## F I L E D United States Court of Appeals Tenth Circuit 

### SEP 18 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

JAKE AGUILAR; CHARLES J. AVILA; FRANK R. BARRON; ALFONSO CASAREZ; FRANK CORDOVA; EUGENE G. DURAN; RICHARD DURAN; ALEX GARCIA; EDDIE W. GOMEZ; JOE L. GOMEZ; ELOY GUTIERREZ; THOMAS A. HAY; MIGUEL L. HERRERA; HARRY S. MESTAS; JOSEPH G. MONDRAGON; GEORGE MONTOYA; LEE MONTOYA; SAM MONTOYA; REUBEN J. NUNEZ; PHIL G. PADILLA; MARTIN QUINTERO; FILBERT J. ROYBAL, JR.; SALVADOR SANCHEZ; ARTHUR L. SANDOVAL; EDWARD SHANNON; LARRY D. SHAW; JACK SCHUSTER; STEPHEN R. SMITH; JOHN A. TOKAR; JOE N. TRUJILLO, JR.; PETE J. VALDEZ; PHILADELPHIO S. VELARDE; ERNEST E. VENSOR; JOE L. VIGIL; LEROY G. VIGIL; ROBERT F. WHITE; INTERNATIONAL UNION UNITED MINE WORKERS OF AMERICA; JOSEPH L. DURAN; MAX CASIAS; JAMES SUAZO; HENRY J. CHAVEZ; ROBERT DOMINGUEZ,

Plaintiffs - Appellees, No. 01-1418 (D.C. No. 98-N-885) (D. Colorado)

v. BASIN RESOURCES, INC.,

Defendant - Appellant.* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. ORDER AND JUDGMENT *

Before LUCERO , HOLLOWAY , and MURPHY , Circuit Judges.

I. INTRODUCTION Appellees are the International Union, United Mine Workers of America (“the Union”) and a group of retired miners. They brought an action against appellant Basin Resources, Inc. (“Basin” or “BRI”), the retirees’ former employer, to compel Basin to pay the retirees’ heal th benefits for the length of their lives. The district court granted summary ju dgment to the Union and the retirees. We have jurisdiction under 28 U.S.C. § 1291 and reverse and remand

. II. FACTS Basin bought a coal mine in Las Animas County, Colo rado in 1991. At that time the miners’ wages and benefits were controlledby the 1988 National Bituminous Coal Wage Agreement (“NBCWA”). The 1988 NBCWA was the latest in a series of national collective bargainin g agreements between the Union and the Bituminous Coal Operators’ Association, a n ational association of coal mine operators. The 1988 NBCWA expired in February1993, and the Union1 Article XVIII provides: “BRI agrees to provide the level of health

insurance benefits set forth in the Employer Benefi t Plan provided in the 1988 NBCWA for the duration of this Agreement, both for its active employees and retirees . . . . The health and dental provisions are set forth in Appendix C to this Agreement.”

2 Appendix C states that the “general purpose of the [benefit] plans referred to in this Appendix shall be to provide health care for working and retired miners . . . and their dependents; . . . and financial sup port for surviving spouses and surviving dependents.” Section (b)(3)(i) of Appendix C provides: BRI shall establish and maintain an Employee benefi t plan, . . . to provide health . . . for its Employees covered by t he Wage Agreement as well as pensioners . . . . The benefits provide d by BRI to its (continued...) -3- began negotiating the 1993 NBCWA with the Operators ’ Association. Basin, however, informed the Union that it wished to negot iate a collective bargaining agreement entirely separate from the 1993 NBCWA to cover only its operations in Las Animas County. It is undisputed that the 1993 wage agreement (“the agreement” or “the 1993 agreement”) emerging from these negotiations borrowed much of its language from both the 1988 and 1993 NB CWAs. In addition, the parties agree that they used the 1988 NBCWA as a st arting point in drafting the 1993 agreement between Basin and the Union. The agreement was finalized in July 1993. Article XVIII establishes miners’ and retirees’ rights to pension and health benefits in general terms. 1 Appendix C to the agreement, finished in January 19 95, provides more details about the benefits. 22 (...continued)

