Opposition Brief — El Paso Tennessee Pipeline Co. Co. v. Yolton (No. 06-201)

No. 06-201 OFFIC ERK

cree meiner te nn ncaa perme tt U.S.

IN THE

Supreme Court of the Anited States

EL PASO TENNESSEE PIPELINE CO..,

Petitioner,

V.

GLADYS YOLTON, WILBUR MONTGOMERY, ELSIE TEAS,

ROBERT BETKER, EDWARD MAYNARD, GARY HALSTED

AND CNH AMERICA LLC,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

ROGER J. MCCLOW *

KLIMIST, MCKNIGHT, SALE,

McCCLOwW & CANZANO, P.C.

- 400 Galleria Officentre, Suite 117

Southfield, MI 48034

(248) 354-9650

Counsel for Respondents Yolton,

Montgomery, Teas, Betker,

* Counsel of Record Maynard and Halsted

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

© Se

QUESTIONS PRESENTED

I. Whether this Court should decline to review the inter-

locutory decision of the Sixth Circuit which involves the

application of traditional principles of contract interpretation

in a Section 301 breach of contract action.

II. Whether this Court should decline to review the inter-

locutory decision when there is no disagreement among the

Circuits as to the basic principles of contract interpretation

applicable to a Section 301 breach of contract action for

retiree health care benefits.

(i)

11

PARTIES TO THE BRIEF

This Brief in Opposition is filed by Respondents Gladys

Yolton, Wilbur Montgomery, Elsie Teas, Robert Betker,

Edward Maynard, Gary Halsted. In this Brief, these Re-

spondents are referred to as the Plaintiffs.

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .....000.:c-cccscorssescessseeeseeseseeees i

Pe A RE I pnctvnctitsntincenibitestibimsibinciniveaita ii

TAREE, GE FAA Fe BE nae vcccecesresescserevssssvessnvisanenenens Vv

STATEMENT OF THE CASE .........cccccoccoosssscsecsessesees l

A. The Collective Bargaining Agreements ............ I

a -: a s sicciinccisitinaisticinibichinkeicccnities 4

Gi: FU ei icicccctevdidcareemaghiebtnaniibotenbdeviccesiabestnn 4

D. The District Court’s Preliminary Injunction...... 5

E. The Sixth Circuit’s Decision on Interlocutory

PA siicsinitiiatatiiiaahcssicenbaiiicciahinbieceliesigiianaadesuaius 6

REASONS FOR DENYING THE WRIT..................0+. 6

A. This Petition Involves an Interlocutory Appeal .. 6

B. There is No Split Among the Circuits................ 7

1. El Paso’s Reading of Ten Outcome Deter-

minative “Rules” Demonstrates Only That

the Results Below are Dictated by the

Unique Facts of Each Case............scsecseseees 8

a. The Circuits Agree on the Appropriate

Application of the Extrinsic Evidence

aire scsiscnsticisicerianldbebieatibiemsdabberbadstbensiaciasteaCbhiais 9

b. The Circuits Agree That No Automatic

Presumptions Apply .............:sscessesseeeees 11

c. The Effect of Swesific Words or

FN iiicicctrnsiaiihets oipatntieniibineninss 13

i. El Paso’s “Will Continue” Argument... 14

(iii)

iv

TABLE OF CONTENTS-—Continued

Page

li. El Paso’s Pension Linkage Argument.. 16

iii. E] Paso’s Durational Clause Argu-

OIE, i sicsscesivinisacisnrcinninr Ramco 18

2. Retiree Claims are Frequently Rejected

Within the Sixth Circuit and Frequently

'Provail in Otter Circuits .......2...cccesssssessscseses 18

C. The Sixth Circuit’s Preliminary Decision

Raises No Issues of Importance and Does Not

Conflict With Any Federal Policy ................00 20

CONCLUSION

Vv

TABLE OF AUTHORITIES

CASES Page

Abbruscato v. Empire Blue Cross & Blue Shield,

OE re FE Cals BUS) srctennsctiiernnisicncinctnine 19

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

és EEE docipiclabinicscccinsnediinscencndnisescnaessaidiotindbadanmeieediabs 20

American Construction Co. v. Jacksonville T. &

Be Cig HG UB. S72 CRG rreccccesstcecienitecsinens 6

Anderson vy. Alpha Portland Industries, Inc., 836

F.2d 1512 (8th Cir. 1988), cert. denied sub

nom Anderson v. Slattery Group Inc., 489 U.S.

ee dicciccasenecisainditiconetataeercepeienabiauuiiiiintesin 9, 10, 18

Barnett v. Ameren Corp., 436 F.3d 830 (7th Cir.

ee iiicses issiinestadeaivitaeshaitccdiciininiipibineiiicdihiuibaceilbaden 10

Bazzone v. Automotive Industries Welfare Fund,

860 F.2d 1088, 1988 WL 58340 (9th Cir.

Saat snvicitpssiecilesip thanicdiecanditoniibaiadeaayatianiiniaahabipiioaaadas 11

Bidlack v. Wheelabrator Corp., 993 F.2d 603 (7th

Cir.), cert. denied, 510 U.S. 909 (1993)......9, 10, 15, 20

Bittinger v. Tecumseh Products. Co., 83 F.

Supp.2d 851 (E.D. Mich. 1998), aff'd 201 F.3d

400 (6th Cir. 1999) (unpublished opinion)........ 19

Bower v. Bunker Hill Co., 725 F.2d 1221 (9th

aah: SU siniasiadabasacpcssihisamiephteicsibeunistinatadbietieh dialiaashebes 9

Cherry v. Auburn Gear, Inc., 441 F.3d 476 (7th

Ries SI liciicucanconsahideireciidmeesonseceabaouicnadanicecacuie 10, 20

Chiles v. Ceridian Corp., 95 F.3d 1505 (10th Cir.

PPI icscichcietaceciiacnilobcthieisatatinesetin lenis hchaltestiieialilaaieal 19

Diehl v. Twin Disc, Inc., 102 F.3d 301 (7th Cir.

