RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0092p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

J ACK R EESE ; F RANCES E LAINE P IDDE ; J AMES C ICHANOFSKY ; R OGER M ILLER ; G EORGE N OWLIN , Plaintiffs-Appellees ,

v

.

CNH I NDUSTRIAL N.V.; CNH I NDUSTRIAL A MERICA , LLC, Defendants-Appellants

. ┐ │ │ │ │ │ │ │ │ │ ┘ No. 15-2382

Appeal from the United St ates District Court for the Eastern District of Michigan at Detroit. No. 2:04-cv-70592—Patrick J. Duggan, District Judge. Argued: October 19, 2016 Decided and Filed: April 20, 2017 Before: GIBBONS, SUTTON, and DONALD, Circuit Judges.

_________________ COUNSEL

ARGUED: Bobby R. Burchfield, KING & SPALDING LL P, Washington, D.C., for Appellants. Darcie R. Brault, MCKKNIGHT, CANZANO, SMITH, RADTKE & BRAULT, P.C., Royal Oak, Michigan, for Appellees. ON BRIEF: Bobby R. Burchfield, KING & SPALDING LLP, Washington, D.C., for Appellants. Darcie R. Brault, MCKKNIGHT, CANZANO, SMITH, RADTKE & BRAULT, P.C., Royal Oak, Michigan, for Appellees. Douglas A. Darch, BAKER & MCKENZIE LLP, Chicago, Illinois, for Amicus Curiae. GIBBONS, J., delivered the opinion of the court in which DONALD, J., joined in the judgment. DONALD, J. (pg. 15), delivered a separate opinion concurri ng in the result. SUTTON, J. (pp. 16–24), delivered a separate dissenting opinion. 

### >No. 15-2382 Reese, et al. v. CNH Indus. Page 2

_________________ OPINION

_________________ JULIA SMITH GIBBONS, Circuit Judge. De fendants-appellants CNH Industrial N.V. and CNH Industrial America LLC (collectively “CNH” ) appeal the district court’s order granting plaintiffs’ motion for reconsideration. The trial court reversed its grant of summary judgment for CNH and instead granted summary judgment for plai ntiffs. In this appeal, CNH again asks this court to find that plaintiffs’ ri ght to lifetime healthcare benefits failed to vest. If, however, we were to find that plaintiffs’ right had vested, C NH believes the district court erred in finding that CNH’s proposed changes were not “reasonably co mmensurate” with plaintiffs’ current plan.
This matter is complicated by a change in the law since this long-running litigation began. In light of M & G Polymers USA, LLC v. Tackett , 135 S. Ct. 926 (2015), which abrogated this circuit’s Yard-Man line of cases, the district court had to revisit the question of whether plaintiffs had a vested right to lifetim e healthcare benefits. The court ultimately found that they did. Because we find that the CBA is ambiguous, and because the extrinsic evidence indicates that parties intended for the healthcare be nefits to vest for life, we affirm the district court’s vesting determination. Remand to the district court is proper, however, because it failed to properly weigh the costs and the benefits of the proposed plan, as instructed by Reese II

.
I.
This case’s long and complicated factual an d procedural history has been recounted several times by this court and by the district court. Plaintiffs , former employees of CNH who retired between 1994 and 2004, filed suit in the East ern District of Michigan in 2004, seeking a declaration that they were ent itled to lifetime healthcare benef its, an injunction requiring CNH to “maintain the level of retiree hea lth care benefits currently in effect,” and damages for injuries the retirees might sustain if the benefits were terminated. Reese v. CNH Am. LLC , 574 F.3d 315, 319 (6th Cir. 2009) ( Reese I ). In 1971, CNH (then known as Ca se Corporation) and the United Automobile, Aerospace, and Agricultural Work ers of America (“UAW”) entered into a collective-bargaining agreement (“CBA”), in which CNH agreed “to provide health-careNo. 15-2382 Reese, et al. v. CNH Indus. Page 3

insurance to its retired employees and their spouses who were rece iving a [pension or a spouse’s pension]” from the company. Id . at 318. “From 1974 through 1995, each CBA (in three- or four-year terms) renewed this commitment in ‘substantially unchanged’ form, and each CBA provided that employees did not have to pay premiums in order to receive coverage.” Id

. (internal citations omitted).
In 1998, CNH and UAW entered into the CBA that generated this lawsuit. Id. That CBA was in effect until May 2, 2004, and provided that: Employees who retire under the Case Corporation Pensi on Plan for Hourly Paid Employees after 7/1/94, or their survivi ng spouses eligible to receive a spouse’s pension under the provisions of that Plan, shall be eligible for the Group benefits as described in the following paragraphs.

