individual who is a retiree from a telephone company he retired from a company known as valor telecommunications which was later merged and became windstream telecommunications that merger and change of name occurring in two thousand and six i also represent the communications workers of america which is mr lee's union mr lee's union bargaining agent the litigation commenced when valor windstream yes yes and then the way the communications workers came into the case was that seat of a filed a motion to intervene to enforce it worry your honor this court the reason we're here and really essential to our argument is that this court has held that when it collective bargaining agreement is part of the picture that it is unwise for the court to make a decision without reviewing the collective bargaining negotiating history in the custom and practice of the parties the court below granted summary judgment to windstream valor against mr lee and dismissed c to be ace cross complaint on the grounds as held by the court below that the think best thing for a language you realize the right the right of the retirees to the company contribution schedule to their premium costs is very specifically and expressed plea identified and established in the collective bargaining agreement not for all time i mean that's the whole point about  always for a term and that's because corrections as well of the employers acknowledge that times change what this case is about your honor is the company's unilateral drastic change in a term of the collective bargaining agreement during the term hundreds of the collective bargaining agreement if you agree there are bars that are risky precedence control or are you arguing that this is somehow  recent presidents don't control the united states supreme court decision in the pittsburgh plate glass company decision that's the decision that hailed that recognized retiree's interests i just dealt with it and  paled that when a collective bargaining agreement does cover the rights of retirees or the conditions of retirement that that agreement isn't tied into enforcement under section thr may have occurred or what might occur after the expiration of this contract the problem is that they changed the terms of the contract or way when did mr lee's write that mr lee required under these really didn't retire before the prior to the current contract he did retire before the current contract he retired during the term of the two thousand and five a mr liddy that his rights  contract said that this applies to persons who retire during the term of this contract after that contract was replaced by the two thousand and eight to two thousand and eleven contract the company continued to honor his retirement conditions and continued to provide the medical retiree that had been the case i don't think your honor but back to the do contracts first the contract that was entered into in two thousand and five that listed until two thousand and eight and in the contract that was injured in two in two thousand and eight and lasted until two thousand and eleven the so we have a one way street here in other words the union got increased retirement benefits in two thousand and eight that's truly gets the benefit of those even though he's retired whereas by that but if the if the benefits are so terminated or otherwise if that's your position right that's what i'm here our position is narrower narrower than that and specific to the facts of this case and to the contract in this case the contract in this case says that in order to receive retiree medical benefits the retiree must pay a percentage amount of the retiring medical premium set forth below and the contract says in section two of the memorandum of agreement on retiree medical benefits the company and retiree contribution percentages amount will be based on the following contribution schedule will be based and under that contribution scheduled set forth in section two of it other provisions of said it can be changed or lemonade or and attend at will to use them we continue your honor and what we are here about your honor is that the discrepancies between these different provisions create ambiguity switch entitle us to because we have submitted sufficient evidence of a summary judgment nature through affidavits and documents and exhibits which show there are inherent there are internal discrepancies in these fish that says that because that in a collectively bargain a plan that is a risk of a plan that's the result of collective collective bargaining agreement this court's decision in john morell and company versus united food and commercial workers international union didn't address that question the court said that the plans at issue were pinned to cease to collective bargaining agreements and it is usually construe collective bargaining agreements without regard to their bargaining history therefore before examining the relevant master agreement provisions we will review the negotiating history of those agreements that was to determine the best  in other words if if if if a risk of vesting cases govern the contribution formula as well as the benefits to be received then then we're we're dealing with a crown cork all your honor those are controlling cases it's an essential piece of evidence here that was before but i'll have you not really i have you not reach i'm not plan benefit is governed not by a recess but strictly by three a what the courts have held that the contractual agreement can govern and i think that's really an essential meaning always go govern under ruth ridge's contract here your honor the company proposed at the two thousand and eight bargaining table exactly the change that they made unilaterally to us later way your view is the collective bargaining agreement part of the plan they arista plan in this case referred to the collective bargaining agreement and said if there's a conflict between the plan and the collective bargaining agreement the collective bargaining agreement will govern here you valor play and say this quote however if there is a conflict between this document and your collective bargaining agreement the collective bargaining agreement will control what record page hundred ninety page seven of seventy two of the valor plan under which mr li retired at the collective bargaining agreement said the company will make these percentage contributions to your premium cost contribution and to the extent there may be other provisions that are in conflict we're not arguing that we were entitle to summary judgment we didn't move for s judgment what we're arguing it is that there ambiguity so that need to be probed probed in depth in a trial and that arc my clients have a right to do that what are their ambiguities what are the evidence do you want other than what's already in the record about the course of conduct that they paid for the benefits even though they didn't have to negotiations that went on all i can really say your honor is that if i had felt my clients were entitled to summary judgment i would have