SUPT dissieissigimuninnieitr baat 10, 19, 20

Firestone Tire & Rubber Co. v. Bruch, 489 U.S.

i See E TEE TARAS RAN COS SI MS 9,17

Golden v. Kelsey-Hayes Co., 73 F.3d 648 (6th

Cir.), cert. denied, 519 U.S. 807 (1996)........ 13, 16, 17

V1

TABLE OF AUTHORITIES—Continued

Page

Golden v. Kelsey-Hayes Co., 954 F.Supp. 1173

GRR es SI BI Paanivenininiiersitiebedetistiicitbaenibanilneiak 17

Hamilton-Brown Shoe Co. v. Wolf Brothers &

Cg Be Chee PB CNP OO iencicttittniinsinitmagbavninsands 7

Joyce v. Curtiss-Wright Corp., 992 F. Supp. 259

(W.D.N.Y. 1997), aff'd 171 F.3d 130 (2d Cir.

FD cinitsieiiiiesiptinisicttpinianisdeteniiasicanhteaiachiensanianitatiias 16, 17

Keffer v. H.K. Porter Co., Inc., 872 F.2d 60 (4th

rk ee iieilininlaiiaithicnlantnidadchdinleseitigshichriiiesbledasietiaces 7, 10

LaForest v. Former Clean Air Holding Co., 376

FF ee Oe Ce Ns A nictisccesiichadinsiniinnesdatnntinnnsina 7

Litton Financial Printing v. N.L.R.B., 501 U.S.

BE Ce iciihainicchiaisinertnicaiaidiainadacbitadisiahiataslaaidaian 20

Local 150-A, Food & Commercial Workers v.

Dubuque Packing Co., 756 F.2d 66 (8th Cir.

Pi islicintndedicaikiuntinaneilsiibameimbtdsaas decunidoaassieaies 9

Machinists v. Masonite Corp., 122 F.3d 228 (Sth

is a Raabiicieitesciieeicsibiiuniidiidisisbscentandeaiiie gc 9,10, 11

Maurer v. Joy Technologies, Inc., 212 F.3d 907

CR i See cv icsissspiceiihscietntecenabenondivinensiieesioiora 11, 12,19

McCoy v. Meridian Automotive Systems, Inc.,

390 F.3d 417 (6th Cir. 2004)... 9, 12, 16, 17

Murphy v. Keystone Steel & Wire Co., 61 F.3d

Se CFs EE sisinnnstenesicininisbdpeniainesatonnias 19

Pabst Brewing Co. v. Corrao, 161 F.3d 434 (7th

Es Pe ciniidnantitnttccnieniististdumsiosiadinbiandbheginokenien 19

Paperworkers v. Champion International Corp.,

FOB F.26 UBS2 CGR Cie. TSO) a rvcsccccccrccceincssevese 10

Rossetto v. Pabst Brewing Co., 217 F.3d 539 (7th

Cir. 2000), cert denied, 531 U.S. 1192 (2001).... 10, 11, 19

Senior v. NSTAR Electric & Gas Corp., 449 F.

BG FO TIRE GA, BON cihicesitinsininintacalilsitintrcinioniines 11, 13

ei

Vil

TABLE OF AUTHORITIES—Continued

Page

Senn v. United Dominion Industries, Inc., 951

F.2d 806 (7th Cir. 1992), cert. denied, 509

CF FS GEG ccchtiiceivnsiaicesesinicticinitn ee ae a 14, 15, 19

Steelworkers v. Connors Steel Co., 855 F.2d

1499 (11th Cir. 1988), cert. denied sub nom

H.K. Porter Co. Inc., v. Steelworker, 489 U.S.

RU Ce hiccviincnctcisvvininciuieithbutibagaienuciccuineiienian 7, 10

Steelworkers v. Textron, Inc., 836 F.2d 6 (Ast Cir.

NOD siiscinivicsvsscidescicte lirica cael tiadcasuictaaniail 7

Stewart v. KHD Deutz of America, Corp., 980

F.2d 698 (11th Cir. 1993).........ccccccesees 9, 10, 14, 16, 19

Teamsters Welfare Fund v. Rolls-Royce Motor

Cars, Inc., 989 F.2d 132 (3d Cir. 1993)............ 10

UAW v. Cadillac Malleable Iron Co., 728 F.2d

BF CU ae, FTE pniiracncticicetitamidstasicemmbaaiase 13

UAW v. Cleveland Gear Corp., 1983 WL 2174

in _ (N.D. Ohio 1983), aff'd 1984 U.S. App. és

LEXIS 13700 (6th Cir. 1984) (unpublished

CUIINA, ccksrcincsteniincisiaciespesttibguusdsvcahabianaiananheds 19

UAW v. BVR Liquidating, Inc., 190 F.3d 768 (6th

Cir. 1999), cert. denied, 529 U.S. 1067 (2000)... 12, 14

UAW v. Roblin Industries, Inc., 561 F. Supp. 288

CWB DIGI, TUS D sccresacierlsicubsctenerrbicabanliacadanacl 19

UAW v. Skinner Engine Co., 188 F.3d 130 (3d

CR, Re Picci coliocansicsiaichelbniiepipisiondeidiotareiibbintnteaneians 9, 10, 14

UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir.

1983), cert. denied, 465 U.S. 1007 (1984)........ 12, 13

Vallone v. CNA Financial Corp., 375 F.3d 623

(7th Cir.), cert. denied, 543 U.S. 1021 (2004)... 16, 17

Virginia Military Institute v. United States, 508

So PE NUP ID voedinesvatissteesesennsitbneiadudetanaiubaaiis 7

Zielinski v. Pabst Brewing Co., F.3d .

2006 WL 2567468 (7th Cir. 2006) .............:c000- 19

Viil

TABLE OF AUTHORITIES—Continued

OTHER AUTHORITIES Page

Ossi, It Doesn't Add Up: The Broken Promises of

Lifetime Health Benefits, Medicare and Act

counting Rule FAS 106 Do Not Equal Satis-

factory Medical Coverage for Retirees, 13 J.

of Contemp. Health L. & Policy 233 (1996)..... 3

ree

IN THE

Supreme Court of the United States

No. 06-201

EL PASO TENNESSEE PIPELINE CoO.,

Petitioner,

Vv.

GLADYS YOLTON, WILBUR MONTGOMERY, ELSIE TEAS,

ROBERT BETKER, EDWARD MAYNARD, GARY HALSTED

AND CNH America LLC,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

es

STATEMENT OF THE CASE

A. The Collective Bargaining Agreements

Beginning in 1970, Tenneco Corporation (now El Paso)

was the parent and sole shareholder of Case Corporation

(now CNH America LLC), a manufacturer of farm and con-

struction equipment.’ Pet. 2a.

