John Gallo v. Moen Incorporated

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 16a0030p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JOHN L. GALLO, et al., ┐

Plaintiffs-Appellees, │

│

│ Nos. 14-3633/3918

v. │

>

│

MOEN INCORPORATED, │

Defendant-Appellant. │

┘

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 1:13-cv-02440—James S. Gwin, District Judge.

Argued: October 15, 2015

Decided and Filed: February 8, 2016

Before: BOGGS, SUTTON, and STRANCH, Circuit Judges.

_________________

COUNSEL

ARGUED: Bobby Roy Burchfield, MCDERMOTT WILL & EMERY LLP, Washington, D.C.,

for Appellant. Joyce Goldstein, GOLDSTEIN GRAGEL LLC, Cleveland, Ohio, for Appellees.

ON BRIEF: Bobby Roy Burchfield, Joshua David Rogaczewski, MCDERMOTT WILL &

EMERY LLP, Washington, D.C., Kirk Watkins, MCDERMOTT WILL & EMERY LLP,

Chicago, Illinois, for Appellant. Joyce Goldstein, Richard L. Stoper, Jr., GOLDSTEIN

GRAGEL LLC, Cleveland, Ohio, for Appellees. Douglas A. Darch, BAKER & MCKENZIE

LLP, Chicago, Illinois, Christopher Landau, K. Winn Allen, KIRKLAND & ELLIS LLP,

Washington, D.C., for Amici Curiae.

SUTTON, J., delivered the opinion of the court in which BOGGS, J., joined.

STRANCH, J. (pp. 14–24), delivered a separate dissenting opinion.

1

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 2

_________________

OPINION

_________________

SUTTON, Circuit Judge. At issue is whether several collective bargaining agreements

entitle a class of retirees from Moen Inc. to vested healthcare benefits for life. The district court

granted relief to the class based on UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1983), and

other Sixth Circuit decisions applying Yard-Man. In M&G Polymers USA, LLC v. Tackett,

135 S. Ct. 926 (2015), decided after the district court’s decision in this case, the Court repudiated

the Yard-Man line of cases. Consistent with Tackett, we must reverse the district court’s

decision.

I.

Between 1983 and 2005, Moen and its predecessor corporation entered into a series of

(usually) three-year collective bargaining agreements (often called CBAs) with the International

Union, United Automobile, Aerospace and Agricultural Implement Workers of America and its

local affiliate. Each agreement offered two types of health-related benefits to individuals who

retired from Moen’s plant in Elyria, Ohio: (1) hospitalization, surgical, and medical coverage

and (2) Medicare Part B premium reimbursements, which compensated retirees for the expenses

of participating in the federal government’s medical insurance program. Employees who retired

between August 8, 1983, and March 1, 1996, along with their dependents, received “[c]ontinued

hospitalization, surgical and medical coverage . . . without cost.” E.g., R. 52-11 at 42; R. 52-14

at 76. If the retirees were over age 65, the company also reimbursed the full cost of their

Medicare Part B premiums, and it did the same for retirees’ spouses over age 65. Employees

who retired on or after March 1, 1996, along with their dependents, received hospitalization,

surgical, and medical coverage upon payment of a co-premium. “The co-premium amount for

the retiree,” the CBAs provided, “will be frozen at the co-premium in effect at [the] time of

retirement.” E.g., R. 52-15 at 37; R. 52-18 at 36. If over 65, these retirees (plus their over-65

spouses) received Medicare Part B premium reimbursements at specified rates.

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 3

The parties terminated the last CBA in 2008, when Moen shut down its Elyria operations.

The UAW and its local affiliate entered into a “Closure Effects Agreement” with Moen,

providing that healthcare coverage “shall continue” for retirees and their spouses “as indicated

under the [final] Collective Bargaining Agreement.” R. 52-23 at 2, 7. The plant closed in

December 2008.

After the plant closed, Moen continued to provide the same healthcare benefits to its

retirees for a while. In March 2013, the company decreased the benefits available for retirees in

response to “recent Medicare improvements” and “more effective supplemental benefit plans,”

as well as the federal government’s imposition of an excise tax on high-cost “Cadillac plans”

through the Patient Protection and Affordable Care Act, see 26 U.S.C. § 4980I. R. 51-31 at 1;

R. 52-30 at 5. After the changes, Medicare-eligible retirees no longer received healthcare

coverage or Part B premium reimbursements, and the company shifted non-Medicare-eligible

retirees to a healthcare plan that required higher out-of-pocket payments.

Seven retirees and the UAW sued Moen in response. The retirees argued that their

healthcare benefits had “vested” under the CBAs and the plant closing agreement, prohibiting

Moen from changing their coverage. The district court certified a class of “all Moen healthcare

benefits plan participants” who had retired from the Elyria plant and who were not covered by an

earlier settlement agreement. R. 42 at 2. The class includes roughly 200 individuals. Both

parties filed motions for summary judgment, and the district court granted the plaintiffs’ motion.

Relying on Yard-Man, the court concluded that the CBAs and the plant closing agreement

required Moen to offer the same healthcare benefits to the retirees for life. The court also

granted $776,767.19 in attorney’s fees and costs to the plaintiffs. Moen appealed.

II.

M&G Polymers USA, LLC v. Tackett, 135 S. Ct. 926 (2015), orients this appeal.

In reversing a decision from our court, the Supreme Court instructed us to interpret collective

bargaining agreements “according to ordinary principles of contract law.” Id. at 933. The Court

then instructed us what not to do in applying these principles. It repudiated Yard-Man and its

heirs, directing us not to “plac[e] a thumb on the scale in favor of vested retiree benefits in all

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 4

collective-bargaining agreements.” Id. at 935. It rejected our prior “inferences” in favor of

vesting healthcare benefits for life as “too speculative and too far removed from the context of

any particular contract to be useful in discerning the parties’ intention.” Id. It rejected our prior

assumption that “retiree health care benefits are not subjects of mandatory collective

bargaining,” pointing out that parties frequently “voluntarily agree” to bargain about retiree

healthcare. Id. at 936. It rejected our “premise that retiree benefits are a form of deferred

compensation,” reminding us that Congress has rejected that premise. Id.; see 29 U.S.C.