moved for it if this court if this court deems that the evidence is already in the record to show the ambiguity s but are the lack there for that or the l no well our position here your honor and the point of our appeal is that the negotiated collective bargaining agreement can't be ignored and here the collective bargaining agreement said the company will provide these percentage contributions to your for your premium cost they will provide it now whatever may have occurred or might have occurred after the expiration of this two thousand and eight to two thousand and eleven agreement is not part of this case we are challenging the unilateral change during the term of a can of a contract the contract which say as during the term of the company will provide we'll pay these percentages of your cost contribution of the premium cost and we contend that that seals your honor thank you very circuit his that we have found and i have looked at night if you long and one thing we can do is layer there so that it may not be as important as it seems right now first of all your honor did the same thing in maytag of course even if the court decides not to look at the broad reservation of rights that's contained in the wouldn't dream plan to contain ten times in the  documents or the dollar summary plan description one need only look to the c b a's themselves for a broad reservation of rights and paragraphs that it's hard to imagine a broader reservation of rights in that would it give us the right of the employer to do is change the level of retiree medical benefits the amounts for cost of premiums the premium pricing mechanisms the maximum current company contribution  one need only look to the paragraphs six as a blanket reservation of rights and of course once you have a clear blanket reservation of rights your honor then it becomes as you put it difficult sort of explicit vesting language would be required what sort of affirmative indication of vesting would be required here the cd and mr li point to the will be language found in paragraph two so we look then to established circuit precedent on other provisions that have not sufficed and you need look no further than the maytag decision where for the life of the retire eve was the language you need look no further than the crown court decision which said until death which was not sufficient and it doesn't even come close here in addition to that under the two thousand and eight in a way there was a summary attached to it that expressly states has a blanket reservation of rights to modify suspend or terminate coverage it also indicates that pensioners and dependent contributions are subject to alteration that last quote from that summary attached to the two thousand and eight him away was not cited by counsel in this briefing for whatever change the level one type of benefits in any way shape or form and at their discretion your honor i in addition to that these particulars to him away we believe of the parties to provide for the unilateral right to amend just as congress frankly intended study the record what was the ballot or land to which the be there was an all terra all tell summary plan and then there was a valor similar summary plan description both of those documents contain the broad reservation of rights the current plan contains broad reservations of right the plan in place at the time of of retirement of mr lee and that is an issue as to all of the retiree's had the reservation of rights there's not been one document that i have seen that i don't want to talk about extensive evidence particularly because i don't believe that it's appropriate to consider but if you were to look at the expense account and i don't see any indication of besting at all top side or bottom true the windstream plan wasn't place and would cover them with exactly the same benefits during that time frame inquired about so that is not any indication of us to the other interesting fact that i don't think it weighs in either way on the vesting issue i just don't see it may mean that they wanted an agreement and they mean that they were providing notice as to what they were intending  paragraph eight of the two thousand and eight in the way but it certainly doesn't suggest investing at least i don't understand how it could your honor i to find an ambiguity here under the existing case law would be extreme frankly and i don't see a way to get there from here i will also indicate to you that these issues were heavily briefed before judge holmes and judge holmes was very measured very careful very thoughtful and went through every single document submitted and i believe wrote very very measured in thoughtful opinions on all of these subjects leaving very little  in question so with that you know your honor i'll say that i don't believe that there is any indication of vesting that can overcome the reservation of rights  i don't believe that to your question to counsel other than correct to that can't point to any to your question about whether see this is a three a one case or in a recent case the one in the same because the contract is both the say ok let's just go ahead and look at the extent of evidence and why not go ahead and look at that we don't believe that it provides any evidence of vesting at all much less explicit indications of s t that's required  court so for all of those reasons we believe that judge holmes is well reasoned opinion should be  i don't want to speak just to speak but if the court has any questions i'm happy to answer them a council doesn't quote the last clause in no him away paragraph six which is quote shall not be subject to the grievance or arbitration procedure set forth in the collective bargaining agreement is a reasonable interpretation of that clause that what it really means is and what it stands for is that these questions the disputes about the planned don't go through the grievance and arbitration procedure of the collective bargaining agreement in the deposition that i took of mr david daniel who negotiated this him away three times he talks about how that is a purpose that is a purpose of that in a way paragraph six and that is in the record record page thirteen seventy four on pages one zero six two one zero eight of mr daniels deposition i think because i'm not sure two levels of our of our argument your honor one of the levels of our argument is that the these the contract on its face prohibited the company from making this change unilaterally make this argument about the ambiguity in response to what the lower court did because the lower court held that the collection of documents unambiguously gave the company the right to make us unilateral change i argued that it did not and in fact that even him away paragraph six is susceptible reasonably to another interpretation that is that it exempted these issues from the grievance can't be an administrative procedure and under the way this case developed it was really incumbent on my clients to respond to the company's lawsuit rather than to seek an administrative agreeme