Id. The paragraphs that followed listed the “Medical ” and “Prescription Drug” benefits available to all classes of covered retirees regardless of the duration of their serv ice before retirement. Id

. “The CBA does not spell out what ‘Medical’ benefits are included; it just says that eligibility for specific coverage will be based on each plan’s eligibility requirements, and goes on to note that no contributions . . . are required for the Health Care Plans . . . .” Id . (internal quotations and citations omitted.)
Ultimately, the district court and the Reese I court faced two questions: “Did [CNH] in the 1998 CBA agree to provide health-care benefits to retirees and their spouses for life? And, if so, does the scope of this promise permit CNH to alter these benefits in the future?” Reese v. CNH Am. LLC , 694 F.3d 681, 683 (6th Cir. 2012) ( Reese II ). In Reese I, this court answered both questions in the affirmative, but remanded to the district c ourt so that it could determine “how and in what circumstances CNH may a lter [the healthcare be nefits] . . . .” Reese I , 574 F.3d at 327. On remand, the district court fa iled to reach the reasonableness question and did not create a factua l record upon which this court could rule. Reese II , 694 F.3d at 683. Instead, it found that CNH could not unilaterally make changes to the scope of plaintiffs’ healthcare benefits, which was in conflict with our commands in Reese I . Thus, the case was remanded to the district court again, this time w ith a list of seven factors to consider whenNo. 15-2382 Reese, et al. v. CNH Indus. Page 4

making its reasonableness-of-the-proposed-plan dete rmination and with clear instructions that CNH could make unilateral changes to the plan. 1 Reese II , 694 F.3d at 685–86.
While on this second remand, another unexpected wrinkle was added to this case when the Supreme Court abrogated this circuit’s Yard-Man decision and its progeny. M & G Polymers USA, LLC v. Tackett , 135 S. Ct. 926, 930 (2015) ( Tackett). Because Yard-Man created an inference in favor of employees in collective-bargaining cases, Reese I , 574 F.3d at 321, the district court was required to reconsider whet her plaintiffs had a vested right to lifetime healthcare benefits. Ini tially, the district court found that they did not, noting that it was “[c]onstrained by the Supreme Court’s decision” in Tackett . (DE 445, Op. & Order, Page ID 16912.) However, on plaintiffs’ motion for reconsider ation, the district reversed course and found not only that plaintiffs’ ri ghts were vested even after Tackett , but also that CNH’s proposed changes were unreasonable. Thereaf ter, CNH filed this timely appeal.

II.

We review the district court’ s grant of summary judgment de novo

. Domingo v. Kowalski , 810 F.3d 403, 410 (6th Cir. 2016) (citing Green Party of Tenn. v. Hargett , 767 F.3d 533, 542 (6th Cir. 2014)). Construing the evidence in the light most favo rable to the nonmovant, id. (citing Villegas v. Metro. Gov’t of Nashville , 709 F.3d 563, 568 (6th Cir. 2013)), summary

1 The seven factors are: [1] What is the average annual total out-of-pocket cost to retirees for their healthcare under the old plan (the 1998 Group Benefit Plan)? What is the equivalent figure for the new plan (the 2005 Group Benefit Plan)? [2] What is the average per-benef iciary cost to CNH under the old plan? What is the equivalent figure for the new plan? [3] What premiums, deductibles and copayments must retirees pay under the old plan? What about under the new plan? [4] How fast are the retirees’ out-of-pocket cost s likely to grow under the old plan? What about under the new plan? How fast are CNH’s per- beneficiary costs likely to grow under each? [5] What difference (if any) is there between the quality of care available under the old and new plans? [6] What difference (if any) is there between th e new plan and the plans CNH makes available to current employees and people retiring today? [7] How does the new plan compare to plans available to retirees and workers at companies similar to CNH and with demographically similar employees? Reese v. CNH Am., LLC , 694 F.3d 681, 685–86 (6th Cir. 2012) ( Reese II ).No. 15-2382 Reese, et al. v. CNH Indus. Page 5

judgment is appropriate if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitle d to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