§ 1002(1), (2)(A)(ii). It directed us to consider the general durational clauses in the CBAs

(usually three years) in deciding how long a company has committed to provide healthcare

benefits to retirees. 135 S. Ct. at 936. It told us that “courts should not construe ambiguous

writings to create lifetime promises.” Id. And it explained that, “when a contract is silent as to

the duration of retiree benefits, a court may not infer that the parties intended those benefits to

vest for life.” Id. at 937; see generally Tackett v. M&G Polymers USA, LLC, No. 12-3329,

2016 WL 240414, at *3–4 (6th Cir. Jan. 21, 2016).

The Court offered one more piece of guidance. At the same time it rejected Yard-Man, it

endorsed our decision in Sprague v. General Motors Corp., 133 F.3d 388 (6th Cir. 1998)

(en banc). Sprague rejected the application of Yard-Man in the context of noncollectively

bargained contracts about retiree healthcare benefits and refused to infer from silence and

ambiguous contracts a commitment to unalterable healthcare benefits to retirees for life. Id. at

400. Tackett thus directed us to treat collectively and noncollectively bargained contracts about

retiree healthcare benefits similarly—to apply the same basic rules of contract interpretation to

both sets of contracts. See 135 S. Ct. at 936–37.

Guided by the Court’s directives about what to do and what not to do in this area, we

must conclude that the Moen-UAW collective bargaining agreements do not provide unalterable

healthcare benefits for life to the Elyria retirees and their dependents. Here are the key

provisions of the 2005 CBA, similar in relevant part to the earlier CBAs:

Continued hospitalization, surgical and medical coverage will be provided

without cost to past pensioners and their dependents prior to March 1, 1996.

...

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 5

Effective March 1, 1996, future retirees will be covered under the new medical

plan. The co-premium amount for the retiree will be frozen at the co-premium in

effect at time of retirement.

...

Future retirees as of [January 1999] will be reimbursed for Medicare Part B for

employee and spouse at Medicare Part B $45.50/$91.00.

R. 52-18 at 36.

First and foremost, nothing in this or any of the other CBAs says that Moen committed to

provide unalterable healthcare benefits to retirees and their spouses for life. That is what

matters, and that is where the plaintiffs fall short. Tackett directs us to apply ordinary contract

principles and not to tilt the inquiry in favor of vesting—a frame of reference that prompts two

questions. What is the contract right that the plaintiffs seek to vindicate? And does the contract

contain that right? The plaintiffs claim a right to healthcare benefits for life. But the contracts

never make that commitment. Yes, Moen offered retirees healthcare benefits. And yes Moen,

like many employers, may have wished that business conditions and stable healthcare costs

(hope springs eternal) would permit it to provide similar healthcare benefits to retirees

throughout retirement. But the question is whether the two parties signed a contract to

that effect. Nothing of the sort appears in the collective bargaining agreements. See Tackett,

135 S. Ct. at 937.

Second, not only do the CBAs fail to say that Moen committed to provide unalterable

healthcare benefits for life to retirees, everything they say about the topic was contained in a

three-year agreement. If we do not expect to find “elephants in mouseholes” in construing

statutes, see Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001), we should not expect to

find lifetime commitments in time-limited agreements, Tackett, 135 S. Ct. at 936. Each of the

CBAs made commitments for approximately three-year terms—well short of commitments for

life. Present in each CBA, the general durational clause supplied a concrete date of expiration

after which either party could terminate the agreement. When a specific provision of the CBA

does not include an end date, we refer to the general durational clause to determine that

provision’s termination. Litton Fin. Printing Div. v. NLRB, 501 U.S. 190, 207 (1991). Absent a

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 6

longer time limit in the context of a specific provision, the general durational clause supplies a

final phrase to every term in the CBA: “until this agreement ends.” See id.; see also Tackett,

135 S. Ct. at 936. Reading the healthcare provisions in conjunction with the general durational

clause gives meaning to the phrases “[c]ontinued,” “will be provided,” “will be covered,” and the

like. These terms guarantee benefits until the agreement expires, nothing more. See UAW v.

Skinner Engine Co., 188 F.3d 130, 141 (3d Cir. 1999); Senn v. United Dominion Indus., Inc.,

951 F.2d 806, 816 (7th Cir. 1992).

Consistent with traditional contract interpretation principles and with prior precedents of

the Supreme Court, “contractual obligations will cease, in the ordinary course, upon termination

of the bargaining agreement.” Litton, 501 U.S. at 207. Any other approach, Tackett explained,

“distort[s] the text” of CBAs by “refus[ing] to apply general durational clauses to provisions

governing retiree benefits.” 135 S. Ct. at 936. Because “the written agreement is presumed to

encompass the whole agreement of the parties,” id., and because Congress has placed special

emphasis on the “written terms” of retiree healthcare plans, id. at 933 (quotation omitted); see

29 U.S.C. § 1102(a)(1), we must enforce those terms as written. See Heimeshoff v. Hartford Life

& Accident Ins. Co., 134 S. Ct. 604, 611–12 (2013).

Third, each of the last three CBAs says that “[c]ontinued hospitalization, surgical and

medical coverage will be provided without cost to past pensioners and their dependents prior to

March 1, 1996.” E.g., R. 52-16 at 39 (emphasis added). Consistent with the three-year term of

these CBAs, the language provides “continued” healthcare benefits to “past pensioners”—

namely, former employees who retired under prior CBAs. There would be no need to “continue”

such benefits if prior CBAs had created vested rights to such benefits. And indeed no

comparable language appears in the CBA provisions dealing with pension benefits that vested

under prior agreements.

Fourth, while the authors of the CBAs opted not to say that retiree healthcare benefits

were vested for life, they explicitly vested pension benefits for qualifying retirees. The

difference in language demands a difference in meaning. “It is understood that when [certain]

benefits are no longer payable,” each CBA provides, “the normal monthly survivor pension

benefit will be paid for the rest of the survivor’s life.” E.g., R. 52-18 at 34. Because a contract

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 7

“should be read to give effect to all its provisions and to render them consistent with each other,”

Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 (1995), we must assume that the

explicit guarantee of lifetime benefits in some provisions and not others means something. See

Skinner, 188 F.3d at 144. The absence of vesting language in the CBAs becomes even starker

when we look at the pension plan itself, which defines a “Five Year Certain and Life Annuity” as

“[a] series of monthly payments for the life of the Participant” and a “Qualified Joint and

Survivor Annuity” as “[a]n annuity for the life of the Participant with a survivor annuity for the

life of his spouse.” R. 52-11 at 11, 14 (emphasis added). No such language appears in the CBA

provisions dealing with healthcare benefits.