eligible Participants pursuant to such plans shall be guaranteed during the term of the Wage Agreement by BRI at lev els set forth in such plans. Section (g) provides that “[Basin] hereby agrees to fully guarantee the health benefits provided under its own Employer Plan . . . during the term of ‘this’ Wage Agreement.” Appendix C also contains a “GENERAL DESCRIPTION OF THE HEALTH AND RETIREMENT BENEFITS.” The general descr iption provides, in part, “[t]he benefits and benefit levels provide d by [Basin] under its Benefit Plan are established for the term of ‘this’ Wage Ag reement only, and may be jointly amended or modified in any manner at any ti me after the expiration or termination of the Wage Agreement.” The general description also provides that pensione rs “will be entitled to retain a Health Services card for life . Upon his death, his widow will retain a Health Services card until her death or remarriage. ” (emphasis added).

3 The Coal Act provides that signatories to an NBCWAand their successors, whether or not in the coal business, ar e responsible for paying the lifetime health benefits of their own employees eli gible for retirement benefits as of February 1, 1993 and who actually retired on or before September 30, 1994. See 26 U.S.C. § 9711. All of the individual appellees in this case retired after September 30, 1994 and therefore are not covered bythe Coal Act. -4- Basin closed the mine in December 1995. In Decembe r 1997, the 1993 agreement expired. At that time, Basin terminated the health benefits of retirees who were not covered by the Coal Industry Retiree H ealth Benefits Act of 1992, 26 U.S.C. §§ 9701-9722 [hereinafter the Coal Act], including those of the individual appellees. 3 Appellees filed suit in federal district court in C olorado, asserting that Basin breached the 1993 collective bargaining agree ment when it terminated retiree health benefits. They contended that Basin promised in the 1993-5-

agreement to provide lifetime health care benefits to its retirees. They sought an injunction requiring Basin to provide health benefi ts and damages for health care costs incurred since termination of the miners’ ben efits. In a thorough opinion, the district court granted summary judgment to the plaintiffs-appellees. It reasoned that the agreement was ambiguous, noting that in some parts the agreement provided that retirees would receive bene fits only during the term of the agreement, while in others it provided that ret irees would receive benefits for life. The district court then looked to extrinsic evidence to determine the parties’ intent. It considered the often-interpreted 1988 and 1993 NBCWAs and concluded that under those agreements, retirees wer e promised health benefits for life. The court concluded that because the 1993 ag reement borrowed much of its language from those agreements, the parties intende d to retain the promise of lifetime benefits. Rejecting Basin’s argument thatdifferences in language between the agreement and the 1988 and 1993 NBCWAs revealed the parties’ intent to discontinue lifetime benefits, the distri ct court entered judgment for appellees.
III. DISCUSSION
A. Standard of Review We review a grant of summary judgment de novo , employing the same standard used by the district court. See Bullington v. United Air Lines, Inc. , 186-6-

F.3d 1301, 1313 (10th Cir. 1999). Summary judgmentis proper when the “pleadings, depositions, answers to interrogatories , and admissions on file, together with the affidavits, if any, show that the re is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). To determine whetheran issue is genuine, this court employs a standard that mirrors the standard govern ing motions for judgment as a matter of law under Federal Rule of Civil Procedure 50. See Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250-51 (1986). An issue is genuine , and summary judgment should be denied, if the evidence is such that a reasonable jury could find in favor of the nonmovant. See Simms v. Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs. , 165 F.3d 1321, 1326 (10th Cir. 1999). More than a scintilla of evidence is required to defeat a motion for summary judgment. See Lawmaster v. Ward , 125 F.3d 1341, 1347 (10th Cir. 1997). The nonmov ant must present evidence sufficient to sustain a jury verdict in its favor, i.e. , enough evidence that “reasonable minds could differ as to [its] import.” Liberty Lobby , 477 U.S. at 250-51. “[W]e view the factual record and inferences therefrom in the light most favorable to the nonmoving party.” Bullington , 186 F.3d at 1313.
B. The Parties’ Intent We agree with the district court that the 1993 coll ective bargaining agreement is ambiguous on its face. While numerous references are made to4 The germ of this ambiguity is the parties’ use of the 1988 NBCWA as a

