good afternoon your honour's minute please the court bobbie burchfield for america tour and the appellant's i would like to reserve five minutes rebuttal since this court decided the case initially in two thousand and eight under the yard man principles unanimous united states supreme court has repudiated those standards in the us in the tack it decision the contract language here construed as required by tackett and by this court's decision in gallo precludes vesting as a matter of law and mandates reversal and entry of judgment for palance the gallow decision governs this case for at least four reasons first as in gallo there is no language that indicates the benefits are vested in gallo that was the first and foremost reason that the court rejected vested second as in gallo because of these benefits are not excluded from the durational clause the benefits are subject to that clause and therefore not vested third as in gallo the parties here specifically wrote and this is at appendix two eight six zero specifically wrote that pension benefits are quote payable under the plan for the lifetime of a retiree or separated employee the agreements contain no comparable life time language for retiree health benefits and that was another decisive factor in gallo finally as in gallo the benefits were subject to change in later agreements the nine hundred ninety seven insurance plan a moved both future and existing retirees into a pro for provider organization p p o a managed care plan the two thousand insurance document and this is at appendix two nine six three repeated that agreement quote effective nine one ninety eight the indemnity plan is replaced with a p p o plan set down in the u alton decision retirees who have vested benefits receive those benefits under the plan under which they retire so if the if the company and the union agree to change those benefits down the road in another agreement as happened here that's inconsistent with the notion of besting in the to this courts to resources see an age decisions and those decisions are at five seventy four f third three fifteen get your it me and came up with the presumption and basically said we're not going to look at the terms of the contract we're going to win gauge in the presumption and tack it said that's not right you look at the contract so why isn't this and if and we know from contract law that if something's ambiguous you can look at extrinsic evidence so why shouldn't this just all just like unpack it go back to the district court to re evaluate the case without the yardman presumption two reasons your honor number one in tack it there had been a bench trial with the receipt of evidence and with the findings of fact which were subject to a clearly erroneous standard to tack it remand pointed out that those findings of fact were made in the shadow of your demand it was difficult to tell what what weight to give them in lot of that secondly the more recent decision in gallo was exactly like this case it came up on a summary judgment on it as a summary judgment case and the court looked at the terms of the contract given the canons of construction set forth in tack it and determined that the contract was not on and was an unimpeded ok this contract first of all it says and payable thereafter which you don't have and then it also has a provision that explicitly links it lease for survivors explicitly says i think that the survivors get this health care benefit for as long as they get their survivor benefits may are may i respond to both of those your honor this is the language used here is shall be continued there after the supreme court addressed material identical language and tack it in addressing the policy the policy versus power probable pressed steel case say that ten times quickly which used language will continue to provide and the court held that that language did not create vesting gallow addressed similar language continued language in it said that it guarantees benefits until some point in the future but it doesn't tell you what point that is you get that point from the duration clause asked for the linkage between asked for the linkage between retiree between spouse will benefits and retiree health care benefits your honor let me take you to the contract this is this is at appendix receiving are eligible to receive a survivor benefit but how much does the company paid that's determined by article one section three b which is on page twenty nine twenty want and that is in section article one section three b seven two seven one i'm sorry it says the company shall make monthly contributions for the following months health care coverage on behalf of  surviving spouse has to find in article three section six b one two three and four but neither of those clauses has a duration in it and as gallo instructs if there is no duration clause the general duration clause applies and that's the three years here the contract terminated in two thousand and three what is the significance of that  of exhibit c winces when either retired or your spouse reaches eighty any premium amount payable by both is frozen i mean that obviously has to go beyond the three year contract your honor i don't think so because there are retirees turning eighty in this in this class all the time some of them turned eighty during the during the duration of the two thousand contract and for those retirees who get the benefits for whom like the others were subject to that duration clause their benefits were frozen when they got to eighty during the term of that contract there's nothing that there's nothing in that in that specification of what their benefits are at a particular age that says they're going to get the benefits for ever thereafter that's not in this that's not in this agreement well let me ask you this i assume there's a lot of extremism god and sure the retiree's a lifetime benefits now why isn't marriage or bound by well your honor first of all there's a there's an integration clause in these in these collective bargaining agreements that says that they constitute the they supersede all prior written and oral agreements and that the and that the contour the contrast constitute the sole agreement between the parties second both tackett and gallo have emphasized that you only turn of the extrinsic evidence if after looking at the language of the contract and supreme court specifically addressed that language in the in the tackett decision it addressed policy versus powell pressed steel which used material identical language to that shall be continued and it it  ruled that that did not create vesting that was the ruling the supreme court then the gallo court said the gallo court said that that language continued to some point in the future but did not say what that point is in order to determine that point in the future you have to look to the general duration clause but there's a difference between saying there's an ambiguity in saying that there's unequivocal this there i mean tactic did not enter