' Case was known as J.I. Case Company prior to 1990 when it changed

its name to Case Corporation. Pet. App. 40a. In 2004, Case changed its

name to CNH America LLC.

2

Case and the UAW were parties to a series of collective

bargaining agreements (CBAs) which included Group Insur-

ance Plans (GIPs) addressing benefits for various categories

of employees as well as retirees and their surviving spouses.

Pet. App. 3a.

In 1971, Case agreed to pay the entire cost of health care

benefits for retirees and surviving spouses over age 65 begin-

ning January 1, 1972. Pet. App. 42a. The GIPs contained a

section entitled: “Provisions Applicable to Employees Retired

on Company Pension and Surviving Spouses Receiving Com-

pany Pension.” That section provided that Case “shall pay the

full premium cost of [health care] coverages” for “Employees

who retire under the J I Case Pension Plan for Hourly Paid

Ernployees, or their surviving spouses eligible to receive a

Spouse’s pension under the provisions of that Plan... .” Pet.

App. 4la-42a. ~

In a December 30, 1971 letter, Case’s Benefits Manager

explained these benefits to retirees: “Retirees and Surviving

Spouses, age 65 or older, are not required to pay a premium,

either for themselves or any dependent. Instead, the coverage

shall be fully paid by the Company.” In response to the

question: “Will my spouse be able to keep this coverage if I

pass away?” he answered: “/f you have elected the Spouse’s

Optional Form of Pension and your spouse will receive a

pension as a result, your spouse will be able to keep this cov-

erage for the remainder of her lifetime. . . .” (emphasis

added). Pet. App. 58a.

In the 1974 negotiations, Case extended fully paid cover-

age to retirees and surviving spouses regardless of age. The

language of the GIPs relating to retiree health care benefits

remained substantially unchanged from 1974 to 1990. Pet.

App. 42a.

In 1987, Case and the UAW negotiated a Plant Shutdown

Agreement for the Rock Island, Bettendorf and Terre Haute

3

plants. The Shutdown Agreement provided enhanced retire-

ment options which included retiree health care benefits. The

Shutdown Agreement described “hospitalization/medical in-

surance” (as well as retiree life insurance and pensions) as

“vested residual rights.” Pet. App. 43a.

The CBA, at Article XVI, Section 4 contained the follow-

ing two provisions:

4A. The insurance plan agreed to between the parties

will run concurrently with this Agreement and is hereby

made part of this Agreement.

4C. The pension plan agreed to between the parties will

run concurrently with this Agreement and is hereby

made part of this Agreement. Pet. App. 3a.

Case’s benefit representatives at the various plants consis-

tently informed retirees verbally and in writing that they

would have unchanged, fully paid health care benefits for

their lifetimes and that their surviving spouses would also

have lifetime health care benefits. Pet. App. 57a-60a.

On November 5, 1993, Case Corporation and the UAW

initialed an Extension Agreement to extend the 1990 CBA

through February 5, 1995. Section 9 of the Extension Agree-

ment, entitled “FAS 106 Out-Year Cost Limiters,”” refers to a

“Letter of Agreement” that the cost to the company of pro-

viding benefits to retirees after April 1, 1998 would not

exceed a specified dollar amount. Pet. App. 44a-45a.

? FAS 106 is an accounting standard promulgated by the Financial

Accounting Standards Board requiring companies to report post-retire-

ment health care obligations. on their financial statements on an accrual

basis. Companies used various methods to reduce the FAS 106 figure.

See Ossi, It Doesn't Add Up: The Broken Promises of Lifetime Health

Benefits, Medicare and Account-ing Rule FAS 106 Do Not Equal

Satisfactory Medical Coverage for Retirees, 13 J. of Contemp. Health L.

& Policy 233 (1996).

B. The Reorganization

In 1994, Case Corporation was a still wholly owned sub-

sidiary of Tenneco Corporation. Pet. App. 40a. In early 1994,

Tenneco’s Board of Director’s decided to “reorganize” to fa-

cilitate a public offering of its “equity interests in Tenneco’s

farm and construction equipment business . . .” (defined as

the “Case Business”). CNH Pet. App. 82a.’ The Reorganiza-

tion Agreement was between Tenneco, Case Corporation and

a new corporation (Case Equipment Corporation) that Ten-

neco incorporated for that purpose. Pet. App. 2a-3a, 45a-47a.

Tenneco assigned all of the Case Business to Case Equipment

except for Tenneco’s ownership of Case stock, certain de-

mand notes and subordinated debt and certain Retained

Assets and the Retained Liabilities. Pet. App. 2a-3a. In the

Employee Benefit and Compensation Allocation Agreement,

(“Allocation Agreement”), Tenneco assumed Case’s post-

retirement health and life insurance obligations (the “Re-

tained Liabilities”) for pre-reorganization retirees. Case

Equipment “assumed” the existing CBAs including the 1990

CBA under which many Plaintiffs retired. Pet. App. 5a-6a,

CNH Pet. App. 84a.

At 12:01 a.m. on July 1, 1994, Case Corporation changed

its name to Tenneco Equipment Corporation. One minute

later, Case Equipment Corporation changed its name to Case

Corporation. CNH Pet. App. 83a. Thereafter, Tenneco began

paying the full cost of the plaintiff's health care benefits. Pet.

App. 6a.

C. The Dispute

In 1996, Tenneco merged with El Paso. Pet App. 47a. In

October 1997, El Paso notified retirees that they had to pay

El Paso did not include the district court’s post- December 31, 2003

orders in its Appendix. As to these orders, Plaintiffs will cite to CNH’s

Petition Appendix as CNH Pet. App. _.

5

$56 a month for their health care coverage beginning April 1,

1998. Pet. App. 7a. In November 1997, Case Corporation

notified retirees and surviving spouses that it would pay this

contribution through the end of 1998. Pet. App. 49a. During

the 1998 negotiations with the UAW, Case Corporation

agreed to fund a VEBA trust to pay health care contributions

for pre-reorganization retirees. Pet. App. 49a. In August

2002, when VEBA funds were exhausted, El Paso informed

retirees that they would have to pay $290 per month for their

health care benefits. Pet. App. 49a. In October 2002, Plain-

tiffs sued Case and El Paso. Pet. App. 49a.

~In September 2002, Case Corporation changed its name to

Case, LLC. Pet. App. 40a. In January 2004, Case, LLC

changed its name to CNH America LLC. CNH Pet. App. 91a.