starting point for drafting of the 1993 collective bargaining agreement. The NBCWAs have often been interpreted to absolve indiv idual employers of the obligation to provide lifetime benefits. See, e.g., Dist. 29, United Mine Workers v. Royal Coal Co. , 768 F.2d 588, 592 (4th Cir. 1985) [hereinafter Royal I ]; United Mine Workers Int’l Union v. Nobel , 720 F. Supp. 1169, 1179-80 (W.D. Pa. 1989), aff’d sub nom. Bd. of Trs. of United Mine Workers 1974 Benefit Pla n & Trust v. Int’l Union, United Mine Workers , 902 F.2d 1558 (3d Cir. 1990) (unpublished table decision). At the same time, the agreements have been interpreted to guarantee lifetime health benefits to retired miner s. See Dist. 29, United Mine Workers of Am. v. United Mine Workers 1974 Benefit Plan & Trust , 826 F.2d 280, 282-83 (4th Cir. 1987) [hereinafter Royal II ]; Nobel , 720 F. Supp. at 1178-79. The federal courts have resolved this ambiguity by concluding that the responsibility for paying lifetime benefits devolve d to the 1974 Benefit Plan, a fund created by the 1974 NBCWA and contributed to b y all members of the Bituminous Coal Operators’ Association. See Royal II, 826 F.2d at 281, 283; Nobel , 720 F. Supp. at 1179-80; see generally E. Enters. v. Apfel , 524 U.S. 498, 509-10 (1998) (plurality opinion) (describing creat ion of 1974 Benefit Plan). -7- health benefits “for life” or “until death,” the ag reement also provides that Basin will guarantee health benefits “during the term of ‘this’ Wage Agreement” and that “the benefits and benefit levels provided by [ Basin] . . . are established for the term of ‘this’ Wage Agreement only.” 4 It was thus proper to consult extrinsic evidence to discern the parties’ intent. Cf. Volkman v. United Transp. Union , 73 F.3d 1047, 1050 (10th Cir. 1996). Basin argues that the extrinsic evidence submitted to the district court demonstrates that agenuine issue of fact exists regarding whether the parties intended to obligate Basin to pay retirees’ health benefits for life. We agree.5 “The ‘common law of the shop’ is peculiar to labor -management

agreements, but it functions as a source of meaning for the parties in a manner similar to that of ‘trade custom and usage’ in the commercial contract context.” NCR Corp., E & M – Wichita v. Int’l Ass’n of Machin ists & Aerospace Workers, Dist. Lodge No. 70 , 906 F.2d 1499, 1501 n.3 (10th Cir. 1990). -8- Among the types of extrinsic evidence a district co urt may consult in determining the meaning of an ambiguous collective bargaining agreement are the structure of the agreement, the past practices of t he parties, the “common law of the shop,” 5 the history of negotiations between the parties, a nd the parties’ conduct reflecting their understanding of the agreement. See Webb v. ABF Freight Sys., Inc. , 155 F.3d 1230, 1243 (10th Cir. 1998); Teamsters Indus. Employees Welfare Fund v. Rolls-Royce Motor Cars, Inc. , 989 F.2d 132, 135 (3d Cir. 1993). As the parties knew, the coal industryhas long recognized the right of retired miners to lifetime health benefits. See generally United Mine Workers Int’l Union v. Nobel , 720 F. Supp. 1169, 1173-75 (W.D. Pa. 1989), aff’d sub nom. Bd. of Trs. of United Mine Workers 1974 Benefit Pla n & Trust v. Int’l Union, United Mine Workers , 902 F.2d 1558 (3d Cir. 1990) (unpublished table d ecision); United Mine Workers Int’l Union v. Bethenergy Mines, Inc. , No. Civ. A. 2:99- 0738, 2001 WL 737558, at *3 (S.D.W. Va. Mar. 19, 20 01). On the basis of the promises in the NBCWAs to provide retirees and thei r spouses with health services cards “for life” and “until death,” the NB CWAs uniformly have been interpreted to provide retired miners with lifetime health benefits. See Unity Real6 The General Description of the Health and Retireme nt Benefits contained

