
Jack
—would
Mary
Winters;
Strom;
E.
advantage
impose
fair
an unfair detri
David C.
Raymond
Wieland;
E.
Helen E.
party by taking
opposing
ment on
Meekins;
Franks;
A.
Arlene
Homer
litigation.
New
contrary position
new
Crouch-Hill;
Randall; Pau
Jean L.
Maine,
Hampshire v.
532 U.S.
750-
Hale;
Robinson;
line Y.
Helen M.
(2001).
munications Cross
dant-Appellee.
No. 13-1723. Appeals,
United States Court
Eighth Circuit. April 2014.
Submitted: July
Filed: 2014. July
Corrected: En
Rehearing Rehearing Banc 15, 2014. Aug.
Denied MURPHY, Circuit LOKEN and
Before LIMBAUGH,1 Judge. District Judges, and MURPHY, Judge. Circuit In 2009 Windstream Communications *3 subsidy paid it premium modified in its medical employees enrolled former company plan for retirees. benefits against filed this action November chal- other retirees who Johnny Lee and modify retir- authority to lenged company unilaterally. Windstream ee benefits it has declaratory judgment that sought a pre- authority modify retiree benefit violating ei- mium contributions without agreement a collective ther Workers with the Communications (CWA) Employee or the Retire- America (ERISA). Lee Security Income Act ment only retiree to answer Wind- later complaint, stream’s CWA of contract claim intervened with breach § against under Windstream Act Management Relations Labor (LMRA). filed a motion Windstream summary judgment on all January 2013 for granted claims. The district court2 Wind- requested motion and a declarato- stream’s It further dismissed the ry judgment. a claim. suit for failure to state CWA’s appeal, and we affirm. Lee and CWA Austin, TX, Os, argued, Matt David Van I. Austin, Holder, brief, TX, L. John on the acquisition Before its brief, Rock, AR, Burnett, Little for on the Communications, Telecommunica- Valor
Appellant. year three negotiated tions a series of Krumholz, Dal- argued, Richard bargaining agreements Samson with the Miller, brief, las, TX, on the Hous- Mark memoranda of Separate CWA. Williams, (MOA) ton, TX, Louise Richard were at- Rachel on retiree health benefits Krumholz, brief, Dallas, In bargaining agreement. on the tached to each Samson Lancaster, Price, TX, agreed R. and union an Troy Stephen A. MOA, Kaemmerling, M. on the “to retiree medical and Michelle Rock, AR, employees retire brief, eligible who between Appellee. Little Holmes, Jr., United Stephen Limbaugh, 2. The Honorable J. Leon 1. The Honorable N. Judge Judge for the Eastern District for the Eastern States District United States District Missouri, sitting by designation. of Arkansas. District February pay percentage/amount 2008 ... will of the [re- March 2005 and (“Com- and their beneficiaries.” premium tiree medical benefit] pany Percentage/Amount”) Contribution paragraph first of the 2005 MOA During ... the term of this Memoran- type “the level and of Retiree states that Agreement, dum of the Company and governed by Medical Benefits shall be retiree Contribution Percent- Retire Health and Welfare Sum- ages/Amount will be based on the follow- mary Paragraph Plan Description.” ing states that Valor contribution schedule: Company Years of Accredited C ibution Retiree Contribution Percentage Percentage/Amount Service at Retirement Less than 10 S s through through © OO *4 © Ci through o through 80 90 © tO 30 and over H © plan description they contains a dates of the MOAs under which re- The Valor company of the contribution tired. reproduction It that it “main- schedule. also states is acquired by Valor was Windstream bargain- pursuant
tained in and Communications its name was the and that ing agreement” with CWA changed to Communications Windstream agreement will “the collective Southwest. Windstream maintains a com- control” where the two conflict. Another prehensive group plan insurance. Sec- provision company declares that the “re- tions 9.01 and 10.01 of the Windstream terminate, amend, right serves the to or comprehensive plan right secure the of the replace the Telecommunications Valor Windstream board directors to “amend Plan, part, any any in whole or in time for part any this Plan in whole or in time reason.” any and for reason” and to “terminate this any Plan at time.”