D. The District Court’s Preliminary In junction

On December 31, 2003, the district court granted Plaintiffs’

motion for preliminary injunction. It concluded that, based

on the express language of the GIP, retirees were entitled to

lifetime health care benefits. Pet. App. 53a-57a. The court

then found that “[e]ven if the parties’ intent were not clear

based on the express language of the various labor agree-

ments,” there was substantial extrinsic evidence confirming

Case’s intent to provide fully paid lifetime health care bene-

fits. Pet. App. 57a-60a. The court further concluded that El

Paso, as Tenneco’s successor, had assumed Case’s obligation

to provide the benefits. CNH Pet. App. 67a-69a.

On March 9, 2004, the court granted El Paso’s motion for

reconsideration, concluding that it had “overlook[ed] the fact

that, as the signatory to the CBAs, Case LLC retained liability

for Plaintiffs’ health care costs despite E] Paso’s subsequent

assumption of those liabilities ... .” CNH Pet. App. 80a. On

September 3, 2004, the district court granted summary judg-

ment for CNH on its indemnity cross-claim against E] Paso.

Pet. App. 30a.

E. The Sixth Circuit’s Decision on Interlocutory

Appeal

On January 17, 2006, the Sixth Circuit affirmed, con-

cluding that the district court had not abused its discretion in

issuing the preliminary injunction. The Sixth Circuit also

affirmed the March 9, 2004 decision that Case was directly

liable to the retirees and the September 3, 2004 decision

granting summary judgment for Case on its indemnification

cross claim.

REASONS FOR DENYING THE WRIT

Nothing about this interlocutory decision is worthy of

review by this Court. The Sixth Circuit simply determined

that the district court did not abuse its discretion in making a

preliminary determination, based on those facts then avail-

able, that Plaintiffs were likely to ultimately prevail.

The district court engaged in a preliminary, garden-variety

exercise in contract interpretation. This dispute will ulti-

mately require examination of CBAs going back three dec-

ades and the facts surrounding the negotiation and admini-

stration of those CBAs before there can be a final determina-

tion of the intent of the parties. Because CNH claimed below

that it did not sign the CBA’s, the ultimate resolution of this

case will also require a detailed factual inquiry into Case’s

corporate history, Tenneco’s 1994 reorganization and the op-

erations of the entities involved.

These issues still to be decided, by definition, present fact-

specific questions. The final outcome is not foreordained by

the preliminary rulings of the courts below. Moreover, there

is no conflict in the Circuits. The petition should be denied.

A. This Petition Involves an Interlocutory Appeal

This Court has long disfavored the grant of certiorari with

respect to interlocutory decisions. American Construction

Co. v. Jacksonville T. & K.R. Co., 148 U.S. 372, 384 (1893);

7

Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U.S.

251, 258 (1916) (certiorari should be granted as to interlocu-

tory decisions only in “extraordinary” cases).

As the cases cited by CNH in its parallel Petition illustrate,

this Court has generally found interlocutory decisions “ex-

traordinary” only when they involve fundamental constitu-

tional rights. CNH Opp. 7-8.*

There is nothing extraordinary about this case. The district

court issued a preliminary injunction requiring the continua-

tion of health care coverage while the action below continues,

as courts have often done. See e.g. Steelworkers v. Textron,

Inc., 836 F.2d 6 (1st Cir. 1986); LaForest v. Former Clean

Air Holding Co., 376 F.3d 48 (2d Cir. 2004); Keffer v. H_K.

Porter Co., Inc., 872 F.2d 60, 61 (4th Cir. 1989); Steel-

workers v. Connors Steel Co., 855 F.2d 1499, 1500 (11th Cir.

1988), cert denied sub nom H.K. Porter Co., Inc., v. Steel-

workers, 489 U.S. 1096 (1989). As the Sixth Circuit noted

below: “As the injunction issued by the district court is a

preliminary injunction, the defendants may continue to press

their arguments below... .” Pet. App. 20a. After a final

decision is rendered, either party can then petition for a

review of all issues that turn out to be, in fact, dispositive.

See Virginia Military Institute v. United States, 508 U.S. 946

(1993).

B. There is No Split Among the Circuits

El Paso barely mentions the Sixth Circuit’s interlocutory

decision below in its arguments for certiorari review of that

decision. As set forth above, the decision below is a routine

decision affirming a preliminary injunction and therefore

inappropriate for review by this Court. Putting this dis-

positive -point aside, Plaintiffs show below that there is no

* References to Plaintiffs’ Opposition to CNH’s Petition will be shown

as “CNH Opp. vs

8

split among the Circuits with respect to the analytical

framework by which collectively bargained retiree health care

disputes are decided.

E] Paso canvasses dozens of Circuit decisions in an effort

to show a substantive conflict. El Paso seizes on any factual

similarity between a case in which an employer prevailed and

one in which the employer did not and pronounces a conflict

based on those results. As shown below, El Paso’s “con-

flicts” evaporate on even a cursory review of the cases.

1. El Paso’s Reading of Ten Outcome Deter-

minative “Rules” Demonstrates Only That the

Results Below are Dictated by the Unique Facts

of Each Case

El Paso posits ten conflicting and outcome determinative

“rules” it believes can be extracted from various Circuit deci-

sions in retiree health care disputes over the last twenty-five

years. Pet. 9-16, 18-21. In fact, as set forth in the Opposition

to CNH Petition, the Circuits are in substantial agreement on

the analytical approach in these cases.

The rules El Paso would read into various Circuit decisions

involving retiree health care disputes are so numerous that

repeating them would not be useful here, except to note that

they involve: 1) consideration of extrinsic evidence; 2) whether

the contractual analysis should begin with a presumption for

or against vesting; and 3) whether certain specific words in a

Sh ales Sees TER AREER: oe RS oR ren nner RE

9

CBA operate to vest benefits or not.” As we show below,

there is no Circuit conflict on any of these points.

a. The Circuits Agree on the Appropriate

Application of the Extrinsic Evidence Rule

El Paso asserts that the Circuits disagree about when ex-

trinsic evidence can be admitted in retiree health care disputes.