in Appendix C to the 1993 agreement provides that “ [t]he parties expressly agree that the language references to ‘for life’ and ‘unt il death’ that are retained in this General Description are intended to mean that [Basi n] will provide only the benefits of its own eligible retirees.” (emphasis a dded). -9- Estate Co. v. Hudson , 178 F.3d 649, 665-67 (3d Cir. 1999); Royal II , 826 F.2d at 282-83; Nobel , 720 F.Supp. at 1178. That the 1993 agreement exp licitly “retains” 6 the references to “for life” and “until death” fro m the NBCWAs is strong evidence that the parties intended a similar meaning. See Carbon Fuel Co. v. United Mine Workers , 444 U.S. 212, 222 (1979) (observing failure to ch ange contract language previously interpreted by courts “strongly suggests the parties incorporated the courts’ interpretation” of the lan guage). As the district court stated: “If Basin wanted to avoid an obligation to pay its retirees health benefits for their lives, then negotiating the inclusion [of ] language which explicitly carries forward earlier promises of lifetime benefi ts was not the way to do it.” Dist. Ct. Op. at 21-22. There is conflicting evidence, however. First, the parties also retained language from the 1988 NBCWA that has been interpre ted to absolve individual employers of the responsibility of paying lifetime benefits. In particular, the language in section (b)(3)(i) of Appendix C provide s “[t]he benefits provided by [Basin] to [retirees] shall be guaranteed during the term of the Wage Agr eement by [Basin] at levels set forth in [the Employee Ben efit Plan].” (emphasis added).7The district court noted that the agreement also a dopted language from the

1993 NBCWA which made clear that employers must sho ulder the burden of paying for retiree lifetime health benefits, thereb y eviscerating the reasoning in cases such as Royal I and Nobel . Until passage of the Coal Act in 1992, the 1974 Benefit Plan was responsible for paying lifetime be nefits to retired miners. By closing the 1974 Benefit Plan to new enrollees, the Coal Act created a situation in which it was unclear who would pay the lifetime ben efits of new retirees. See 26 U.S.C. §§ 9702(a)(2), 9703(f) (merging 1974 BenefitPlan into United Mine Workers of America Combined Benefit Fund and limiti ng participation in Combined Benefit Fund to those retirees eligible to receive benefits from the 1974 Benefit Plan as of July 20, 1992). The 1993 N BCWA was drafted to make clear that, notwithstanding article XX, section (c) (3)(i) of the NBCWAs, the provision upon which Royal I and Nobel relied, individual employers bore the burden of paying lifetime benefits to miners. In t he 1993 NBCWA, the general description provides, in part, “The parties express ly agree that the language references to ‘for life’ and ‘until death’ that are retained in this General Description are intended to mean that each Employerwill provide, for life , only the benefits of its own eligible retirees . . . .” (emphasis added). The 1993 agreement between Basin and the Union is v ery different, however. It tracks the quoted language but omits the words “for life.” The district court concluded that the omission was insi gnificant. It reasoned that the purpose of the language quoted from the 1993 NBCWA was to make clear that employers only paid the benefits of its own retirin g employees. According to the district court, the language adopted in the 1993 Ba sin-Union agreement serves the (continued...) -10- This language is identical in all relevant respects to article XX, section (c)(3)(i) of the 1978, 1981, 1984, and 1988 NBCWAs. Interpre ting section (c)(3)(i), numerous courts have concluded that individual empl oyers had no responsibility to pay retiree health benefits beyond the term of a wage agreement. See Royal I , 768 F.2d at 592; see generally Nobel , 720 F. Supp. at 1179-80. Again, that the parties retained previously interpreted language is evidence they intended to incorporate such interpretations. See Carbon Fuel , 444 U.S. at 222. 77 (...continued)