III.
Before the Supreme Court decided Tackett , the rights created by collective-bargaining agreements were reviewed with a thum b on the scale in favor of employees. Tackett , 135 S. Ct. at 935. This doctrine, known most commonly as the Yard-Man inference, was the law in this circuit for more than thirty years. And it was th e law in effect when this court and the district court initially reviewed the right s at issue in this case. In Tackett , the Supreme Court abrogated the Yard-Man inference and instructed courts to appl y “ordinary principles of contract law” when reviewing collective-bargaining agreements. Id . at 937. Thus, the Supreme Court found, despite Yard-Man and its progeny’s claim to the contrary, that we had not been employing ordinary contract-interpr etation principles. What is hard to disentangle, however, is how many, if any, of the contract principles created by the Yard-Man line of cases survive Tackett

. Presumably, not every contract-int erpretation principle found in those cases impermissibly relied on inferences in favor of employees. But, Tackett required us to revisit those old rules to weed out impermissible assumpti ons and inferences.
On remand from the Supreme Court, we inte rpreted the high Court’ s instructions, and noted the following, non-exhaustive list of or dinary principles of contract law: • [A]s with any other contract, th e parties’ intentions control. • Where the words of a contract in writing are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent. • Although a court may look to known custom s or usages in a particular industry to determine the meaning of a contract, the parties must prove those customs or usages using affirmative eviden tiary support in a given case. • [T]he written agreement is presumed to encompass the whole agreement of the parties. • Courts [should] avoid constructions of contracts that would render promises illusory because such promises cannot serve as consideration for a contract. . . . [A] promise that is “partly” illu sory is by definition not illusory.No. 15-2382 Reese, et al. v. CNH Indus. Page 6

• [C]ourts should not construe ambiguous writ ings to create lifetime promises. . . . [C]ontracts that are silent as to their duration will ordinarily be treated not as “operative in perpetuity” but as “operative for a reasonable time.” • [T]raditional rules of contractual interpretation require a clear manifestation of intent before conferring a benefit or obligation. • Contractual obligations w ill cease, in the ordinary course, upon termination of the bargaining agreement. • When a contract is silent as to the dur ation of retiree bene fits, a court may not infer that the parties intended those benefits to vest for life. Tackett v. M & G Polymers USA, LLC , 811 F.3d 204, 208 (6th Cir. 2016) ( Tackett III ) (citing Tackett , 135 S. Ct. at 933–37). The Tackett III court went on to cite additional principles highlighted by Justice Gi nsburg’s concurrence: • Under the cardinal principle of contra ct interpretation, the intention of the parties, to be gathered from the whole instrument, must prevail. • [W]hen the contract is ambiguous, a cour t may consider extrinsic evidence to determine the intentions of the parties. . . . [F]or example, the parties' bargaining history. • No rule requires “clear and express” language in order to show that parties intended health-care benefits to vest. • Constraints upon the employer after th e expiration date of a collectivebargaining agreement . . . may be derived from the agreement’s “explicit terms,” but they may arise as well from imp lied terms of the expired agreement.

Id. at 208–09 (citing Tackett , 135 S. Ct. at 937–38 (Ginsburg, J., concurring)). “Importantly,” Tackett III noted, “the Court rejected Yard-Man ’s inferences in favor of retirees, but also declined to adopt an ‘explicit language’ requirement in favor of companies.” Id. at 209 (citing Tackett, 135 S. Ct. at 937–38 (Gin sburg, J., concurring)); see also Litton Fin. Printing Div., a Div. of Litton Bus. Sys., Inc. v. N.L.R.B., 501 U.S. 190, 203, 207 (1 991) (“[A] collectivebargaining agreement [may] provide[ ] in explicit terms that certain benefits continue after the agreement’s expiration,” but nevertheless, “cons traints upon the employer after the expiration date of a collective-bargaining agreement . . . may arise as well from the express or implied terms of the expired agreement itself.”). Thus, relying heavily on Justice Ginsburg’s

concurrence, Tackett III removed presumptions in favor of vesting, but also explicitly declined to shift that presumption to the employer.No. 15-2382 Reese, et al. v. CNH Indus. Page 7

The Tackett III court then proceeded to discuss what effect the absence of any durational language has on the vesting of rights. It held that: [W]hile the Supreme Court’s decision [in Tackett ] prevents us from presuming that “absent specific durational language re ferring to retiree benefits themselves, a general durational clause says nothing about the vesting of retiree benefits,” we also cannot presume that the absence of such specific language, by itself, evidences an intent not to vest benefits or that a general durational clause says everything about the intent to vest.