Fifth, the agreements contain reservation-of-rights clauses that evidence an intent not to

vest and that apply to employees and retirees. “The Company,” one such clause says, “shall

have the right to amend, cancel or reinsure the policies or change the underwriters thereof, so

long as [specified] benefits are maintained for the life of this Agreement[.]” R. 52-18 at 33.

How can one simultaneously say that healthcare benefits are “vested” but may be “cancel[ed]”

by the employer? Even the caveat—that certain “benefits” must be “maintained”—applies only

“for the life of this Agreement,” a timeline that is incompatible with construing the agreement to

create vested and unalterable benefits. And although the reservation-of-rights clause comes in a

paragraph discussing employee benefits, it does not limit itself to those benefits. It instead refers

to Moen’s right to cancel the insurance “policies,” which—as other sections of the CBAs

demonstrate—covered employees and retirees. The CBAs, moreover, sometimes use the word

“employee” to refer to both employees and retirees. The article that provides for retiree health

insurance begins by stating that “[b]enefits described in this article apply to all employees,” and a

table outlining retiree co-premiums lists the contributions required by “[e]mployee” and

“[e]mployee + 1.” Id. at 33, 36 (emphasis added).

Sixth, these principles yield a similar conclusion when applied to the plant closing

agreement. “Healthcare . . . and related benefits shall continue under Article XVII [of the

CBA],” the contract says, “for all retirees and spouses as indicated under the Collective

Bargaining Agreement.” R. 52-23 at 7 (emphasis added). Although this provision does not

specify which CBA it refers to, we presume (and the parties agree) that the relevant CBA is the

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 8

final one, the 2005 agreement. The most natural reading of the plant closing contract is that it

offers the same benefits under the same conditions as the 2005 CBA. Because a right to

permanent healthcare benefits did not vest under that CBA, it did not vest under the plant closing

agreement either.

Seventh, the above analysis not only respects the language of the relevant agreements and

Tackett, but it also brings our court into alignment with other circuits around the country.

No court to our knowledge has found, or would find, a promise of lifetime unalterable healthcare

benefits based on CBA language of this sort in a time-limited agreement. See Senior v. NSTAR

Elec. & Gas Corp., 449 F.3d 206, 218–19, 224 (1st Cir. 2006); Joyce v. Curtiss-Wright Corp.,

171 F.3d 130, 134–35 (2d Cir. 1999); Skinner, 188 F.3d at 141–44; Gable v. Sweetheart Cup

Co., 35 F.3d 851, 854–56 (4th Cir. 1994); Nichols v. Alcatel USA, Inc., 532 F.3d 364, 377–78

(5th Cir. 2008) (preliminary injunction); Senn, 951 F.2d at 814–16; Anderson v. Alpha Portland

Indus., Inc., 836 F.2d 1512, 1516–20 (8th Cir. 1988); Bazzone v. Auto. Indus. Welfare Fund,

860 F.2d 1088, at *2–5 (9th Cir. 1988) (unpublished table disposition).

The plaintiffs offer several contrary arguments. They point out that the CBAs state that

“[c]ontinued” coverage “will be provided”; that future retirees “will be covered”; that co-

premiums “will be frozen”; that “[p]ension payments will be increased by the amount of current

Medicare charges”; and that the employer “will pay the monthly premium charge” for retirees’

health insurance. E.g., R. 52-13 at 81; R. 52-18 at 36 (emphasis added). If Tackett tells us

anything, however, it is that the use of the future tense without more—without words committing

to retain the benefit for life—does not guarantee lifetime benefits. 135 S. Ct. at 937. The

relevant provisions offer healthcare coverage until some point in the future, but they do not say

what that point is.

The plaintiffs invoke provisions in the CBAs that include specific durational limits,

claiming that the absence of a comparable limit in the retiree healthcare provisions shows that

the parties intended the commitment to last for life. The 2005 CBA, for example, says that

“Hospitalization, Surgical and Medical Benefits for terminated employees, including lay-off, will

continue in effect for the duration of the month for which premiums have been paid, except as

[specified in another provision].” R. 52-18 at 35. The absence of specific durational limits in the

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 9

retiree benefits provisions, argue the plaintiffs, means that these benefits were meant to last for

life. But specific and general terms usually work in tandem, and that is just the case here. The

CBAs’ general durational clauses provide a baseline or default rule, a point at which the

agreements expire absent more specific limits relevant to a particular term. In the absence of

specific language in the retiree healthcare provisions, the general durational clause controls.

Referring to some of our Yard-Man cases, the plaintiffs note that we have inferred that

retiree healthcare benefits vest when CBAs tie eligibility for retiree healthcare benefits to

eligibility for pensions. See, e.g., Noe v. PolyOne Corp., 520 F.3d 548, 558–59 (6th Cir. 2008);

McCoy v. Meridian Auto. Sys., Inc., 390 F.3d 417, 422 (6th Cir. 2004). The CBAs at issue do

just that, they add, in two ways. They first provide that “[c]ontinued hospitalization, surgical and

medical coverage will be provided without cost to past pensioners and their dependents,” e.g.,

R. 52-18 at 36 (emphasis added), rather than using a more generic term like “past employees.”

And some of the agreements provide Medicare Part B reimbursements by increasing retirees’

pension payments. But Tackett rejected this kind of “tying” analysis as a relic of a misdirected

frame of reference, calling it one of many Yard-Man inferences that was “inconsistent with

ordinary principles of contract law.” 135 S. Ct. at 937. Even the concurrence, which addressed

the tying analysis in greater detail, stated only that tying language could shed light on the parties’

intent when it connected the duration of pensions to the duration of health benefits (e.g.,

“[R]etirees ‘will receive’ health-care benefits if they are ‘receiving a monthly pension’”). Id. at

938 (Ginsburg, J., concurring) (emphasis added). That sort of durational linkage is absent here,

where the CBAs simply state that those who are eligible for pensions are also eligible for health

benefits. It is not surprising that CBAs address pension and healthcare benefits for retirees. And

it is not surprising that the CBAs make pensioner status a condition of receiving healthcare

benefits. But neither one of these features of the CBAs means that retirees will get those benefits

for as long as they earn a pension, particularly since the pension provisions use vesting language

and the healthcare provisions do not.