same function, even with the omission of “for life. ” We disagree with the district court’s premise. The purpose of the quoted languag e is not merely to specify that employers would pay the benefits of their retirees. Rather, the language obligates employers to pay the lifetime benefits of their retirees. The “for life” langua ge omitted from the Union-Basin agreement is the only language in the 1993 NBCWA that explicitly states as much. Without “forlife,” the borrowed language cannot be read to supplant the specific la nguage of section (b)(3)(i) of Appendix C that courts have interpreted as relievin g employers of the responsibility of paying lifetime health benefits. The Union provided evidence that the omission does not reflect the parties’ mutual intent in adopting the agreement, but ratherwas made by Basin without the Union’s knowledge. Determining the veracity of such a contention and the parties’ intent in omitting language is a fact-driv en inquiry. As such, it cannot be conducted at the summary judgment stage but must aw ait trial. -11- Second, the bargaining history indicates that the p arties may have agreed to discontinue lifetime benefits. As an initial step in negotiations, Basin submitted a proposal to the Union on April 27, 1993. Not only did Basin propose that miners who retired during the term of the collective barga ining agreement not receive lifetime health benefits, it proposed that retirees receive no health benefits. The Union responded on June 30, 1993. It rejected Basi n’s proposal and countered by proposing continuation of lifetime medical coverage for retiring employees. Thus, prior to face-to-face negotiations, the parti es had demonstrated a strong disagreement about the continuation of lifetime hea lth benefits for retirees, and Basin had made it clear that it wished to change ma ny of the benefits contained in the 1988 NBCWA.8 Neither party has objected to the use or admissibi lity of the bargaining

notes. We thus assume their admissibility for purp oses of summary judgment, but offer no opinion on their admissibility at trial. -12- The parties met in Denver on July 6 and 7, 1993 fornegotiations. The salient events took place on July 7. Around 2:30 p .m., the Union made a presentation summarizing its proposal. The notes o f the Union negotiator, Deeds, show that the Union again proposed lifetime medical coverage for retirees. 8 The notes of a company negotiator, Deeny, also reflect that the Union proposed lifetime medical coverage for retirees. Following the Union’s proposal, the negotiators too k a break until 7:20 p.m. Basin then responded to the Union’s proposal. The notes of Union negotiator Deeds reflect that Basin “agree[d]” to t he Union’s “medical” proposal. He stated in his notes that Basin acknowledged “Ret ired medical – life time benefits for people who retired while employed [/] operated by [Basin].” The company negotiators, however, did not expressly not e such an agreement. After the counterproposal and another break, Basin negoti ator Deeny wanted “clarification” on lifetime medical coverage. Spea king to Union negotiator Rosenblatt, Deeny said he “need[ed] clarification [ on] ‘lifetime’ retirees/agreement.” Deeds, the Union negotiator, relates the ensuing conversation as follows: Deeny: “Retiree health care – only for life of agreement . . . .”-13-

Rosenblatt: “Not mandatory subject [for negotiation] next cont ract. If we

go to next negotiations is it mandatory subject?” Deeny: “Yes, it will continue to be mandatory subject.” Deeny’s notes surrounding the conversation are: Deeny: “Need clarification ‘Lifetime’ Retirees / Agreemen t.” Rosenblatt: “Want it, but permissive. Would like lifetime com mitment.”

. . . . Deeny: “No lifetime health insurance to retirees, but agr ee next time to

make it mandatory [subject of bargaining].” Rosenblatt: “Not sure it’s legal –” Deeny: “We understand – agree to negotiate it as mandato ry b/c we

have [before] now not mandatory, some [unreadable]” The notes of the other company negotiator, Harriss, are substantially similar to Deeny’s: Deeny: “my mistake on Health – for retirees, it[’]s life of agreement” Rosenblatt: “it isn’t on the table – mandatory of future retir ees[];

contribution to future retirees[;] it becomes permi ssible only when they retire[;] on retirees maybe it is” Rosenblatt: (continued) “if it isn’t do we have an agreement t hat next time

it’s on[?]” Deeny: “people who retire during this agreement – their c overage is a

mandatory subject of bargaining” Rosenblatt’s notes similarly indicate that the comp any’s negotiators stated “retiree covered during term of agreement . . . continued co verage after term is mandatory-14-

subject of [bargaining].” An affidavit from Basin negotiator Harriss supports this interpretation. Harriss declared that

During [the] negotiations, Basin Resources, Inc. to ok the position that health care benefits would be provide d for its employees and retirees only during the term of the Collective Bargaining Agreement and anything beyond the termination of th e Collective Bargaining Agreement was to be subject to negotiati on.