judgment as a matter of law for the company that's correct your honor it did not and i i'm not really in a position to explain why the supreme court remanded it close it because it's a contract case and there is no special there are no special rules anymore you don't say if you have this clause you automatically or it vested or if you have that cause you're automatically vested it's like any other contract pays and your honor the say it's on it's on point with the gallo case which came up in the same procedural posture is this case which involved a contract that used many of the same words and which the court found the contract was unambiguous and and supported a ruling as a matter of law that there was no and enter judgment in favor of the of the employer which is what merit or use here thank you please the court steward israel on behalf of the plaintiffs pardon me i've got a sore throat hope i won't be sniffing into the microphone like in the debates but i will struggle with it the first thing i would like to do is is correct mr burchfield about the caps the two thousand collective bargaining agreement does indeed contain a negotiated for example that says that those who retire after october two thousand and one specifically in the example in two thousand and three the last year of the last contract are unlikely to be affected by big caps blit of  future increases for seven years that this fifty five year old two thousand and three retiree will be have his cap reduced in when he turns sixty five and becomes medicare eligible which is ten years after the two thousand and three contract expires and that his cap will be frozen when he turns eighty which is twenty five years later in two thousand and twenty eight that  not a that is a negotiated agreement between the parties and it get it provides a specific example of how the caps work and that alone demonstrates what tack it calls the parties intentions that benefits anne past expiration of the agreement that's the last agreement the last plant which continued the one nine hundred sixty eight language and then punctuated it with caps that extend  past two thousand and twenty or anything like that gallo no i my view is that there is no reason for the court to alter the result in this court below or extreme in the district court which route to extend if we have to we have to alter our reasoning well i i submit that attack it does not change anything that you can remove tackett you can certainly say that there are no longer is a an inference as the supreme court held in you and you perhaps you must say that but beyond that nothing was overlooked or mis apprehended by the court the record is clear the record is overwhelming and in almost undisputed in every material respect it tackett says there will be no presumptions for against vesting attack it says the ordinary principles of contract law prevail tackett says ultimately the parties intentions prevail we're dealing with language here first negotiated in one thousand nine hundred sixty eight tackett also says that federal labor policy must be considered and federal labor policy at least since the steelworkers trilogy in one nine hundred sixty recognizes the collective bargaining agreements in tail is that a susman of them entails a broader look at the context tackett says that as long as there's record evidence that the court can consider context course of performance course of dealing in that sort of thing and that's not dependent on ambiguity that is in the first instance that is what gallo vs mon calls taking a look in the first instance at the four corners of the contract and what we have here in the four corners of the contract assessment of the contract itself may consider industry practice and course of conduct supported by record evidence even when there is no ambiguity tackett says  its sights treatise that say this and tack it three this court's post supreme court decision says the same thing how would how would that be evident within the four corners within the four corners is a section that isn't titled continuance of health care when does it start upon retirement or upon terminations at age sixty five or older are you talking about se yes that was negotiated in one thousand nine hundred sixty eight it was considered it was continued in twelve collective bargaining agreements after that until the last contract expired in two thousand and three and that language gives you the start date upon retirement or terminations at sixty five why sixty five because in one thousand nine hundred eighty six medicare became effective and retiring insurance became cheap and that is the context that this collective bargaining agreement can  be assessed in light of the history and it's not just the history of this company it is the history of this company but it's also the history of other auto supplier companies as reflected in decisions of this court and other courts cited in our brief  and so it begins upon retirement or terminations at sixty five and it shall be continued thereafter and i say that is durational language and to the extent that that is if there is tension between that and the general duration clause the then you go beyond the four corners of the contract and the last time we were in this court arguing this case it was the position of the company that there nobody's arguing that pension is not a lifetime benefit but the punctuation in the last contract and several contracts earlier that were these caps where the parties are negotiating to save the company so money by splitting future increases for post two thousand and one retirees between the retiree in the company and they but they monitor it they tell the retiree it's going to be based on a benchmark and year end two thousand and three retiree you're not going to hit that benchmark we think for seven years what your position on his argument that that if it was vested they never could have changed it there are we acknowledged as we acknowledge in the district court in this court previously that there were moderate changes which not material changes there were structural changes he agreed to him a modest change of modest increase in the prescription drugs and he was mistaken and he was later advised by the lawyers well after this case was was filed when they threaten to cancel the insurance for twenty nine hundred retirees that he shouldn't have done that but but back to what tack it's the parties intentions control and it's not angels dancing on the head of the pin that's not just deciding the parties intention what is it what is the prism is what the party said continuance with a start date shall be continued thereafter with no end date in the context of a collective bargaining agreement that sets limits durational limits on other things but at the very least this is ambiguous get around dalam first of all i would say that gallo is immaterial to this gallo says what i'm saying gallo says the tac it is the law gallo says that if you look at the contract language there are no magic words