Tackett III, 811 F.3d at 209. The Tackett III court highlighted that the retirees in that case acknowledged that the agreements at issue lacked clear and expr ess language vesting benefits, but still remanded the case to th e district court so that it could determine whether certain documents were part of the agreements or “m ay otherwise serve as extrinsic evidence.” Id. at 210 & n.3.
While, in some cases, the presence of a general-durational clause will cure any ambiguity as to the duration of benefits, see Gallo v. Moen, Inc. , 813 F.3d 265, 268 (6th Cir. 2016) (finding that, due to the lack of a specific end date, th e CBA’s healthcare benefits should be governed by agreement’s general-durational clause), the genera l-durational clause here does not. This is so because the parties in this case ca rved out certain benefits, such as life insurance and healthcare insurance, and stated that those coverages ceased at a time different than other provisions of the CBA. True, this provision says only that hea lthcare coverage continues past the date of retirement and is silent on whether the benefits continue past the te rmination date of the agreement. But, when read in conj unction with the whole instrument, as Tackett III commands, this silence, rather th an resolving ambiguity, furthers it. We cannot, and should not, presume that the general-durational clause here says everything about the parties’ intentions. Tackett III , 811 F.3d at 209.
To find ambiguity in this case, partially from the silence as to the parties’ intentions, does not offend the Supreme Court’s mandate from Tackett that we not infer vesting from silence. There is surely a difference between finding am biguity from silence and finding vesting from silence. The latter is impermissible after Tackett ; the former permits the court to turn to extrinsic evidence to determine the intent of the parties— precisely the goal in a ny contract dispute.No. 15-2382 Reese, et al. v. CNH Indus. Page 8

Further, just as the Supreme Court has comman ded that we not infer vesting from silence, it has directed us not to infer vesting from the tying of benef its to achievement of pensioner status. But, as with silence, it has not directed us to ignore tying’s ability to create ambiguity. Here, healthcare benefits were tied to pension eligibility. This, by itself, says little about whether those healthcare benefits should ve st for life. It does, however, create an ambiguity about the parties’ intentions. Inferring ve sting from tying alone violates Tackett and ordinary principles of contract interpretation. Finding an ambiguity from tying allows a court to explore the extrinsic evidence to discover what the parties actually inte nded. This, as with silence, does not offend any principle of contract interpretation. Instead, it moves us closer to the ultimate goal in any contract dispute: discovering th e parties’ true intentions. See Tackett III, 811 F.3d at 208 (holding that the “cardinal principle of contra ct interpretation” shoul d govern: what were the parties’ intentions?) (citing Tackett , 135 S. Ct. at 937–38 (Gins burg, J., concurring)).

Silence as to the duration of retiree healthcare benefits, when combined with those benefits’ coupling to pensioner status and their segregation from other entitlements in the CBA, overcomes any presumption that the gene ral-durational clause should govern. See id . (noting also our limitation on presuming that a general-durational clause, by itself, conclusively answers the question of vesting). If these elements were not present, or if the CBA clearly stated that the general-durational clause was intended to govern healthcare benef its, the CBA would most likely be unambiguous. But this is not the case, and Tackett III prohibits us from relying exclusively on the general-durational clause to resolve this matter. 2 Here, presuming that the CBA’s general-durational clause says ev erything about the parties’ inte ntions ignores evidence, taken from the whole instrument, indicating that the parties may have intended the benefits to extend beyond the end of the CBA. Giving dispositive weight to the ge neral-durational clause here would move the thumb from the employees’ side of the scale and place it on the side of employers. Tackett , however, sought to create a level pl aying field, not to foster an equally