Pet. 9. To the contrary, the Circuits which have addressed this

question have all recognized and applied the centuries-old rule

that extrinsic evidence may be considered to resolve am-

biguities in a written contract.® Because of the fact dependent

* El Paso also argues that the Circuits disagree on how to analyze re-

tiree plans that are not the product of collective bargaining. Pet. 13. This

case involves a collectively bargained plan and is not, therefore, a vehicle

for reviewing the analytical tools in examining unilaterally created bene-

fit plans. Respondents note in passing, however, that unilateral plans—

unlike collectively bargained plans—typically grant discretionary inter-

pretive authority to the employer, resulting in arbitrary and capricious

review of the employers’ interpretation of plan language regarding vest-

ing. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115

(1989). In contrast, the typical retiree health care dispute arising out of

collectively bargained plans is subject to de novo review.

® See UAW vy. Skinner Engine Co., 188 F.3d 130, 142-146 (3d Cir. 1999),

Machinists v. Masonite Corp., 122 F.3d 228, 233 (5th Cir. 1997) (“Because

the agreements are ambiguous, the district court should have considered

extrinsic evidence of intent”); McCoy v. Meridian Automotive Systems, Inc.,

390 F.3d 417, 422 (2004) (“When ambiguities exist . . . the court may

examine extrinsic evidence of the parties’ intent.”); Bidlack v. Wheelabrator

Corp., 993 F.2d 603, 609 (7th Cir.), cert. denied,-510 U.S. 909 (1993)

(directing consideration of extrinsic evidence where contractual terms were

inconclusive); Anderson v. Alpha Portland Industries, Inc., 836 F.2d 1512,

1517 (8th Cir. 1988), cert. denied, 489 U.S. 1051 (1989) (“{I]f the contract

is deemed ambiguous, then the court may weigh extrinsic circumstances to

aid in its construction,” quoting Local 150-A, Food & Commercial Workers

v. Dubuque Packing Co., 756 F.2d 66, 69 (8th Cir 1985) with approval);

Bower v. Bunker Hill Co., 725 F.2d 1221, 1224 (9th Cir. 1984); Stewart v.

KHD Deutz of America, Corp., 980 F.2d 698, 702 (11th Cir. 1993) (“Once

it is established that the contract is ambiguous, . . . extrinsic evidence is

admissible to explain that ambiguity”).

10

nature of these cases, courts have almost always found it

necessary to examine extrinsic evidence to determine whether

the parties to a CBA intended to establish vested benefits.’ In

unusual cases courts have found that written language

unambiguously promises retirees vested health care,® or clearly

does not.’ There is simply no disagreement on the application

of this fundamental principle.

E] Paso asserts that the Third Circuit, in UAW v. Skiner

Engine Co., 188 F.3d 130 (3d Cir. 1999), held that the tradi- -

tional extrinsic evidence rule does not apply in retiree health

care disputes. Pet. 9. In fact, the Skinner panel explicitly con-

firmed that it does apply. The court stated that a contract

clause is ambiguous when it is subject to reasonable alterna-

tive interpretations and that “[rjeference must often be made

to the ‘contract language, the meanings suggested by counsel,

and the extrinsic evidence offered in support of each

interpretation.’” 188 F.3d at 142, quoting Teamsters Welfare

Fund v. Rolls-Royce Motor Cars Inc., 989 F.2d 132, 133 (3d

Cir. 1993). The Skinner court found the retiree health care

- “will continue” language presented in that case unambiguous,

however, only after examining prior contracts that indicated

the “will continue” language did not address duration, but

whether there had been a change in benefits from the previous

contract. 188 F.3d at 142-143. In fact, in Skinner, the court

” See Keffer v. H.K. Porter Co., Inc., 872 F.2d 60, 64 (4th Cir. 1989);

Machinists v. Masonite Corp., 122 F.3d at 233; Paperworkers v. Cham-

pion International Corp., 908 F.2d 1252, 1261 (Sth Cir. 1990); Bidlack v.

Wheelabrator Corp., 993 F.2d at 609-610 ; Rossetto v. Pabst Brewing

Co., 217 F.3d 539, 546-547 (7th Cir. 2000); Anderson v. Alpha Portland

Industries, Inc., 836 F.2d 1512, 1518 (8th Cir. 1988), cert. denied sub

nom Anderson v. Slattery Group, Inc., 489 U.S. 1051 (1989); Stewart v.

KHD Deutz of America, Corp. 980 F. 2d at 703.

® See Steelworkers v Connors Steel Co., 855 F.2d 1499, 1504 (11th Cir.

1988); Diehl v. Twin Disc, Inc., 102 F.3d 301, 307 (7th Cir. 1996).

* See Barnett v. Ameren Corp., 436 F.3d 830, 835 (7th Cir. 2006);

Cherry v. Auburn Gear, Inc., 441 F.3d 476, 483-486 (7th Cir. 2006).

11

stated that extrinsic evidence could have changed the result.

Thus, the court stated that the “out-come of this case would

no doubt be different” if the company’s former CEO had

testified that, in agreeing to include the phrases “will con-

tinue” and “shall remain” in the CBA, the company intended

that language to mean that retiree benefits were vested. . /d. at

147. See also infra at 14-15, and CNH Opp. 16.

b. The Circuits Agree That No Automatic Pre-

sumptions Apply

El Paso next argues that the Circuits disagree as to whether

an automatic presumption for or against vesting should be

applied in resolving retiree health care disputes. This issue

has long been laid to rest. All Circuits to address the issue

agree that no automatic presumption should apply.'® El Paso

nevertheless argues that_the Seventh Circuit applies an

automatic presumption that retiree health care benefits are not

vested and that the Sixth Circuit applies a presumption that

benefits are vested. Pet. 11. As the Circuit decisions show,

neither assertion is correct.

In the Seventh Circuit, as Judge Posner observed in Ros-

setto v. Pabst Brewing Co., 217 F.3d 539, 544 (7th Cir.

2000), cert. denied, 531 U.S. 1192 (2001), a presumption

would arise only in the atypical situation where a contract

contains no language that could reasonably be construed to

vest retiree benefits:

Our presumption against vesting, it is important to

emphasize, ‘icks in only if all the court has to go on is

7

'° Maurer v. Joy Technologies, Inc., 212 F.3d 907, 917 (6th Cir, 2000)

(no presumption for vesting); Machinists v. Masonite Corp., 122 F.3d

228, 231 (Sth Cir. 1997) (no presumption against vesting); Senior v.

NSTAR Electric & Gas Corp., 449 F. 3d 206, 217 (ist Cir. 2006)(no

presumption for or against vesting); Rosetto v. Pabst Brewing Co., 217

F.3d 539, 544 (7th Cir. 2000)(same); Bazzone v. Automotive Industries

Welfare Fund, 860 F.2d 1088, 1988 WL 58340 *4 (9th Cir. 1988) (un-

reported decision)(recognizing Yard-Man does not create a presumption)

12

silence. . . . The presumption is thus a default rule, that

is, a rule to be applied when there is no other evidence.