Moving beyond the language of the agreements, the plaintiffs claim that each CBA

incorporates background understandings that favor lifetime vesting of retiree healthcare benefits.

At the time the parties negotiated each CBA, plaintiffs note, Yard-Man governed and thus the

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 10

parties would have assumed that those inferences (and the unalterable lifetime healthcare

benefits that go with them) would have applied. The short answer is that this new inference

about prior assumptions would have been just as true in Tackett—a case from our circuit that

involved a collective bargaining agreement negotiated when Yard-Man remained good law. And

yet nothing in Tackett (or the concurrence) hints at the idea that Yard-Man would linger, vest as

it were, as a precedent that would bind future interpretations of such agreements. This theory of

background understandings also sits at a lofty level of generality, one that, if accepted, might

have to account for other ever-uncertain assumptions about the future. Would healthcare costs

rise at the same pace as general inflation or would they far exceed it? Would the National

Government enact a national healthcare law? And, if so, would that new law impose a tax on

generous, so-called Cadillac healthcare plans? Nor is it fair to assume that all parties who

entered such CBAs were certain about the fate of Yard-Man. That explains why our court

upheld substantial class-action settlements between Ford and the UAW and General Motors and

the UAW that were premised in part on uncertainty about the future of Yard-Man. UAW v. Gen.

Motors Corp., 497 F.3d 615, 631–32 (6th Cir. 2007). That uncertainty was not unwarranted. No

court of appeals in the country applied our Yard-Man inferences. And even this court refused to

apply the inferences in the context of contracts that were not the subject of collective bargaining,

see Sprague, 133 F.3d at 400—what had always been a strangely inverted regime that favored

employees who had the benefit of union representation over those without it, Rossetto v. Pabst

Brewing Co., 217 F.3d 539, 543–44 (7th Cir. 2000).

The plaintiffs also make several arguments related to the plant closing agreement. They

begin by pointing to the agreement’s promise that healthcare benefits “shall continue,” noting

that the contract includes neither a general nor a specific durational clause that might limit the

period of continuation. But this argument ignores the context of the relevant language, which

states that healthcare benefits “shall continue . . . as indicated under the [2005] Collective

Bargaining Agreement.” R. 52-23 at 7 (emphasis added). The contract thus did not need explicit

durational language because it incorporated the terms of the 2005 CBA, which did not provide

for vested benefits.

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 11

But, the plaintiffs persist, doesn’t this interpretation make the “shall continue” clause

redundant? An earlier provision of the plant closing agreement provided that “[a]ll terms and

conditions of the 2005–2008 Collective Bargaining Agreement shall remain in effect until all

bargaining unit employees cease working at the facility.” Id. at 2. If the contract already

provided that the 2005 CBA would govern until the last unionized employee left, then it would

not have been necessary to include an additional provision stating that benefits “shall continue”

for as long as the 2005 CBA permits. But the rule that courts should interpret contracts to avoid

superfluous words is a “tool[] for dealing with ambiguity, not a tool for creating ambiguity in the

first place.” TMW Enters., Inc. v. Fed. Ins. Co., 619 F.3d 574, 578 (6th Cir. 2010). Because the

phrase “as indicated under the Collective Bargaining Agreement” is unambiguous, there is no

reason to invoke an interpretive canon that would convert a clear phrase into a misty one. That is

particularly true when the plaintiffs’ interpretation does nothing to reduce the alleged

redundancy. If, as the plaintiffs claim, the CBAs already vested healthcare benefits, there was no

need to provide for the continuation of those benefits in the plant closing agreement at all.

The plaintiffs point to two cases to support their reading of the plant closing contract, but

both are inapposite. The plant closing agreements in Temme v. Bemis Co., 622 F.3d 730, 733,

736–37 (7th Cir. 2010), and Zielinski v. Pabst Brewing Co., 463 F.3d 615, 616–18 (7th Cir.

2006), did not incorporate the time limits of previous CBAs—and, to the extent they impliedly

incorporated such limits, the language of the earlier CBAs was itself consistent with vesting.

The problem here is that the final CBA does not offer vested benefits, meaning that an agreement

that incorporates it by reference does not do so either.

The plaintiffs point to extrinsic evidence, such as the fact that Moen continued paying

healthcare benefits for five years after the plant closing agreement expired, claiming that this

shows the parties’ “inten[t]” to create vested and unalterable retiree healthcare benefits.

Appellees’ Br. 57. Two responses. The first and best way to divine the intent of the parties is

from the four corners of their contract and from traditional canons of contract interpretation.

That language and these canons offer no evidence of any intent to fix these benefits permanently

into the future. Absent ambiguity from this threshold inquiry, no basis for going beyond the

contract’s four corners exists. See Witmer v. Acument Global Techs., Inc., 694 F.3d 774, 778

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 12

(6th Cir. 2012). At any rate, a company does not act inconsistently when (1) it continues paying

healthcare benefits to retirees and (2) reserves the right to alter or eliminate those benefits in the

future. That a company to its credit hopes to subsidize healthcare benefits for its retirees for as

long as possible does not mean it has promised to do so, and above all such action does not mean

that it has no right to alter those benefits in the future to account for changes to its healthcare

plans for employees or, as here, to account for new federal legislation.

One other point. Moen argues that Tackett creates a clear-statement rule—that, before a

retiree may impose a duty on a company to provide vested and unalterable healthcare benefits,

it must satisfy the rigors of clarity associated with waivers of sovereign immunity and the like.

See United States v. Nordic Vill., Inc., 503 U.S. 30, 33–34 (1992). But clear-statement rules of

this sort generally come into play after courts deploy the customary rules of interpretation.