Johnny Lee worked for Valor and its in 2008 Windstream informed the CWA twenty eight years and predecessors changing pre- of its interest in its retiree was a member of the CWA collective bar- per mium contribution to a flat month $80 gaining unit. When Lee retired March per age for retirees under 65 and $17 2006, he enrolled in the Valor retiree 65 and The aged month for retirees older. plan under the terms of the 2005 health company the modification when abandoned twenty MOA. Because of his more than it, to agree the indicated it would not CWA five, thirty, years but less than of accredit- agreed carry and instead to parties the company, paid ed service to the 80% contribution schedule graduated over the premium. of Lee’s retiree health benefit from the 2005 MOA to the 2008 MOA. pocket Lee’s out of cost for his and his They following para- the did however add coverage medical wife’s $125 $140 graph not found in the 2005 MOA: though the 2005 per month. Even MOA agrees notify the Union expired Company which he retired on Febru- The under 28, 2008, the and to discuss its actions should ary Valor continued Lee’s bene- funding that the or beyond Company determine fits and subsidies that date. Valor applicable operation health of the also continued the retiree and/or Agree- Memorandum of employees beyond expiration sections of this of other per job so he could afford the ment, $550 or rescinded $500 to modified need be health insurance. pays of month he now of the Articles expiration prior to her replace has been unable to are unable His wife parties If the Agreement coverage. changes, the lost on such to reach funding operation and/or May suing intervened CWA of this Memorandum applicable sections under for breach of contract Windstream relating to Agreement, those sections § LMRA. filed this 301 of type of Retiree Medical the level and summary judg- January 2013 for motion rescinded at modified or Benefits will be against ment each of the class defendants Company’s discretion. asked the and the CWA. include (1) MOA did not Although the 2005 modifi- district court to declare that part it had been paragraph, this sched- cations it made to contribution 1992, 1995, and 1998. negotiated in enforceable, MOAs effective and legally ule were eligibility for bene- (2) The 2008 MOA limited modifications did not violate who retired between employees Plan, fits to ERISA, the Windstream or February February 2008 and bargaining agreement, and CWA collective (3) amend, modify, it has the or notified Sometime 2009 Windstream provisions terminate the of its circum- changed economic the CWA unilaterally. pre- of its required stances modification *5 parties held mium contributions. court that the The district determined agree failed to on a negotiations but comprehensive plan, the Val- of The Windstream board modification. summary description, and the plan to re- directors then voted November bargaining agree- and 2008 collective 2005 to the duce retiree benefit contributions along ments with their attached MOAs rejected in proposed flat rates and 2008 formed the docu- together ERISA for retiree and to discontinue subsidies ments. The court then concluded that dependants. Lee and sever- spouses and each of these documents contained reser- objected employees al other retired Valor securing clauses the com- rights vation of change, disputing to the Windstream’s pany’s right modify to the retiree health modify retiree health and wel- right to plan, including its contribution fare benefits without their consent. amounts, unilaterally. accordingly It granted February motion in Windstream’s this
In December 2009 Windstream filed
2013, declaring
company’s right
to
against
action in federal district court
class
unilaterally
modify its contribution
with-
retirees, seeking a
objecting
Lee and other
violating
out
ERISA or the
it had a
declaratory judgment that
agreement,
entering
default
unilaterally
amend retiree health benefits
defendants,
nonresponsive
and
against the
and that the modification of its contribu-
dismissing the
cross suit for fail-
CWA’s
or the
tion schedule did not violate ERISA
appeals
ure to state a claim. Lee
bargaining agreement.
collective
Lee
summary and de-
grant
district court’s
only
class defendant
to answer the
Windstream, and
claratory judgment
modification
effec-
complaint. became
appeals
the CWA
the dismissal of its
1, 2010,
July
tive on
and Windstream’s
breach of contract claim.
health
contribution to Lee’s retiree
bene-
dropped
fits
from between
and
$625
$700
II.
longer
per
per
month to
month. No
$80
summary judg-
grant
review the
coverage
able to retain medical
under the We
novo,
and
viewing
time ment de
all facts
draw-
subsidy,
part
reduced
Lee
obtained
“incorporated
inferences in favor of the
are
into the formal
ing all reasonable
writ-
Argenyi
Creighton
v.
nonmoving party.
plan.”
Paperworkers
ten ERISA
United
Cir.2013).
(8th
Univ.,
441,
703 F.3d
Union, AFL-CIO,
Int’l
CLC v. Jefferson
unambiguous
of an
contract
Construction
(8th
Corp., 961 F.2d
Smurfit
appropriate
of law
for sum
question
is “a
Cir.1992).
Citibank,
v.
mary judgment,” McCormack
correctly
The district court
deter
Cir.1996).