Similarly, since it decided UAW vy. Yard-Man Inc., 716 (6th

Cir. 1983), cert. denied, 465 U.S. 1007 (1984), the Sixth Cir-

cuit has repeatedly stated that it does not apply any presump-

tion in favor of vesting. As the Sixth Circuit stated below:

El Paso and CNH America misinterpret the term “infer-

ence” and confuse it with a legal presumption. Under

Yard-Man we may infer an intent to vest from the

context and already sufficient evidence of such intent.

Absent such other evidence, we do not start our analysis

presuming anything. . . . “[t]here is no legal presumption

that benefits vest and that the burden of proof rests on

plaintiffs.” Maurer, 212 F.3d at 917. This Court has

never inferred an intent to vest in the absence of either

explicit contractual language or extrinsic evidence

indicating such an intent. Rather, the inference functions

more to provide a contextual understanding about the

nature of labor-management negotiations over retiree

benefits.

Pet. App. 12a.

Although the Third Circuit in its 1999 Skinner decision

phrased the Sixth Circuit’s position on this issue in terms of a

presumption, 188 F.3d at 140 (“We cannot agree with Yard-

Man that there exists a presumption of lifetime benefits . . .”),

there is no longer any doubt that the Sixth Circuit does not

apply a presumption. The Sixth Circuit has emphasized that

no presumption applies three times since Skinner was decided

—in the decision below, in Maurer v. Joy Technologies, Inc.,

212 F.3d 907, 917 (6th Cir, 2000) and in McCoy v. Merid-

ian Automotive Systems, Inc., 390 F.3d 417, 422 (6th Cir.

2004)."'

'' Bl Paso argues that there is some confusion on this question within

the Sixth Circuit by noting that the word “presumption” appears in UAW

13

The First Circuit recognized the settled state of Sixth

Circuit law on this question in Senior v. NSTAR Electric &

Gas Corp., 449 F. 3d 206, 217 (1st Cir. 2006). It rejected

plaintiff's claim that Yard-Man created a presumption in

favor of vesting, noting that: “In Yolton, 435 F.3d 571[(6th

Cir. 2006)], the court said: ‘All that Yard-Man and subse-

quent cases instruct is that the court should apply ordinary

principles of contract interpretation. Jd. at 580.’”

The Yard-Man inference is simply one tool among many

used to interpret CBAs.'? As the Sixth Circuit explained in

Golden v. Kelsey-Hayes Co., 73 F.3d 648, 656 (6th Cir.), cert.

denied, 519 U.S. 807 (1996):

the Yard-Man inference, and the other teachings of the

opinion regarding contract interpretation and the con-

sideration of extrinsic evidence, simply guide courts

faced with the task of discerning the intent of the parties

from vague or ambiguous CBAs.

c. The Effect of Specific Words or Phrases

Finally, E] Paso attempts to articulate a Circuit conflict by

asserting that cases El Paso characterizes as having identical

v. BVR Liquidating, Inc., 190 F.3d 768 (6th Cir. 1999). That reference,

however, appeared in the court’s characterization of a party’s argument,

not in the panel’s articulation of the Yard-Man decision. The panel itself

Clearly stated that Yard-Man permitted an “inference,” and that “Yard-

Man does not shift the burden of proof to the employer.” 190 F.3d at 772,

quoting Golden v. Kelsey-Hayes Co., 73 F.3d 648, 656 (6th Cir. 1996),

which in turn quoted UAW v. Cadillac Malleable Iron Co., 728 F.2d 807,

808 (6th Cir. 1984), for the proposition that “there is no legal presumption

based on the status of retired employees.”

'? In any case, neither the district court nor the Sixth Circuit relied on

the Yard-Man inference. The Sixth Circuit noted that, while the district

court mentioned the inference, its “analysis does not in any sense rely on

an inference. . . . Instead, the district court interpreted the language of the ,

agreement and found evidence that the defendants intended to confer life-

time benefits upon the plaintiffs.” Pet. App. 14a. (emphasis in original).

—

retiree health care provisions were decided differently by

different Circuits. Pet. 18-21. The cited cases actually in-

volve quite different language in different contexts. They are

not at all in conflict.

i. El Paso’s “Will Continue” Argument

El Paso first argues that Circuits differ on whether the words

“will continue” automatically vest benefits. The answer from

the Circuits, not surprisingly, is that it depends on the factual

context. El Paso argues that the Sixth Circuit’s decision in

UAW v. BVR Liquidating, Inc., 190 F.3d 768 (6th Cir. 1999),

cert. denied, 529 U.S. 1067 (2000), the Third Circuit’s

decision in Skinner, the Seventh Circuit’s decision in Senn v.

United Dominion Industries, Inc., 951 F.2d 806 (7th Cir.

1992), cert. denied, 509 U.S. 903 (1993) and the Eleventh

Circuit’s decision in Stewart v. KHD Deutz of America, Corp.,

980 F.2d 698 (11th Cir. 1993), all adopted conflicting rules

with respect to the same retiree health care provisions. A

cursory review of the cases shows that the language examined

in each of the cases was dramatically different.

In BVR Liquidating, the company had agreed, in a prior

contract, that retiree health care benefits would be paid for

retirees “until death,” that is, that the coverage would not

continue for surviving spouses after the retiree’s death. A

subsequent contract expanded the coverage to include sur-

viving spouses and therefore the prior language that termi-

nated coverage at the retiree’s death was removed. 190 F.3d

at 770 n. 5. The new, more expansive provision stated that

the retirees would have coverages “continued for themselves,

their spouses, surviving spouses, and eligible dependents.” /d.

After examining the entire contract, including durational

clauses, the Sixth Circuit found the language ambiguous,

reviewed extrinsic evidence and concluded that the benefits

were vested. Jd. at 774-775.

In Skinner, a CBA provided that the company “will con-

tinue to provide” medical coverage. 188 F.3d at 135. The

15

Third Circuit noted, however, that this language had been

changed from contract to contract depending on whether the

new contract continued previous coverage or changed the

previous coverage. If the latter, the contract contained “will

be instituted,” for example, rather than “will continue.” The

Third Circuit found, based on this history, that “will con-

tinue” referred to whether there had been a change in cov-

erage, not to duration. 188 F.3d at 142-143. The Third

Circuit also relied on the fact that the retiree health care

language did not specifically mention retirees at all:

the CBA provisions make no material distinction

between active employees and retirees in this regard.