See id. at 34–37; Gregory v. Ashcroft, 501 U.S. 452, 464–67 (1991); Dellmuth v. Muth, 491 U.S.

223, 227–32 (1989). Only at that point do courts ask whether the parties or the legislature, as the

case may be, has clearly/expressly/plainly created the duty at issue and only at that point do they

establish a default rule in favor of or against certain outcomes or policies.

Tackett does not create such a rule. It tells courts to apply “ordinary principles of

contract law”—identifying relevant principles in this setting along the way—and tells courts to

follow those principles where they lead. 135 S. Ct. at 933. That approach of course still permits

courts to draw implications and inferences from the language of the contract. Interpretation

always requires the reader to take signals from the writer in one way or another. When

contracting parties say one thing in a part of the contract and say something else in a related

section, to use one example, they imply a difference in meaning. And when readers see a benefit

created in a three-year contract, to use another, they are entitled to infer that any right to the

benefit ends after three years. In overruling Yard-Man, in short, Tackett does not create a clear-

statement rule in the other direction. It instead eliminates the use of inferences and implications

not grounded in “ordinary principles of contract law” and explains the kinds of tools properly

deployed in this setting. As applied to this set of contracts, those principles require the

conclusion that no vesting occurred.

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 13

III.

Moen also challenges the district court’s award of attorney’s fees and costs. Because we

reverse the district court’s judgment, we vacate its fee award too. See Reese v. CNH Am. LLC,

574 F.3d 315, 328 (6th Cir. 2009).

IV.

For these reasons, we reverse the district court’s grant of summary judgment, vacate the

attorney’s fee award, and remand the case for the district court to enter judgment for the

defendant.

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 14

_________________

DISSENT

_________________

STRANCH, Circuit Judge, dissenting. I agree that the Supreme Court’s decision in

M & G Polymers USA, LLC v. Tackett, 135 S. Ct. 926 (2015), governs this case and have no

quarrel with much of the majority’s articulation of its holding. I do not dispute that the Supreme

Court rejected certain “inferences” applied by our court in UAW v. Yard-Man, Inc., 716 F.2d

1476 (6th Cir. 1983), and its progeny, finding them to be “inconsistent with ordinary principles

of contract law.” Tackett, 135 S. Ct. at 937. The majority also correctly recognizes that Tackett

does not create a clear-statement rule in favor of employers: employees are not required to

“satisfy the rigors of clarity” to vest retiree healthcare benefits. (Maj. Op. at 12.) Instead, as this

court clarified on remand, the Supreme Court “declined to adopt an ‘explicit language’

requirement in favor of companies” and instead instructed that courts are to interpret collective

bargaining agreements in accordance with ordinary contract principles—without placing a thumb

on the scale for either employers or employees. Tackett v. M & G Polymers USA, LLC, No. 12-

3329, 2016 WL 240414, at *4–5 (6th Cir. Jan. 21, 2016) (published).1 It is here that my

disagreement arises. I think that the majority transgressed this admonition by placing a thumb on

the employer’s scale.

The question presented is whether Moen Incorporated’s Retirees (a designation that

includes their spouses and eligible dependents) are correct in their claim that the collective

bargaining agreements and plant closing agreement grant vested, lifetime healthcare benefits to

Retirees. The majority determines that ordinary contract principles compel the conclusion that

the agreements unambiguously do not grant lifetime healthcare benefits and then declines to

address the bulk of the extrinsic evidence presented by Retirees. I disagree with both

determinations. I conclude that the language of the agreements—when properly viewed in their

1

The Supreme Court’s remand marked the case’s third appearance before this court (Tackett III), which

previously heard appeals from the district court’s dismissal of the complaint, Tackett v. M & G Polymers USA, LLC,

561 F.3d 478 (6th Cir. 2009) (per curiam) (Tackett I), and judgment following a bench trial, Tackett v. M & G

Polymers USA, LLC, 733 F.3d 589 (6th Cir. 2013) (Tackett II). To maintain consistency with the case references,

the appropriate Roman numeral will be used to identify our cases, and the Supreme Court case will be referenced

simply as Tackett.

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 15

entirety—is ambiguous and that the extrinsic evidence resolves the ambiguity in favor of

Retirees. I therefore respectfully dissent.

I. Applying Ordinary Principles of Contract Law

In interpreting a collective bargaining agreement, as with any other contract, “the parties’

intentions control.” Tackett, 135 S. Ct. at 933 (quoting Stolt-Nielson S.A. v. AnimalFeeds Int’l

Corp., 559 U.S. 662, 682 (2010)). “Where the words of a contract in writing are clear and

unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent.”

Id. (quoting 11 R. Lord, Williston on Contracts § 30:6, p. 108 (4th ed. 2012) (Williston)). At this

stage, courts “may look to known customs or usages in a particular industry to determine the

meaning of a contract,” as long as the custom or usage is supported by affirmative evidence in

the particular case. Id. at 935 (citing 12 Williston § 34:3). Where the parties’ intentions remain

ambiguous after review of the language of the agreement, extrinsic evidence may be used to

resolve that ambiguity. Id. at 937–38 (Ginsburg, J., concurring) (citing 11 Williston § 30:7,

p. 116–124); see also Brooklyn Life Ins. Co. of N.Y. v. Dutcher, 95 U.S. 269, 273 (1877) (“There

is no surer way to find out what parties meant, than to see what they have done.”).

Because courts consider both industry customs or usages and extrinsic evidence to

determine the meaning of a contract, context matters. See Tackett, 135 S. Ct. at 935. As the

Supreme Court acknowledged in Tackett, the context here—interpretation of collective

bargaining agreements negotiated between representatives of the company and its

employees/retirees in the manufacturing industry—calls for application of “ordinary principles of

contract law, at least when those principles are not inconsistent with federal labor policy.” Id. at

933 (citing Textile Workers v. Lincoln Mills, of Ala., 353 U.S. 448, 456–57 (1957)). Federal

labor policy has long recognized the unique character of collective bargaining relationships:

“[t]he collective agreement covers the whole employment relationship. It calls into being a new

common law—the common law of a particular industry or of a particular plant,” which

“implements and furnishes the context of the agreement.” United Steelworkers of Am. v.