(8th
N.A.,
100 F.3d
comprehensive
mined that the Windstream
However,
ambiguous
construction of an
plan,
description,
and the
question precluding
contract is a factual
comprised
2005 and 2008 MOAs
evi
summary judgment “unless extrinsic
ERISA
documents here. Because of
v. Famous
dence is conclusive.” Thomsen
importance
“the
of disclosure to the
Inc.,
(8th
Am.,
Dave’s
F.3d
statutory regime,”
ERISA
we have deter
Cir.2010).
“employee
mined that an
can
expected
be
Lee and the
assert that the
CWA
rely
summary plan description.”
on the
negotiating history
and
of the 2005
text
Co.,
Jobe v. Medical
Ins.
Life
question
compa
a factual
MOA create
(8th Cir.2010) (internal
quotation
ny retiree benefit contributions were
omitted).
marks
brackets
When ex
promised for the lifetime of the retirees
amining a
bargaining agreement
unilaterally
and could not be
modified
promises,
for retiree benefit
we look to the
company.
pro
301 of LMRA
Section
in effect at the time the em
remedy
employ
for retirees
vides
whose
Cork,
ployee retired. Crown
501 F.3d at
rights
ers have
vested retirement
modified
plan descrip
915-16. Because the Valor
their consent.
&
without
Allied Chem.
tion
that it
pursuant
states
is maintained
Am., Local
Alkali Workers
Union No.
bargaining agreement,
we look to
Div.,
Pittsburgh
Plate Glass
Chem.
language
of the 2005 MOA for a con
157, 182,
404 U.S.
92 S.Ct.
30 L.Ed.2d
promise
tractual
vested retiree
(1971).
also have an
Unions
enforce
*6
health benefits.
§
assuring
able interest under
301 “in
negotiated retirement benefits are in fact
To obtain a reversal of the district
paid and administered in accordance with
judgment,
court
Lee must demonstrate
the terms and intent of their contracts.”
plan language,
that the
when viewed in the
Id. at 176 n.
stated that “reserves the III. terminate, amend, right to replace Plan, ... in in part, any whole or at time We conclude even when read Although reason.” a conflicting light negotiating history, of its the 2005 provision in the bargaining “reasonably susceptible MOA is not control, Paragraph would 6 of meaning” that Lee’s retiree health benefits I, every permanently appeal provid- were vested. John Morrell MOA the record on accordingly F.2d at 551. We affirm ed: the district court in favor of The level and administration of the Re- Windstream. Benefits; tiree Medical amount or cost premiums; premium pricing mecha- LOKEN, Judge, concurring, Circuit nisms; the attainment of the Maximum LIMBAUGH, Judge, with whom District Company Contribution Amount ... joins. all terms and conditions related [and] agree Johnny I that appellants Lee and Compa- hereto shall rest with the the Union failed to submit extrinsic evi- ny.... demonstrating dence that ERISA Together, provisions these resolve the is- documents, MOAs, including the evidenced sue. There is no affirmative indication of an intent to permanently vest retiree document, vesting any plan including place health benefits at the levels in when Paragraph the 2005 and 2008 MOAs. a member of the unit such as (quoted that was added to the 2008 MOA However, view, my Lee retired. we ante) page provisions was similar to need not reach this issue. Because 1992, 1995, MOAs, in the and 1998 but does not mandate employee ERISA vested with one critical difference. Those earlier benefits, employer welfare “unless an provisions company’s excluded from the contractually agreed has vested *8 notify the Union and discuss benefits, may unilaterally retiree health it changes, the need for unilateral “those sec- modify or terminate the benefits relating type level and of tions Union, Maytag Corp. time.” v. Int’l changing Retiree Medical Benefits.” The UAW, “[Tjhere provision, of this when read in con- scope must be an affirmative indication junction with confirms that vesting Paragraph documents to over- “notify-and-confer” in these bargain agreeing simply
provisions was Union, importance issues of
specific exercising its reserved
before op- changes. This is
make unilateral of vest- indication an affirmative
posite of circumstances, evi- extrinsic In these
ing. considered. may not be
dence Lee summary judgment, opposing
In no affirmative presented
and the Union medical that retiree evidence
contractual vested, only evidence were subject period- were the
retiree benefits prior cases bargaining. Our
ic collective far more to defeat Windstream’s
required entry judgment and summary
motion requested. it declaratory America,
UNITED STATES
Plaintiff-Appellee Benjamin THOMAS,
Joseph
Defendant-Appellant.
No. 13-1945. Appeals,
United States Court
Eighth Circuit. Nov. 2013.
Submitted: July 2014.
Filed: July
Corrected: Menendez, AFPD, argued, M.
Katherine Purdes, MN, Jennifer M. Minneapolis, Clerk, Appellant. Law