The only reasonable conclusion—if one begins with the

uncontroversial premise that benefits for active

employees were not vested—is that benefits for retirees

were likewise not vested.

Id. at 144:

After examining other parts of the CBA and, as noted

above, extrinsic evidence, the Third Circuit in Skinner

determined that the contract provisions were not ambiguous

and held, based on the particular facts described above, that

the benefits were not vested. /d. at 147.

El Paso claims that the Seventh Circuit in Senn applied yet

a third outcome-determinative rule to “will continue” contract

language. In fact, as the Seventh Circuit later pointed out in

Bidlack v. Wheelabrator, 993 F.3d at 608, the language in

Senn did not merely say that retiree benefits “will continue:”

The language in Senn was weaker: it was that the

company “will continue for retired employees” a spe-

cified premium contribution. And the final agreement

between the company and the union in that case, which

could be thought declaratory of earlier understandings,

said that coverage “shall be continued during the term of

this agreement.”

ei

16

The other case cited by El Paso in support of its “will

continue” argument, Stewart v. KHD Deutz of America, Inc.,

980 F.2d 698 (11th Cir. 1988), did not involve “will con-

tinue” language at all. Rather, the contract provided that cov-

erage “shall be provided . . . during retirement.” 980 F.2d at

701-702. Because the contract also contained a reservation of

rights clause, the Eleventh Circuit found it ambiguous and

remanded for consideration of extrinsic evidence. /d. at

703-704.

As the Circuit decisions cited by El Paso above show,

neither the Sixth Circuit, in BVR Liquidating, nor the Third,

Seventh or Eleventh Circuits based their decisions on a

myopic reading of a two-word phrase such as “will continue.”

Rather, all the Circuits to address collectively bargained

retiree health care disputes have applied traditional rules of

P contract interpretation to the unique facts of each case.’

ii. El Paso’s Pension Linkage Argument

El Paso next asserts that two Sixth Circuit decisions,

Golden v. Kelsey-Hayes, supra, and McCoy v. Meridian Auto-

motive Systems, supra, were decided differently than two

decisions E] Paso claims had identical governing documents

—the Second Circuit’s decision in Joyce v. Curtiss-Wright

Corp., 171 F.3d 130 (2d Cir. 1999) and the Seventh Circuit’s

decision in Vallone v. CNA Financial Corp., 375 F.3d 623 °

(7th Cir.), cert. denied, 543 U.S. 1021 (2004).

Again, a review of the facts shows that these decisions

turned on very different written provisions. The decisions are

not at all inconsistent.

'? See CNH Opp. 13-20.

17

In Golden, the court articulated—as one factor'*—that the

CBA provided that retirees were eligible for health care

benefits if they were eligible for a company pension. 73 F.3d

at 656. The court in McCoy addressed similar pro-

visions—and additional extrinsic evidence—and reached the

same result. 390 F.3d at 423-424.

In Joyce and Vallone, the courts rejected vesting claims

because explicit reservation of rights clauses gave the em-

ployers the right to modify their benefits. In Joyce, the

Second Circuit rejected a vesting argument where a summary

plan description given to retirees specifically stated that their

retiree medical benefits “are of a contractual nature, and they

may be modified from time to time or terminated as a result

of contractual negotiations.”'* 171 F.3d at 132. In Vallone,

the Seventh Circuit examined a plan unilaterally promulgated

by the employer. The plan documents contained a reservation

of rights provision which stated that the retiree coverages

“may be amended, revoked, or suspended at the Company’s

discretion at any time, even after your retirement.” 375 F.3d

at 636.'°

'4 The Sixth Circuit in Golden also relied on many other facts as well,

including language in the SPDs and the fact that the company continued

to provide retiree health care long after it sold the facilities in question.

Golden, 73 F.3d at 656-57. The district court subsequently found a

“veritable mountain of evidence” to support its finding that retiree health

care benefits had vested. Golden v. Kelsey-Hayes Co., 954 F. Supp. 1173,

1187-88 (E.D. Mich. 1997).

'S See Joyce v. Curtis-Wright Corp., 992 F. Supp. 259, 263-263 (W.D.

N.Y. 1997), setting forth factual details.

'® The Seventh Circuit’s Vallone decision was also based on the court’s

finding that the plan documents granted the company discretion in

interpreting the plan, and that the company’s interpretation must therefore

be upheld unless it was arbitrary and capricious, as held in Firestone Tire

& Rubber Co. v. Bruch, 489 U.S. 101, 115 (1989). 375 F.3d at 631-632.

This grant of discretion is typical of unilaterally-promulgated benefit

plans and rare in collectively bargained plans. Collectively bargained

18

iii. El Paso’s Durational Clause Argument

El Paso notes that an Eighth Circuit case interpreted a

durational clause as being inconsistent with vesting, and

argues that this decision is inconsistent with the Sixth Cir-

cuit’s determination in the decision below that a general

durational clause in the Case CBAs did not preclude vesting.

Pet. 20-21. The two decisions are not at all inconsistent. In

Anderson v. Alpha Portland Industries, Inc., 836 F.2d 1512

(8th Cir. 1987), cited by El Paso, the CBA specifically

provided that retiree insurance coverage could be “amended,

modified or supplemented in collective bargaining between

the parties.” The Eighth Circuit therefore decided those

benefits could be modified. 836 F.2d at 1514-1515. The

general durational clause examined by the Sixth Circuit

below is dramatically different. That clause merely provides

that the insurance plan would run concurrently with the CBA.

Unlike the durational clause in Anderson, the general

durational clause examined by the courts below does not

mention retirees and contains no statement that retiree

benefits could be modified by subsequent negotiations. Pet.

App. 13a-14a. It is simply not possible to conjure a conflict

between the decision below and the Eighth Circuit’s decision

in Anderson.

2. Retiree Claims are Frequently Rejected Within

the Sixth Circuit and Frequently Prevail in

Other Circuits

El Paso seeks to extract outcome-determinative rules from

a variety of factually distinct cases. As showr above, the

Circuits have not applied any such rules, but have applied

traditional rules of contract interpretation to widely disparate

factual situations. The absence of any outcome-determinative

retiree disputes, therefore, are typically reviewed under a de novo standard

under which the employer and retiree interpretations of applicable retiree

healt: care provisions are entitled to equal weight.