Warrior & Gulf Navigation Co., 363 U.S. 574, 579–80 (1960). Accordingly, context is

particularly important here.

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 16

Recognizing the importance of context, Retirees urge this court to consider the

background understandings of the parties. Tackett III acknowledged that the Supreme Court “did

not purport to discuss all of the ordinary principles of contract law” and identified other ordinary

contract principles showing that courts may consider background understandings. See Tackett

III, 2016 WL 240414, at *4 (identifying additional “ordinary principles of contract law” from

Justice Ginsburg’s concurrence (including that courts may consider the parties’ “bargaining

history”) and from the parties’ arguments referencing 11 Williston § 30:19 (stating that courts

may consider “that contracts incorporate existing law”)). Discounting this context, however, the

majority concludes that the legal distinction between benefit packages that are the subject of

collective bargaining and those that are not is a “strangely inverted regime” that favors

employees who have “the benefit of union representation.” (Maj. Op. at 10 (citing Rossetto v.

Pabst Brewing Co., 217 F.3d 539, 543–44 (7th Cir. 2000)).)2 In other words, the majority

suggests that collective bargaining agreements should be interpreted without consideration of the

background understandings that are unique to collective bargaining. Of course all employees

share a legitimate concern about their benefit packages, but, as recognized by federal labor

policy, a collective bargaining system entails practical distinctions from other contracting

situations.

The majority’s refusal to acknowledge distinctions regarding the nature of collective

bargaining causes it to mischaracterize Retirees’ argument that courts should consider the

background understandings of the parties as nothing more than a request to adopt a “new

inference about prior assumptions.” (Maj. Op. at 9–10.) Based on its mischaracterization, the

majority then attacks Retirees’ argument by positing a list of “ever-uncertain assumptions about

the future” for which courts should not account. (Id. at 10) That discussion is simply inapposite

(though it should be acknowledged that uncertainties don’t just strike those fearing the cost to

2

Pabst presents the same issue as this case but is inapplicable because it arises under the Seventh Circuit’s

presumption that, under a collective bargaining agreement that is silent on the issue, entitlement to healthcare

benefits expires with that agreement unless a canvass of its language reveals a patent ambiguity or there is objective

evidence showing a latent ambiguity. 217 F.3d at 545, 547. That court’s consideration of latent ambiguity,

however, has some relevance to our case, as the opinion recognizes that even if contract language seems clear, an

examination for latent ambiguity is based on the “real-world context of application,” id. at 543, viewed under federal

common law, id. at 541, which is developed pursuant to federal labor law and policy.

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 17

provide healthcare coverage—there are plenty of uncertainties for Retirees fearing the loss of

their family’s healthcare coverage).

Retirees’ argument is not about whether today we can posit uncertainties—it merely

proposes a proper examination of “the entire agreement in light of relevant industry-specific

‘customs, practices, usages, and terminology’” and other ordinary principles of contract law.

Tackett, 135 S. Ct. at 937–38 (Ginsburg, J., concurring). The argument requests an examination

directed to the context when the parties entered the CBA. For example, one context wholly

missed by the majority is the reality that collective bargaining negotiations for employee

contractual pay and benefit packages routinely entail a primarily fixed amount of money to be

divided between pay and benefits. In collective bargaining, negotiating additional contributions

into benefits means less pay in an employee’s pocket, which is a dynamic different from non-

represented industries. Thus, in applying ordinary contract principles, it is appropriate to

recognize the industrial reality of the give and take of a negotiated union contract when gathering

the intention of the parties from the whole instrument.

A. Language of the Agreements

The majority serially examines and rejects each contract argument of Retirees as

insufficient to show either a contractual commitment to provide lifetime healthcare benefits or an

ambiguity in the contract documents that would allow for examination of extrinsic evidence.

But this divide and conquer analysis transgresses the “cardinal principle” of contract

interpretation: the intention of the parties to a contract is “to be gathered from the whole

instrument.” Id. (quoting 11 Williston § 30:2, p. 27). Characteristics and particulars of the

whole instrument—the collective bargaining agreements and the plant closing agreement—must

be considered together. I turn now to examination of these agreements.

Retirees argue that the use of future tense language throughout the collective bargaining

agreements evidences intent to vest retiree healthcare. The majority opines that, “[i]f Tackett

tells us anything,” it is that the future tense language used by the parties, without more, “does not

guarantee lifetime benefits.” (Maj. Op. at 8 (citing Tackett, 135 S. Ct. at 937).) But Tackett did

not address what may be implied from the use of future tense and expressly chose not to answer

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 18

the vesting question but to remand it for this court to do so, absent the Yard-Man inferences. See

Tackett III, 2016 WL 240414, at *1. In Litton Financial Printing Division, a Division of Litton

Business Systems, Inc. v. NLRB, moreover, the Supreme Court explained that duties in a contract

may arise from its “express or implied terms.” 501 U.S. 190, 203, 207 (1991). Consistent with

the “cardinal principle” of contract interpretation, we must look to both express and implied

terms in all the agreements to determine the intention of the parties. See Tackett III, 2016 WL

240414, at *4 (citing Litton, 501 U.S. at 207).

The majority dismisses out of hand the standalone argument based on future tense

language and instead specifies an additional requirement to point to “words committing to retain

the benefit for life”—an addition at odds with Litton. (Maj. Op. at 8.) The future tense language

used in the agreements, however, could imply intent that retiree healthcare be vested—especially

if other aspects of the “whole instrument” point in that direction. Both are true here. The 2005

collective bargaining agreement, for example, provides that “[c]ontinued hospitalization, surgical

and medical coverage will be provided without cost to past pensioners and their dependents”;

“future retirees will be covered under the new medical plan”; “[t]he co-premium amount for the

retiree will be frozen at the co-premium in effect at the time of retirement”; and “[t]he Company

will pay the monthly premium charge . . . for all retirees and future retirees . . . and their eligible

dependents under the terms of the policy.” It is appropriate to consider the presence of this

future tense language in the agreements, along with their other characteristics and particulars, to

ascertain the intention of the parties. The majority’s blanket conclusion otherwise amounts to a

clear statement rule in favor of employers, a position that it correctly disavowed as contrary to

Tackett. (Maj. Op. at 12.) See Tackett III, 2016 WL 240414, at *4.