. . . . At no time during the 1993 contract negotiations di d Basin Resources, Inc. agree to extend health benefits bey ond the term of the 1993 Collective Bargaining Agreement. The onlyconcession by the Company was to agree that the topic of providin g health benefits beyond the term of the Agreement would be subject t o mandatory bargaining should there be further negotiations aft er the expiration of the 1993 agreement. Viewing the bargaining notes and Harriss’ affidavitin the light most favorable to Basin, as we must, we conclude they co uld be interpreted as evidencing the parties’ intent to provide retirees with health benefits only during the term of the agreement and to take up the subjec t of continuation of benefits during subsequent negotiations. Such an agreement, while seemingly at odds with the “for life” and “until death” language of certai n portions of Appendix C, is entirely consistent with section (b)(3)(i) of the Appendix and the portion of the general description that provides “[t]he benefits and benefit levels provided by [Basin] under its Benefit Plan are established for the term of ‘this’ Wage Agreement only, and may be jointly amended or modif ied in any manner at any time after the expiration or termination of the Wag e Agreement.”-15-

Other interpretations of the bargaining notes are, of course, possible. The Union Negotiator, Deeds, posited that the parties w ere in fact discussing the level of lifetime benefits, not the existence. According to his interpretation, the parties agreed to lifetime benefits and merely agreed to ma ke the level of benefits subject to mandatory bargaining. This is a reasonable inte rpretation. It is not the only one, however, and we must draw all reasonable infer ences from the evidence in favor of the party against whom the district court granted summary judgment, Basin. See Bullington , 186 F.3d at 1313. In summary, while there is evidence suggesting the parties intended to provide lifetime health benefits to retiring miners , there is conflicting evidence in the form of bargaining notes, Harriss’ affidavit, and the retention of language from the NBCWAs which obligated employers to pay re tiree health benefits only during the term of the agreements. A reasonable ju ry could conclude that, based on this evidence, the parties intended to discontin ue lifetime health benefits. Summary judgment was therefore improper.-16-

IV. CONCLUSION The judgment of the district court is hereby REVERSED and the case is
REMANDED for further proceedings consistent with this opini on. ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge1 The district court looked at the following extrin sic evidence in reaching

its conclusion: (1) the fifty-year history of reti ree health benefits in the coal industry, (2) the historical background leading to enactment of the Coal Act, (3) industry practice regarding retiree health benefits , and (4) judicial interpretations of previous NBCWAs. No. 01-1418, Aguilar v. Basin Resources, Inc.

LUCERO, Circuit Judge, dissenting. Because I agree with the district court that the 19 93 Agreement negotiated between Basin and the Union grants the plaintiffs l ifetime health benefits, I respectfully dissent from the majority Order and Ju dgment. Whether a collective bargaining agreement provides vested health benefit s—benefits that survive the expiration of the agreement—is a matter of contract interpretation. Chiles v. Ceridian Corp. , 95 F.3d 1505, 1515 (10th Cir. 1996). “[W]here interpretation of a contract requires examination of extrinsic evidence to determine intent, and where more than one inference may be drawn therefrom, a q uestion of fact is presented.” United States v. Hess , 194 F.3d 1164, 1174 (10th Cir. 1999). It follows that when a court can glean only one inference from the contr act when viewed in conjunction with extrinsic evidence, there are no q uestions of material fact left for the trier and summary judgment is appropriate. I conclude that only one inference can be drawn from looking at the face of the 1993 Agreement in the context highlighted by the district court: 1 Basin and the Union intended lifetime-2-