19

rules is further demonstrated by noting that retirees frequently

fail in the Sixth Circuit'’ and frequently prevail in other

Circuits. '*

El] Paso argues that a substantive split must exist because

retirees have prevailed more often in Sixth Circuit decisions

than in Seventh Circuit decisions. Pet. 15 n.5. As the cases

cited by El Paso in support of this argument show, how-

ever, a majority of the Sixth Circuit cases, due to geo-

graphical realities, arose out of auto industry contracts,

with their own distinct patterns and history.'? In contrast

the Seventh Circuit cases arise out of a more diverse

group of industries—brewery,” electrical,”’ steel,?” and

'” See e.g. UAW v. Cleveland Gear Corp., 1983 WL 2174 (N.D. Ohio 1983),

affd 1984 U.S. App. LEXIS 13700 (6th Cir. 1984) (unpublished opinion);

Bittinger v. Tecumseh Products Co., 83 F. Supp.2d 851 (E.D. Mich. 1998), aff'd

201 F.3d 400 (6th Cir. 1999); Maurer v. Joy Technologies, Inc., 212 F.3d 907, 919

(6th Cir. 2000)(summary judgment against certain retirees); UAW v. Roblin

Industries, Inc., 561 F. Supp. 288 (W.D. Mich. 1983).

'* See e.g. Abbruscato v. Empire Blue Cross & Blue Shield, 274 F.3d

90 (2d Cir. 2001); Diehl v. Twin Disc, Inc., 102 F.3d 301 (7th Cir. 1996);

Rossetto v. Pabst Brewing Co., Inc. 217 F.3d 539, (7th Cir. 2000); Chiles

v. Ceridian Corp. 95 F.3d 1505 (10th Cir. 1996) and Stewart v. KHD

Deutz of America, Inc., 980 F.2d 698 (11th Cir. 1993).

'? See e.g. UAW v. Cleveland Gear Corp., 1983 WL 2174 (N.D. Ohio

1983), aff'd 1984 U.S. App. LEXIS 13700 (6th Cir. 1984) (unpublished

opinion); Bittinger v. Tecumseh Products Co., 83 F. Supp.2d 851 (E.D.

Mich. 1998), affd 201 F.3d 400 (6th Cir. 1999); Maurer v. Joy

Technologies,inc., 212 F.3d 907, 919 (6th Cir. 2000)(summary judgment

against certain retirees); UAW v. Roblin Industries, Inc., 561 F. Supp. 288

(W.D. Mich. 1983).

*° See Zielinski v. Pabst Brewing Co., _ F.3d _, 2006 WL 2567468

(7th Cir. 2006); Rossetto v. Pabst Brewing Co., 217 F.3d 539 (7th Cir.

2000); Pabst Brewing Co. v. Corrao, 161 F.3d 434 (7th Cir. 1998).

”" Barnett v. Ameren Corp., 436 F.3d 830 (7th Cir. 2006).

- Murphy v. Keystone Steel & Wire Co., 61 F.3d 560 (7th Cir. 1995);

Senn v. United Dominion Industries, Inc., 951 F.2d 806 (7th Cir. 1992).

20 .

auto,’ each with its own pattern and history. The difference

in results reflects the differences in the industry contracts, not

any substantive difference in the applicable legal standards.

C. The Sixth Circuit’s Preliminary Decision Raises No

Issues of Importance and Does Not Conflict With

Any Federal Policy

El Paso argues that crucial issues of national importance

are at stake in this case. Pet. 21-25. But, as described above,

and in Plaintiffs’ Brief in Opposition to CNH’s Petition, the

decision below was a routine preliminary injunction decision

which applied ordinary, hornbook principles of contract

construction.

E] Paso’s assertion rests on its claim that different Circuits

have applied conflicting outcome-determinative rules. As

shown above and in the ‘CNH Opposition Brief, however, all

Circuits are in agreement on the traditional rules of contract

construction to be applied in resolving collectively bargained

retiree health care disputes wherever they arise.

El Paso proposes, in effect, that all courts should abandon

traditional contractual analysis, which seeks to determine the

intent of the parties to CBAs, and instead adopt an outcome-

determinative rule regardless of what the evidence as to- the

parties’ intent actually is.2* El Paso cites Litton Financial

3 Bidlack v. Wheelabrator Corp., 993 F.2d 603 (7th Cir. 1993); Diehl

v. Twin Disc., Inc., 102 F.3d 301 (7th Cir. 1996); and Cherry v. Auburn

Gear, Inc., 441 F.3d 476 (7th Cir. 2006).

24 £1 Paso, like CNH, claims that the alleged “conflict” exacerbates the

“evil of forum shopping.” Pet. 24-25. Putting aside the fact that Plaintiffs,

UAW, its witnesses and voluminous documents are within the forum

chosen, El Paso, like CNH, never before complained about the venue

which it acknowledges was properly selected by Plaintiffs.

5 El Paso also cites this court’s decision in Allis-Chalmers Corp. v

Lueck, 471 U.S. 202° (1985), which held that federal law, rather than state,

applies to disputes arising out of collective bargaining agreements. That

re a eccentric A A CC CE CE — —

Printing v. N.L.R.B., 501 U.S. 190 (1991) in support of this

proposal. Pet. 9-10. The Litton decision, to the contrary,

endorses the traditional approach to contractual interpretation

adopted by the Circuits in retiree health care cases arising

under a CBA. Litton addressed the question of whether a

dispute (unrelated to retiree health care) which arose after the

termination of a CBA was arbitrable under that agreement’s

grievance procedure. In Litton, the Court stated that whether

rights continue beyond the termination of a CBA is “deter-

mined by contract interpretation. Rights which accrued or

vested under the agreement, will, as a general rule, survive

termination of the agreement.” 501 U.S. at 207.

All Circuits are in accord.

CONCLUSION

For the reasons set forth above, El Paso’s request for

review should be denied.

Respectfully submitted,

ROGER J. MCCLOW *

KLIMIST, MCKNIGHT, SALE,

MCCLOW & CANZANO, P.C.

400 Galleria Officentre, Suite 117

Southfield, MI 48034

(248) 354-9650

Counsel for Respondents Yolton,

Montgomery, Teas, Betker,

* Counsel of Record Maynard and Halsted

proposition is uniformly accepted by all Circuits and the company does

not attempt to show otherwise.