role of northrop grumman in this matter northrop grumman was had nothing to do with the facts given rise to this case they had nothing to do with the negotiated contracts or the operation of the plant they had nothing to do with the changes in the health care benefits that  issued here today what it did was after the plant was closed after the contracts were terminated it acquired the corporate parent of kelsey hayes it owned it for about a year and then sold it back in two thousand and four there's no theory under which north is liable for that as a matter of simple corporate law not alter ego not to an employer the simply aren't the facts to support it and it should have been dismissed from the case and certainly not subject to the injunction that gave rise to the appeal here with that i do know that the that we did assert this before the district court with certain or brief the union hasn't even responded to it it shouldn't be an issue in this case so let me turn to the main attraction which is of course the location of the tack a decision after thirty something years of yard me and this is the third man case to reach this court since the original tackett case we've got tackett attack and three now we've got the gala decision and of course i'm acutely you dissented from that decision and then we have this case i know the courts for me are with those holdings is really only three cases we're talking about which would be tackett galil and the  gallo so let me talk a little bit about the contract in this case and judge strange with respect to you i don't necessarily agree with what you put in the dissent but i would address a number of facts or that i think will some of the concerns that you had in that case and then also we think point to why even under your dissent the decision this case should be overturned let me start just briefly with the structure of this contract which is kind of unusual we've got the main collective bargaining agreement as you might expect a little thing a stick in your back pocket if you're a worker we've got a supplement each which contains it's about five pages long and it talks about the company's going to implement a health care program and then the terms of that program are set forth and supplement each one each and each one together about one hundred and forty forty pages or so the first i'm going to talk about which i would not have talked about two years ago is the terminations clause there is a general terminations clause in the agreement  which under yard man and it's progeny would have been irrelevant that's not true anymore that's a critical part of this contract and let me talk even further on that it's not only specific to the contract or the general clauses to the contract as a whole but it's also repeated again or referenced again in supplement age so we now have not just a general term a nation clause but we have a termination clause that specifically applies to benefits into changes in the benefits in the  so this case is already distinguished in light of the attack at cases this is a conflict of limited duration not just in general but we also have the specific laws applying to insurance and you wipe out all the old man law that alone means this is a contract but the union is hang its hat and the language in supplement each one that's the part that describes what the coverage is and the operative word really is continued that the benefits will be continued ok the word doesn't the word lifetime doesn't appear as to these benefits which i'll get back to in a minute nor does vested nor benefits for life or any sudden like that that i suspect we're going to hear about today when people try to describe these benefits as being lifetime benefits by times and using words only eight letters in contrast to the health care provisions which don't say lifetime vested for the life of the retiree or simple words like that there is such a reference in connection with life insurance some page for sixty three of the record where they say flat out they will continue for the lifetime of the individual and they can ordinary contract construction rules say that if we put language in one place and not another that implies that they don't belong so this contract supplement each one actually benefits were terminated do you are easy to your position that they will not terminated by the two thousand and one agreement or that they were terminated by the two thousand and one and we let me start by saying i'm going to reverse your question a little bit as it's not really clear that when with when they terminated it's how long they continued and so the contract the benefits only continue for the life of the contract which would have expired with the contract which is a three year deal and of course that contract was later terminated even further by the plant closing agreement no matter what the plant closing agreement for a minute here it doesn't apply now you may say well why am i so sure of that because this court held it doesn't apply as you might remember i don't think any of these judges the judges here today were on that panel but we actually moved to arbitrate these claims under the arbitration provision contained in the plant closing agreement the union argued to suffer asli and repeatedly and ultimately successfully that they weren't bound by it because it didn't apply to them so that plant closing agreement doesn't apply all it says in any case is that they're determined in the old agreement and that whatever benefits might have survived were exempted from the release the plant closing agreement doesn't have any further perpetuation language in it so than so the nine hundred ninety eight general directional clause governs here that's correct the screw that is correct help me understand how the record that it has the notice provision if i think it's article sixteen term