health benefits for those mine workers who retired during the term of the 1993 Agreement. The majority correctly points out that promises fou nd in previous NBCWAs to provide retirees and their spouses with health s ervices cards “for life” and “until death” have consistently been interpreted to guarantee retirees’ lifetime benefits. See Unity Real Estate Co. v. Hudson , 178 F.3d 649, 665–67 (3d Cir. 1999); Dist. 29, United Mine Workers v. United Mine Worke rs 1974 Benefit Plan
& Trust , 826 F.2d 280, 282–83 (4th Cir. 1987) ; United Mine Workers Int’l Union v. Nobel , 720 F. Supp. 1169, 1179–80 (W.D. Pa. 1989). In the present case, the parties used the 1988 NBCWA as the starting point f or their negotiations, and retained the “for life” and “until death” language from the 1988 NBCWA. Retaining these lifetime references strongly eviden ces the parties’ intent to provide lifetime benefits. See Carbon Fuel Co. v. United Mine Workers , 444 U.S. 212, 222 (1979) (explaining that the retention of c ontract language already interpreted by courts “strongly suggests the partie s incorporated the courts’ interpretation” of the language). Further support for the conclusion that the parties intended the provision of lifetime benefits for retirees is the fact that the “for life” and “until death” language is found in asection in Appendix C specifically describing retiree benefits. ( See 2 Appellant’s App. at 499 (“[A] pensioner will be entitled to retain a Health Servi ces Card for life . . . . Upon his-3-

death, his widow will retain a Health Services Carduntil her death or remarriage.”).) Concluding that there is also evidence—found in the language of the agreement and in the parties’ bargaining notes—thatthe parties intended to limit health benefits to the term of the 1993 Agreement, the majority reverses the district court’s grant of summary judgment to the U nion. The majority suggests three reasons why the 1993 Agreement can be interpr eted as providing retiree health benefits only for the duration of the Agreem ent: (1) the “during the term of the Wage Agreement” language in Appendix C indic ates such intent; (2) language in Appendix C retained from previous NBCWA s has been construed by courts to relieve an employer of the obligation to pay lifetime retiree benefits; and (3) Basin’s bargaining notes reflect an intent to p rovide retirees with benefits only during the term of the agreement and to make lifeti me benefits the subject of mandatory negotiation upon the termination of the a greement. I disagree. First, section (b)(3)(i) of Appendix C of the 1993 Agreement includes a socalled “guarantee clause” which states that “the be nefits provided by [Basin] to [retirees] shall be guaranteed during the term of t he Wage Agreement by [Basin] at levels set forth in [the Employee Benefit Plan].” ( 2 id. at 495 (emphasis added).) I disagree with the proposition that this language is inconsistent with an interpretation of the 1993 Agreement as providing l ifetime benefits. Language-4-

cited above limiting benefits to the term of the agreement relates to the level of benefits provided in the agreement and makes the level of benefits subject to future modification by the parties. Appendix C exp licitly states that benefits can be “jointly amended or modified in any manner at any time after the expiration or termination of the Wage Agreement.” (2 id. at 499 (“General Description of the Health and Retirement Benefits”).) This modificati on provision would be superfluous if there were no benefits that survivedthe agreement in the first place. Therefore, the only reasonable interpretati on of the contract is that it provides for lifetime benefits for retirees with benefit levels subject to future modification by the parties. This conclusion is buttressed by the fact that NBCWAs from 1978 to 1993 provided lifetime benefits for eligible retirees an d also contained substantially identical “for the term of this agreement” language in their respective “guarantee clauses.” History explains that previous NBCWAs in cluded these “guarantee clauses” not to express the parties’ intent to disc ontinue lifetime benefits but rather to protect mine workers from a reduction in benefit level during the term of the agreement. See Eastern Enters. v. Apfel , 524 U.S. 498, 510 (1998) (“To ensure the Benefit Plans’ solvency, the 1978 NBCWA included a ‘guarantee’ clause obligating signatories to make sufficient contributions to maintain benefits during that agreement . . . .” (emphasis added)); Hudson , 178 F.3d at 654 (“The-5-