Turning to other evidence of intent to vest that can be gleaned from the “whole

instrument,” Retirees cite the link in the agreements between retiree healthcare benefits and

pensioner status. The 2005 collective bargaining agreement states that health benefits “will be

provided without cost to past pensioners and their dependents” and includes Medicare Part B

reimbursements in “pension payments.” The majority presumes this language to refer to

eligibility and then concludes that “Tackett rejected this kind of ‘tying’ analysis.” (Maj. Op. at

9.) The Supreme Court did reject as an improper inference the conclusion that “the tying of

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 19

eligibility for health care benefits to receipt of pension benefits suggested an intent to vest health

care benefits.” Tackett, 135 S. Ct. at 937. But the contract language before us does not refer to

eligibility. Justice Ginsburg’s concurrence illustrates a proper examination of contractual

language that specifies the relationship between healthcare and pension benefits: “[b]ecause the

retirees have a vested, lifetime right to a monthly pension . . . a provision stating that retirees

‘will receive’ health-care benefits if they are ‘receiving a monthly pension’ is relevant to the

examination.” See id. at 938 (Ginsburg, J., concurring). The majority posits the necessity for

magic language (“for as long as”) (Maj. Op. at 9), but the agreement at issue in Tackett did not

contain that language, the majority did not require that language, and Justice Ginsburg’s example

did not include that language. Tracking Justice Ginsburg’s example, the contract language here

specifies that Retirees have a vested, lifetime right to a monthly pension and “will receive”

healthcare benefits if they are “pensioners.” This is durational tying language that is relevant to

our examination of the “whole instrument.”

Retirees also argue that intent to vest is suggested by the agreements’ inclusion of explicit

durational limitations for other benefits but not retiree healthcare. For example, the

2005 collective bargaining agreement limits the time in which terminated and laid-off employees

may receive healthcare, and the plant closing agreement gives healthcare benefits to employees

for certain time periods based on the employee’s length of service. The majority dismisses this

argument based on the collective bargaining agreements’ inclusion of general durational clauses.

Noting that “we should not expect to find lifetime commitments in time-limited agreements,” the

majority presumes that when a specific provision of a collective bargaining agreement does not

include an explicit end date that provision must be governed by the general durational clause of

the agreement. (Maj. Op. at 5–6 (citing Tackett, 135 S. Ct. at 936).)

As acknowledged by Tackett III, the majority’s formulation is neither authorized nor

compelled by Tackett and improperly places a thumb on the employers’ scale. See Tackett III,

2016 WL 240414, at *4. The Supreme Court did criticize Yard-Man and its progeny for creating

presumptions of vesting “not from record evidence, but instead from its own suppositions about

the intentions,” including the presumptions that “a general durational clause says nothing about

the vesting of retiree benefits” and that a contract must “include a specific durational clause for

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 20

retiree health care benefits to prevent vesting.” Tackett, 135 S. Ct. at 935–36 (quoting Noe v.

PolyOne Corp., 520 F.3d 548, 555 (6th Cir. 2008)). But those criticisms do not authorize the

majority’s opposite inferences—that a general durational clause says everything about vesting

and that vesting occurs only if the contract includes a “longer time limit” in the “specific

provision.” (Maj. Op. at 5–6.) See Tackett III, 2016 WL 240414, at *4 (“[W]e also cannot

presume that the absence of such specific language, by itself, evidences an intent not to vest

benefits or that a general durational clause says everything about the intent to vest.”). Having

noted that “contractual obligations will cease, in the ordinary course, upon termination of the

bargaining agreement,” the Supreme Court explained that this “principle does not preclude the

conclusion that the parties intended to vest lifetime benefits for retirees.” Tackett, 135 S. Ct. at

937 (citing Litton, 501 U.S. at 207). Litton teaches that “[e]xceptions [to this ordinary course]

are determined by contract interpretation. Rights which accrued or vested under the agreement

will, as a general rule, survive termination of the agreement,” Litton, 501 U.S. at 207, and

“constraints upon the employer” may arise “from the express or implied terms of the expired

agreement,” id. at 203. Thus, we must “consider all relevant contractual language in light of

industry practices,” seeking the express or implied intention of the parties. Tackett, 135 S. Ct. at

938 (Ginsburg, J., concurring).

Relevant contract language also includes the 2008 plant closing agreement, which states

that the 2005 collective bargaining agreement shall cease to exist, “except for items as agreed to

in this agreement,” when “all bargaining unit employees cease working at the facility.” Retiree

healthcare is identified as an item that will not cease to exist upon plant closure: “Healthcare,

Sub and Pension and related benefits shall continue . . . for all retirees and spouses as indicated

under the [2005 agreement].” Retirees argue that the only way to make this benefits continuation

clause not redundant or superfluous is to interpret it as recognizing the intent to vest retiree

healthcare benefits in the collective bargaining agreements and authorizing provision after the

plant’s closing. See TMW Enters., Inc. v. Fed. Ins. Co., 619 F.3d 574, 578 (6th Cir. 2010)

(holding that courts, to deal with ambiguity, should interpret contracts to avoid superfluous

words).

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 21

The majority rejects Retirees’ argument by concluding that the plant closing agreement

simply incorporates the terms of the 2005 collective bargaining agreement and, because that

agreement did not provide for vested benefits, “an agreement that incorporates it by reference

does not do so either.” (Maj. Op. at 11.) The majority then denies applicability of the rule

against superfluous words on the basis that the rule is a “tool[] for dealing with ambiguity, not a

tool for creating ambiguity in the first place,” and that the plant closing agreement’s clause

incorporating the 2005 agreement is unambiguous. (Id. (quoting TMW Enters., Inc., 619 F.3d at

578).)