in the nation it continues in full force and effect without a change through february one two thousand and two but if either party desires to that it is a three year agreement on the shall continue for force effect without change through february two thousand and two which implies ok after february one two thousand and two we can make whatever changes we want to when no it doesn't really say that because what it says is if either party desires to modify or change this agreement it shall six months prior to february to two thousand and two or any subsequent february to give written notice to such effect and within ten days after receipt of that notice a conference will be arranged to negotiate the proposals in which case this agreement shall continue in full force and effect until terminated as provided here in i don't see anything in the record that indicates that there was a written notice of modification nor that there was a ten day provided it within the ten day period nor that there was a conference arising image nor that there was negotiations on the proposal so why is this agreement not of the duration clause itself then when the plant closing agreement applies here if that's how you satisfied the duration clause of the one nine hundred ninety eight collective bargaining agreement which you say governs here then the why you terminated the health care agreement is through the two thousand and one document is a couple of steps in between which is that the the plant closing agreement reflected all of the things that you just said which was that the parties where there was notice given obviously the plant was being closed the negotiating over it and they terminated the agreement the what this court held before though was the contractual commitments contained in that agreement did not apply a particular provision to these retirees so we did satisfy the termination provision of the agreement on through that through that mechanism so what i'm still struggling with if the way you satisfied it was through the two thousand  agreement i can understand perhaps there's no room of the question but the terms that would now cover the health care that was provided are and the nine hundred ninety eight agreement is terminated by the methodology established in the two thousand and one of the current let me just go back to the arbitration decision that this court made it was argued before i think we're looking at two different issues which is one is does the are the retiree's bound by the agreement and what this court held was to the retirees are not bound because they're retired at that point they say you know longer represents them that doesn't stop us from satisfy the termination provision of a contract by tendering the exact same exact same notice so in terms of the agreement itself they're not covered by that but in terms of the fact that it terminates the agreement and it satisfies the agreement requirements the contract it certainly does that  two questions one i gather your client's position is that the contract design ambiguous that is absolute correct now if that's so you can see though that if we did get to extremes a gap that ends that that would that would lean in favor of lifetime benefits you know for three reasons and i see i'm out of time but always for them as quickly as i can first of all is the supreme court held an attack at decision ambiguous promises should not be construed to provide lifetime benefits it's only for a reasonable period of time and i would submit that fifteen years on a three year contract is a very reasonable period of time secondly we don't believe that this contract on ambiguously provides these benefits third if you look at the evidence that was submitted by the union it actually says excludes met major medical coverage from the intent here and refers specifically to three declarations that were submitted in this case hell we spoke and there was one other one and in all of those they are they suggest they testified that major medical benefits were excluded from the discussion regarding lifetime retiree coverage you know that's our raises kind of why loudly why would your company for fourteen years continue these benefits if it had no obligation to do so my answer is real simple yard man and it's progeny we've had we were under that decision for thirty something years here this court addressed something like i believe it's twenty three different yard man cases the defendants lost i believe in not seek to negotiate a different statement in the contractual arrangement in you have a whole series of cases in which and i understand they were under yard man in which a court says here's the language here's what it means under yard man now you come to the next negotiation schedule with the union and you say we understand what that language mean who've already been told that we want to negotiate a different language because we're not willing to continue to pay health care but i don't see anything in the record that indicates in th meant in four states we didn't know what it meant in the other forty six which were at odds with the r v and you know there was always the possibility that thirty three years later the united states supreme court would find that unanimously that yard man was wrongly decided so the parties left it to the future in the future was the supreme court hadn't spoken yet now it has we couldn't be saved any more questions for you are you have thank you good morning your honor of build worth my memory on behalf of al police i'd like to focus on three arguments that do not in the closing agreement in this case applies to these retirees it terminates the contract a year early and it decisions in which it said that time he and selenski cases in which it said in that circumstance which is our circumstance the benefits are obviously lifetime there is no terminations