2 To the extent that Tackett III and Gallo are in conflict—a dispute about which reasonable minds may differ— Tackett III , being first in time, must govern. To so hold is not an endorsement of Tackett III ’s reasoning nor is it an indictment of Gallo ’s; rather, it simply demonstrates adhe rence to this court’s precedent. Darrah v. City of Oak Park , 255 F.3d 301, 309–10 (6th Cir. 2001) (quoting Salmi v. Sec’y of Health & Human Servs. , 774 F.2d 685, 689 (6th Cir. 1985)); see also 6th Cir. R. 32.1(b) (“Published panel opinions are binding on later panels. A published opinion is overruled only by the court en banc.”).No. 15-2382 Reese, et al. v. CNH Indus. Page 9

inequitable one. Accordingly, we reach the extr insic evidence in this case to determine the parties’ intent.
The district court previously reviewed the extrinsic evidence and found that the plaintiffs’ rights had vested. The record supports the district court’s fi nding. For example, in an accounting document, CNH calculated the costs of certain retirees’ benefits, and when determining healthcare costs, based the figure on th e employees’ life span. It is unlikely that an employer would base the future cost of supplying an employee with healthcare insurance on the employee’s life span, as CNH did here, if that employer knows that its he althcare obligations expire at a fixed date. Furthe r, CNH representatives repeatedly told the company’s employees that retirees would have health care coverage for their lifetimes. For example, in a June 18, 1990 letter to Reba Williams, the spouse of a deceased retiree, CNH informedher she would have medical insurance “coverage[] for [her] lifetim e.” (DE 153, Exh. 61.) And CNH intended to provide group insurance coverage to the spouses of retirees “in a consistent manner” to the way it handled Williams’s claim. (DE 154, Exh. 62.) These and other examples in the record indicate that CNH, the retirees, and the reti rees’ spouses, intended and expected that the healthcare benefits provided were vested for life.
However, unless a CBA says otherwise, the ve sting of healthcare rights does not prevent reasonable modifications to those rights. Reese I , 574 F.3d at 325. Thus , we must consider whether CNH’s proposed changes are reasonable. In Reese II, we remanded this case to the district court so that it could consider, again, whether the proposed changes to plaintiffs’ plans were reasonable. Reese II , 694 F.3d at 683. In so doing, we listed seven non-exhaustive factors that the district court should consider. Id . at 685–86. Those factors were: [1] What is the average a nnual total out-of-pocket cost to retirees for their healthcare under the old plan (the 1998 Group Benefit Plan)? What is the equivalent figure for the new pl an (the 2005 Group Benefit Plan)? [2] What is the average per-beneficiary cost to CNH under the old plan? What is the equivalent figure for the new plan? [3] What premiums, deductibles and copayments must retirees pay under the old plan? What about under the new plan?No. 15-2382 Reese, et al. v. CNH Indus. Page 10

[4] How fast are the retirees’ out-of- pocket costs likely to grow under the old plan? What about under the new plan ? How fast are CNH’s per-beneficiary costs likely to grow under each? [5] What difference (if any) is there between the quality of care available under the old and new plans? [6] What difference (if any) is there between the new plan and the plans CNH makes available to current empl oyees and people retiring today? [7] How does the new plan compare to plan s available to retirees and workers at companies similar to CNH and with demographically similar employees?

Id . On remand, and after reconsidering whether pl aintiffs’ rights had vested, the district court proceeded to consider these factors. It grouped the first five together and stated that these factors all pertain to comparing the proposed plan to the current plan. The district court then considered the two remaining factors at the end of its analysis: a comparis on of the proposed plan to the plans CNH offers current employees and retirees and a comparison of CNH’s proposed plan to other similar companies’ plans.
The district court ultimately concluded that CNH’s proposed plan was not reasonably commensurate with the current plan, relying pr imarily, if not exclusiv ely, on the first five factors—specifically, the increased costs to plain tiffs under the proposed pla n. The district court found that plaintiffs and current employees and retirees “are in r oughly similar positions in terms of their healthcare situat ion,” but yet found that th is factor did not weigh strongly in favor of either party. It also found the final factor—the comparison between CNH’s proposed plan and the plans offered by similar companies—did not we igh in favor of either party, and in its reasoning questioned the utility of this factor.
The district court’s analysis erred in several ways, and re mand is necessary to address these mistakes. Reese II made clear that the district court was to consider not only any increased costs to plaintiffs, but also any additi onal benefits that inured to them. Reese II , 694 F.3d at 685. Specifically, we asked the district court to determine if “the retirees’ benefits differ in material respects from those offered to current employ ees and people retiring today,” and whether the proposed changes to the plan “are reasonable in light of changes in health care (including access to new medical procedures and prescriptions).” Id . (internal quotations and citations omitted). Thus, while the district court held that the tw o plans provide roughly the same “quality of care”No. 15-2382 Reese, et al. v. CNH Indus. Page 11