Again, contract principles dictate that we seek the intention of the parties from the whole

of the contract language—here, both the collective bargaining agreements and the plant closing

agreement. Interpreting the collective bargaining agreements as not vesting retiree healthcare

benefits renders the plant closing agreement’s “shall continue” clause superfluous. If retiree

healthcare was not vested by the 2005 collective bargaining agreement, then the benefits would

have terminated pursuant to the plant closing agreement’s general provision that the 2005

agreement will cease to exist upon plant closing. There would have been no reason for the

parties to reiterate, in the same document, that the benefits “shall continue” for as long as the

2005 agreement permits. It did not do so for any other non-vested provisions. Interpreting the

2005 agreement as vesting retiree healthcare, on the other hand, would give the plant closing

agreement’s “shall continue” clause meaning. Specifically, the clause would confirm that retiree

healthcare benefits, as vested by the 2005 agreement, are not subject to the plant closing

agreements’ general provision that the 2005 agreement will cease to exist upon plant closing.

The rule against superfluous words thus resolves ambiguity that could have arisen in the

language of the two contracts.

As a final point, the majority construes the collective bargaining agreements’ reservation-

of-rights clauses as evidencing an intent not to vest. (Maj. Op. at 7.) The answer to that is

simple: that provision does not unambiguously apply to Retirees. In each of the collective

bargaining agreements, the reservation-of-rights clause is contained in a separate paragraph

furnishing insurance for Moen’s “employees,” not their “retirees,” while different contract

paragraphs govern retiree health insurance. The term “employee” has meaning: “[t]he ordinary

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 22

meaning of ‘employee’ does not include retired workers; retired employees have ceased to work

for another for hire.” Allied Chem. & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh

Plate Glass Co., Chem. Div., 404 U.S. 157, 168 (1971). But even if the reservation of rights

clause did apply to Retirees, the other provisions evidencing intent to vest renders the

agreements as a whole ambiguous.

Applying ordinary contract principles and the Supreme Court’s instructions in Tackett to

all of the relevant contract language viewed in light of industry practices reveals ambiguity

within the various contract provisions. Because the parties’ intentions cannot be derived

unambiguously from the language of the agreements, I turn to the extrinsic evidence to see

whether the ambiguity may be resolved.

B. Extrinsic Evidence

The record contains objective evidence of the parties intent to vest retiree healthcare

benefits. That evidence includes statements from Moen representatives to Retirees—made in

negotiating sessions, before the pension committee, and in one-on-one conversations—that their

benefits were “for life” or “forever” and advising surviving spouses that they were “entitled” to

continue medical benefits upon the death of a Retiree. Moen’s Retirement Health Enrollment

Forms contain no indication to Retirees that their health benefits could be cancelled or the

premiums paid increased. Surviving spouses of Retirees were assured in writing that “as long

as” the spouse continues to receive a pension, they “would continue to be covered under the

group insurance program,” expressly linking the duration of retiree healthcare to pensioner

status. In accordance with this understanding, the parties operated for decades as if the retiree

benefits were vested—Moen continued to provide benefits until 2014, years after the plant had

closed. See UAW v. Skinner Engine Co., 188 F.3d 130, 144 (3d Cir. 1999) (holding that courts

may infer from employer continuing to provide retiree benefits after termination of a collective

bargaining agreement that retiree benefits were vested by that agreement); Weimer v. Kurz-

Kasch, Inc., 773 F.2d 669, 676 n.6 (6th Cir. 1985) (same); Bower v. Bunker Hill, 725 F.2d 1221,

1225 (9th Cir. 1984) (same). Moen never reduced retiree benefits, and each Retiree’s benefits

mirrored the benefits provided at the time he or she retired.

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 23

In addition, the record reveals that many employees, following the plant closing

agreement but before plant closure, chose to take a significantly reduced pension and retire early

under an active 2005 collective bargaining agreement in order to qualify for retiree healthcare

benefits. By choosing to retire early, these employees accepted an actuarial reduction in their

pension of “a percentage equal to 1/2 of 1%” for each month prior to their 62nd birthday.

One employee, for example, qualified for and took early retirement at age 58 and testified to

suffering a 23% reduction in his lifetime monthly pension benefit. The choice to take a

significantly reduced pension across their lifetime makes no sense unless these employees were

told and believed that, by retiring during the term of the 2005 collective bargaining agreement,

they would receive vested retiree healthcare.

The majority responds that the language of the agreements is unambiguous and thus

extrinsic evidence must be ignored. It then indirectly addresses the parties’ actions regarding

retiree healthcare by doing just what Tackett warned against—assessing intent based on its own

suppositions that have no support in the record (and are in fact contradicted by it). See Tackett,

135 S. Ct. at 935 (chastising this court for “deriv[ing] its assessment of likely behavior not from

record evidence, but instead from its own suppositions”). For example, the majority opines that

“Moen, like many employers, may have wished that business conditions and stable healthcare

costs (hope springs eternal) would permit it to provide similar healthcare benefits to retirees

throughout retirement.” (Maj. Op. at 5.) In that same vein, the majority assigns favorable

motivation to Moen, opining that a company cannot be blamed for hoping “to its credit . . . to

subsidize healthcare benefits for its retirees for as long as possible.” (Maj. Op. at 12.)

The majority points to no record evidence supporting these assessments of the parties’

intentions. Such conclusions of benevolence are belied by the statements and admissions

regarding Moen’s contractual responsibilities. The majority’s assessments, therefore, are

speculative and far removed from the context of these particular agreements and the practices of

this industry, and thus cannot be used to explain away the extrinsic evidence that reveals an

intent to vest retiree healthcare benefits.

Nos. 14-3633/3918 Gallo, et al. v. Moen Inc. Page 24

II. Conclusion

The majority examines the contractual agreements piece-by-piece while broadening and

misapplying the Supreme Court’s decision in Tackett to find that the parties’ unambiguously

intended not to vest retiree healthcare. Reviewing the whole of the contractual agreements and

the specific contract language evidencing the intentions of the parties leads me to conclude that

the CBA and the plant closing agreements are ambiguous on the issue of vested retiree

healthcare benefits. The background understandings of the parties; realities of the relationship

between the parties; customs, practices, and usages in the industry; context of negotiations; and

law and policy also lead to that conclusion. The extrinsic evidence, including the statements and

actions of the parties, resolves that ambiguity in favor of Retirees. Thus, under the standard set

out in Tackett, the district court’s grant of summary judgment to Retirees should be affirmed.