so you don't get to galileo you don't get to attack it etoile there is no duration clause in the operative agreement there is a duration clause and schedule in supplement age it's article ten supplement each was terminated by the terminations agreement my point is that the terminations agreement continued it was the party's effort to end everything except the two things that wouldn't end pension benefits and health insurance benefits for retirees and both the district court and the arbitrator interpreted the terminations agreement that what and in fact in the briefing at least kelsey ha didn't disagree there is no other way to interpret it they cited a case from the circuit having to do with should issue a stop will some how we should be a stop from our argument that we were going under the termination agreement because we under judicial asop all misled this court in the district  because we made the arguments we did relative to the duty to arbitrate under the closing agreement we did no such thing when we filed our complaint we allege that all of the retirees were covered both by the ninety eight agreement which is what created the benefits in by the closing agreement that's in our complaint we didn't hide anything we argued that the arbitration provision should not apply to retirees and we were successful in part with the district court and with this court as to those retirees who are here today that's all we didn't had one of the let's assume you're right that the coal plant closing agreement which was in two thousand and one did not control the terminations of the health care benefits but then why would that mean that the health care benefits continued on for another year until the c b a expired which was in february of two thousand  well no because the terminations agreement judge by heard referred to it terminated april of two thousand and one that is what the parties did is they moved up the terminations date by the year at the parties effort in a closing context to release all obligations i just opens up the life care for health care benefits for a lifetime that's right because then  in other words that was the exclusion that's what continued which is exactly the kind of language that the seventh circuit dealt with in these cases in the same context that is you're in a closing agreement situation you enter into it closing it remans by its nature if you're not going to put a trauma nation poison it in a so that if you provide for benefits for retirees that in a three year collective bargaining context would it did terminations of a c b a that had that life health care benefits that were alleged for life but the majority and gallo says not oh well two points one i should probably shouldn't start with this but i will we prefer the dissent back in the terminations clause we don't have that language here so that the language is different if you look at it the majority opinion in gallo the majority opinion in gallup didn't say irrelevant or you still need terminations clauses the majority opinion in gallo said there's a reference to the c b a and that reference brings in the termination for was so retiree's still loose here we don't have that we just have a flat statement and because his doesn't claim otherwise there's nothing in there briefing claiming that the the contractual analysis that the majority did in gallo should apply here because it does the lead words are just different but what it would it say so to speak in the two thousand and one agreement was the death and the program of insurance which was the program agreement under which a and the same specifics under age one it just defined benefit yes the second is this court clerk decided to kelsey hayes case way back in the ninety's involving the same parties the same plant the same contract language this and if you go back to the decision in just look to the headings there was overwhelming evidence that everybody understood that the benefits were lifetime the headings are  the s p d the s p d said they were life there ah the strike situation they pay them during strikes the sale situation they recognize the lifetime obligation and various sales exit interviews  there is a mountain of evidence that the parties understood here and this is part of our context that the benefits were lifetime and then in one thousand nine hundred seven judge good issued his decision finding that the benefits were lifetime the pardon souther that case and then in one nine hundred ninety eight entered into the ninety eight agreement with the same language points that the opinion in the concurrence in tack it had made the only additional points this court made in tech at three were that an ordinary principle of contract law  tackett arm is that the parties understand that there are incorporating existing law citing worse than worse and said that's includes common law in the second point was that this court made changes in the law don't count unless the parties say at the time but there are going to contemplate changes what does that mean here pretty clearly it means i mean maybe it means you've got to recognize yardman lease as to parties who are negotiating at the time yard means in effect but we don't have to go anywhere near there we can say that what this court had to rip men are or maybe not specifically thinking of this case obviously but it fits like a glove here you have parties have litigated language found to be lifetime and then agree the next year the same language of course they understood it to be a lifetime why would they do anything differently and we cited in our brief it's not just this court it's interpretation of tack in tech at three but the supreme court carbon fuel case in earlier case talks about a similar concept that parties are incorporated whatever existing what is that applies so we think this case in context is different