‘guarantee’ clause obligated signatories to make su fficient contributions to maintain benefits at the negotiated levels during the period of the agreement, whereas before there had been no promise to maintai n any particular benefit level.” (emphasis added)). How unreasonable it wou ld be to now interpret this language as divesting retirees from lifetime benefi ts. Second, the Order and Judgment notes that the parti es retained language that is substantially identical to the language in article XX, § (c)(3)(i) of the 1978, 1981, 1984, and 1988 NBCWAs—which has been interpre ted as relieving individual employers from the responsibility of pay ing its retirees health benefits beyond the expiration of the relevant NBCWA. See Dist. 29, United Mine Workers v. Royal Coal Co. , 768 F.2d 588, 592 (4th Cir. 1985); Nobel , 720 F. Supp. at 1179–80. Thus, the majority reasons, because the 1993 Agreement between Basin and the Union retains similar duratio nal language, there is evidence that the parties intended to incorporate s uch interpretations. I disagree with the majority’s conclusion that the parties’ re tention of this language might evidence their intent to relieve Basin from the bur den of paying its retirees lifetime health benefits. It is true that previous NBCWAs have been interpret ed to relieve individual employers of the obligation to pay lifetime benefit s to retirees who were guaranteed lifetime benefits in the same agreement. See Royal , 758 F.2d at 592;-6-

Nobel , 720 F. Supp. at 1179–80. As the majority points out, federal courts reconciled this apparent ambiguity by concluding th at the 1974 Benefit Plan, a fund created by the 1974 NBCWA and contributed to b y members of the Bituminous Coal Operators’ Association, bore the re sponsibility for paying retiree lifetime benefits. Courts never swayed from the co nclusion that the relevant NBCWAs guaranteed lifetime benefits; the only question was who would pay the cost. Dealing with this issue, courts determined that the 1974 Benefit Plan would bear the cost. See Nobel , 720 F. Supp. at 1179–80. Congress enacted the Coal Act in 1992 in response t o the looming insolvency of the Benefit Plan and growing concern by coal miners that their expectations of lifetime benefits were in jeopardy. Pursuant to the Coal Act, any NBCWA signatory was responsible for paying for the lifetime health benefits of its own retirees who retired prior to September 30, 1994. 26 U.S.C. §§ 9711, 9712. However, it became unclear who would pay th e lifetime benefits of retirees who did not fall within the scope of the A ct. The 1993 NBCWA clarified the issue of who was responsible to pay the lifetime benefits of ne w retirees by inserting the following paragraph into the general description: “The parties expressly agree that the language references to ‘fo r life’ and ‘until death’ that are retained in this General Description are intended to mean that each Employer will provide, for life, only the benefits of its own eligible retirees . . . . ” (2-7-

Appellant’s App. at 482 (emphasis added).) This paragraph’s purpose was to make clear that the employer would bear the onus of paying lifetime benefits to its own eligible retirees. Basin and the Union ins erted a substantially identical paragraph in their agreement with the only differen ce being the deletion of the words “for life.” This omission does not by itself create a material issue of genuine fact to be resolved by trial. Inclusion of this paragraph without the words “for life” still serves the purpose it did in the 1 993 NBCWA, clarifying that the employer, Basin, will in fact be responsible for pr oviding benefits to its eligible retirees. In other sections of Appendix C discusse d above, Basin guarantees health benefits “for life” and “until death,” and i n this section the parties simply make clear that Basin bears that responsibility foreligible retirees. Basin indisputably knew that previous NBCWAs guaranteed lifetime benefits to coal-industry retirees. If Basin inten ded to discontinue this guarantee and limit benefits to the term of the agreement, why would it choose to retain the explicit language “for life” and “until death”? By retaining language from previous NBCWAs that guaranteed lifetime benefits, and using language from the 1993 NBCWA that placed the cost of benefits on empl oyers, Basin did not effectively alter this lifetime guarantee. Finally, the majority concludes that Basin’s and th e Union’s bargaining notes show that they did not agree to provide lifet ime benefits for retirees, and-8-

that they perhaps agreed to make lifetime benefits the subject of mandatory negotiation upon expiration of the 1993 Agreement. There is no language in the contract that can reasonably be read to convey such an agreement. Even viewing the 1993 Agreement in the context of this purportednegotiating history, a jury verdict making a finding that the 1993 Agreement makes such a promise could not survive a motion for judgment as a matter of law. Reading the 1993 Agreement in the context describedby the district court, I see no other reasonable interpretation of the contr act than one that recognizes lifetime benefits. In sum, the 1993 Agreement cann ot be construed in a manner consistent with Basin’s position. As such, there are no genuine issues of material fact to be decided by trial and the district court correctly granted summary judgment in favor of the plaintiffs.