because both provide coverage for “medically nece ssary” procedures, this ignores that, before a procedure can be medically necessary, it must be medically possible. As we noted in Reese II, “[n]ew and better medical procedures arise while others become obsolete. And it is the rare medical innovation that costs less than the one it replaces.” Reese II , 694 F.3d at 683. Thus, “[r]etirees, quite understandably, do not want life time eligibility for the medical-insurance plan in place on the day of retirement, even if that means they would pay no premiums for it.” Id . at 683–84. Instead, “[t]hey want eligibility for up-to-da te medical-insurance pl ans, all with access to up-to-date medical pr ocedures and drugs.” Id . at 684. The district court’s failure to consider the increased benefits, along with the in creased costs, necessitates remand.
The district court focused heavily on cost-shi fting provided for in th e proposed plan. It did so with good reason: many of the Reese II factors dealt with cha nges in costs for CNH and for plaintiffs. In considering those changes in costs, however, the district court made several mistakes. For those Medicare-eligible plaintiffs , the district court cons idered only the costs shifted away from CNH, and apparently presumed th at plaintiffs would foot this entire bill. Of course this is not true ; a substantial portion of the costs shifted to Medicare-eligible plaintiffs will be covered by the federal government. Thus, the true cost-shifting is less than that highlighted by the district court.
The district court also erred by focusing too heavily on the future increased costs to nonMedicare-eligible plaintiffs. No plaintiff-retiree, and very few plaintiff-spouses, will be ineligible for Medicare in 2032. Thus, the most dramatic cost-shi fting under the proposed plan is more paper tiger than re alistic expectation. There are, how ever, thirteen plaintiffs—very young spouses of retirees—who would be ineligible for Medicare in 2032. These unlucky thirteen would be subject to drastic increases in costs for their healthcare, and the district court refused to ignore them in its reasonableness analysis. Although it was right to acknowledge this small subset of the class, the district court placed an undue amount of weight on their costs. In any institutional setting, there will be certain members who are harm ed by policy decisions. These thirteen spouses fall into that camp.
Because the proposed plan was materially similar to the plan offered to current employees and retirees, while being less expensive to plaintiffs, the district court further erred inNo. 15-2382 Reese, et al. v. CNH Indus. Page 12

finding that this factor di d not favor either side. First, the mere fact that the proposed plan was equal in substance to the plan offered to curre nt employees and retirees weighs in favor of reasonableness. Reese II asked the district court “[w]hat diff erence (if any) is there between the new plan and the plans CNH makes available to current employees and people retiring today?”
Reese II , 694 F.3d at 686. Thus, this reasonableness benchmark asked the district court to determine if the proposed plan was similar to the current plans being offered by CNH. The district court found that it was. Second, not only does the proposed plan place plaintiffs in substantially the same position in terms of healthcare benefits as current employees and retirees, but plaintiffs also pay less for these same benefits.

The district court was motivated to find this f actor in equipoise by looking to benefits that post-2004 employees and retirees received outside th e healthcare-benefit context. For example, while their premiums are higher than those un der the proposed plan, current employees and retirees also receive higher pensions and a one-time contribution to a health-savings account. Requiring consideration of these benefits, subsequently bargaine d for by UAW and CNH, would essentially grandfather all past -retirees into the new CBA from which they were explicitly excluded. Requiring an equal increase in plainti ffs’ healthcare benefits for every benefit or concession won by current CNH employees is not part of the Reese II framework. The proposed plan must offer healthcare benefits similar to those received by current employees and retirees. It does not have to exceed this requirement to co mpensate plaintiffs for benefits to which they are not entitled. To do so would be not only unfair to CNH but also could have adverse consequences on future collective-bargaining agreements.
Finally, the district court erred in determin ing whether the proposed plan was reasonable in light of changes to healthcare. This factor asked the district court to review plans offered by “companies similar to CNH and with demographically similar employees.” Reese II , 694 F.3d at 686. The district court discounted the utility of th is factor, noting that “[n]aturally, the proposed plan will compare favorably to some plans and not to others, and the parties will surely locate the plans that support their respective litigation-induced positions and select those plans as comparators.” (DE 450, Op. & Order, Page ID 17031.) Yet, even though it acknowledged the inherent biases of the parties’ “cherry-picked” plans, the district court still used plaintiffs’No. 15-2382 Reese, et al. v. CNH Indus. Page 13