from gallo versus mon in that respect none of that parties and how could the intent be any clearer in one thousand nine hundred eighty eight and it has to be contemporaneous and then that's when they signed the agreement  there is really no counter to it that's why they have to argue that tack it accompanied by gallo versus mon must be read to mean that in any case if you don't have the words lifetime or the equivalent and you have a general the ration for as you lose that moral while i would say less i don't think it goes quite that far and i and there's no reason for this court to go that far when you've got these kind of facts well let me bring them three selves if there's no explicit lying w requirement that's right that's right the real circuit that's right is it one final point in a major point and that is we won this arbitration they want that we fought in front of an arbitrator and that arbitrator found in our favor as to both in one thousand nine hundred eighty eight in two thousand and one agreements bite at the apple in interpreting this contract and that arbitrator found that these were lifetime benefits engaging in contract analysis not in agreement and the two thousand and one closing agreement make clear that the benefits are lifetime they are bound by that they don't get a second chance to go back to the district court and see my time's up th by its terms the plant closing agreement applies only to the union not to the retirees those are my words but the words of the union in the prior brief at the briefing of the arbitration part of this case they've  that that in fact the plant was able to apply to the union and not to the retiree's that's not something i made up from we've cited a number of instances where they said not only that but some other take is on pages nine in ten of our reply i understanding the rim of the argument that they were making what what i'm struggling with is the fact that it is an agreement that references payments to retirees for retiring health care and under your previous argument to me the you suggested that the nine hundred ninety eight agreement was in fact formally terminated and that it was terminated by the two thousand and one agreement that was the methodology and if that's the methodology and that two thousand and one agreement specified as if there will be pain minutes to retirees for retiree health care and does not include a duration health care from the release which is different and the release is releasing the one thousand nine hundred eight duration and other provisions of the contract and saying it is terminated so you have earlier thing and the duration clause ally out in the one nine hundred ninety eight agreement you have terminated the head agreement mean that's what you said earlier and now what terminates it is paragraph two of the two two thousand and one a going that excepted from the at arsenal two programs the program well no more than two programs because they're short term disability and life that provides for payments to retirees for retiring health care and the question before the court is is there clarity on the intention of the parties as to whether a bat prov ambiguity and then it throws us into extreme togetherness which you say you went on they say they went on and that's the call to be married let me enter two is not so you would have to question before one of the related somebody answer it in the gallup case  found that the answer has to be in clear and expressive language adopting the language from discourse on bug spray decision so there is no clear in the biggest i think tackett three is the governing  explained by your opposing counsel mowen may not apply because what we have here is what you and i have discussed is the continuation of a program and agreement to provide retiree health care so it's contractually dismiss the let's go back in to supplement each one which has disclaimer language in it that says that the company can change these benefits at any time and your problem is that a supplement age is the governing agreement supplement h c a is it twenty one twenty nine in the event that there is a conflict between the provisions of the program h one and the provisions of this agreement which the provisions of this agreement shall supersede and then it proceeds to list company options and administrations and times say as that change is shall be may shall not be exercised except by mutual agreement between the company and the union the way to harmonize those protuberance asians which is what there was a contract construction say is i think the way the parties actually did which is that once the contract was expired whatever limitation it wasn't each one was gone and the company could make changes pursuant to supplement the h one disclaimer language and the record here shows they did in fact do that they made a number of changes starting i believe in one thousand or so in two thousand and seven they changed providers they changed networks they changed terms they changed a lot of things and you didn't of all the contract was terminated so that terminates the contract itself including whatever limitation i mean of that including everything and so if in fact we're going to bring into play to play the retiree benefits they're still subject to the provisions of the contract that apply to the retir benefits which would include the durational clause that relates to supplement each one in supplement age but our views of the contract terminated that terminate everything what the release language simply does is release the language with respect to retiree benefits them selves it doesn't relieve it of determination provision nor does it say it's going to be continued for life the word simply continued there goes into it particular when you throw in the disclaimer language it's in there as well you can't simply divorce