that the supreme court says the parties intentions control that with the record evidence you can you can look beyond the and how is this case different from gallo the language is different the history is different what well look at the history the gallo declined to look at the history big because it said the contract unambiguous lee did carrying demonstrating the party's intentions that that in two thousand and two thousand when they negotiated a contract expiring at the last plant in two thousand and three that there were going to be benchmarks reached seven ten and twenty five years into the future and that for retirees who retired in october two thousand and one that retiree that retirees responsibility for contributions toward  opening instead of the camera i'm sorry now you're deciding gallow has no effect on this case and i'm asking well what about that language from yes i i i believe that gallo has its own flaws as are pointed out by the dissent i submit that at the very least continuance shall be continued thereafter and camps creates a lack of clarity and whether you call it extremes of evidence or course of conduct or course of dealing or federal rules of and deed reflects their intentions and i believe if the court will go back to tack and in particular the summary of tech in tech at three the court will see that these are ordinary contract principles th dates back to the nineteenth century and early cases in the supreme court in the twentieth century it's as you look at what parties do under collective bargaining agreements and contracts before they have a fight about him and that tells you what they  agreement and the insurance agreement and each of those agreements the pension and the insurance has a three year duration clause and of course virtually every collective bargaining agreement that ever was that promised post in football terms and he wants to put his magnifying glass on each word and parse each word but what we have here is a record that by every measure under ordinary contract principles says shell begin at the time of retirement or terminations at sixty five and shall continue there after if that is ambiguous if that is not enough if that is intention with these general duration clauses then i  submit it's incumbent upon the court to see what the parties have said and did what the party said and did over five decades and what they said and did what the company said unilaterally repeatedly we have over one hundred what we invoke is the carbon fuel principle if you know that everybody thinks that these words mean a life time in the company says they mean life time in the company keeps renewing the same language over and over and over again the argument that you need to read the contract in the context of your demand because that's where the parties were operating i'm what i'm saying is yard man has verses urban meritorious i'm sorry golden verses kelsey his case which held that identical terms without regard to yard man promised lifetime health care and the ordinary principles of contract language don't permit this after the fact presume a contract is a contract governed by the parties contemporaneous intentions later changes in the long are immaterial promise or if i may your honor for quick points the first is asked to the self denominated hypothetical example of what will happen to a retiree if the agreement is continued and if the benefit caps are continued in place gallo specifically stated about that about such a situation quote that a company to its credit hopes to subsidize health care benefits for its retirees for as long as possible does not mean it has promised to do so that's at page two seventy four of of eight thirteen if for second point as judge gilman points out there is the lifetime language relating to pensions is not in the collective bargaining agreement it is in the pension plan the pension the collective bargaining agreement sets the funding rate for pensions here is it doesn't most collective bargaining rights bargaining agreements but the guarantee of lifetime benefits occurs in the pension plan and i referred to that to you in my opening argument it says lifetime there's no corresponding language here for health benefits third point as mr israel concedes the employe third page three twenty five and reese two six ninety four f third at six eighty four indicate that the move to managed care is in fact a material change because it restricts the options available to the retirees and therefore significantly alters their coverage so that was a big deal for point on carbon fuel carbon fuel actually undermines to defend the the argument the plaintiffs are trying to make on the left in the last paragraph of justice douglas's decision in carbon fuel he points out that the lower court's decision was at odds with two other circuit court decisions that had interpreted the contractual language in a different way here this circuit which he has continued which he contends should govern this contract had the yard man rule which was followed by no other circuit these contracts cover plants and at least one other circuit the seventh circuit so for him to say that carbon fuel helps him here it doesn't because there's there's there's contradictory rulings on on the issue of vesting a benefit in the seventh circuit that did not agree with the rulings that he's relying on from the sixth circuit so where you end up with on carbon fuel is exactly as judge white noted gallo rejected that argument on the basis that you have to apply the law in effect at the time this panel makes its decision and that law is the tack it law that law is the is to look at the at the wording of the contract reviewed under ordinary contract principles as set forth in tackett and to conclude the summary plan description actually undermines their position at appendix page three zero eight three it says all coverage as described in this book will automatically end upon discontinue much of the bargaining agreement on september thirty two thousand and three it also goes on to say to reserve the right for the company to terminate at any time the prescription charge cards that say for life on the front of them flipped them over at appendix page thirty one eighty three it says that the prescription cart prescription coverage is made available under the national agreement with the u a w which indicate which as we've indicated does not provide vested coverage the letters that he refers to regarding meritorious assumption of coverage from from iraq well all that does is say that meritorious going to cup or rock well left off it doesn't expand the coverage it doesn't grant new coverage it just says that meritorious going to live up to the contractual obligations already there the extrinsic evidence i don't have time to address but it's also object to the it's all subject to the integration clause and we contend and we contend it's subject to the rule that you do not turn you not turn to that evidence unless the contract is ambiguous and this contract is not