comparator as the basis for its decision. ( Id . at 17030, 17031.) It is true that the last factor is less than clear about what qualifies as a “similar company” or what exactly is meant by “demographically similar employees,” but this does not warrant ignoring as irrelevant the aggregate data of 900 companies. Many of th ese companies are large corporations (Ford, General Motors, AT&T, etc.) that are similar to CNH, and, while not perfect comparators, this aggregate data is wort hy of consideration.

The district court also held that it could not cons ider the reasonableness of the proposed plan in piecemeal fashion. CNH challenges this holding and ur ges us to remand so that the district court can examine the proposed plan in this way. There is no law directly on point, and neither Reese I nor Reese II addresses this directly. There is language in both cases, however, that suggests that the court could permit the distri ct court to sever the proposed plan and address each part individually. CNH claims Reese I supports its position that the terms of the proposed plan may be severed and examined indi vidually. Specifically , it says that Reese I ’s direction to the district court “to decide how and in what circumstances” CNH may alter such benefits suggests that the court may sever the terms. See Reese I , 574 F.3d at 327. Although not cited by CNH, language in Reese II also suggests that the terms may be severed. There, the court held that the reasonableness inquiry he re “is a vexing one” and that “i f the parties cannot resolve the [issues] on their own, we (and the district court) will do our best to resolve it for them.” Reese
II , 694 F.3d at 686. Thus, we see no reason why th e district court cannot examine individual terms of the proposed plan for reasonableness. And, allowing the district court to determine which terms are reasonable, and which are not, mi ght facilitate the settlement process between the parties and could lead to a quicker re solution of this l ong-running litigation.
On remand, the district court should reconsider the factors presented in Reese II , with special attention on the increased benefits to plaintiffs—including those benefits created by progress in medical procedures an d prescriptions. The district court should also consider how much of the cost to Medicare-eligible retirees will be borne by the federal government or others. And lastly, the district court shoul d reconsider whether the proposed plan is reasonable in light of the plans offered at similar companies— i.e. , large manufacturing corporations with unionNo. 15-2382 Reese, et al. v. CNH Indus. Page 14

representation. 3 It should also look to the individual terms proposed and determine, if not reasonable on the whole, whether individual pieces of the plan are reasonable.

IV.
For the reasons stated above, we affirm the dist rict court’s finding thatplaintiffs’ right to lifetime healthcare benefits vested. Remand is n ecessary, however, so that the district court can reconsider the reasonableness of CNH’s proposed plan in light of Reese I , II , and the instructions they provide.

3 The “demographically similar employees” language from this Reese II factor must do some work, and we believe comparing collectively-bargaine d-for agreements to coll ectively-bargained-for ag reements, coupled with limiting the inquiry to large manufacturing corporations, will help ensure that the comparators are similar to CNH.No. 15-2382 Reese, et al. v. CNH Indus. Page 15

_________________

CONCURRENCE

_________________ BERNICE BOUIE DONALD, concurring. I agr ee with the lead opinion as to affirming the district court’s vesting dete rmination and, so, concur in the judgment. I write separately, however, to reassert my disagreement with this Court’s previous determination that despite a lifetime vesting, CNH may unilaterally modify th e scope of the retirees ’ healthcare benefits.

In Reese I , the Court held that “to the extent [the district court] suggests that these benefits must be maintained precisely at the level provided for in the 1998 CBA, it is not supported by the 1998 CBA, extrin sic evidence provided by the parties or common sense.”
Reese I , 574 F.3d at 327. The converse, that CNH may “reasonably” alter these benefits, however, is not supported by this Court or Supreme Court precedent. As I noted in my dissent in
Reese II, “[s]everal decisions of this Court, as well as Supreme Court precedent, express the principle that, once a retiree’s he alth care benefits have vested for life, an employer’s unilateral modification of the scope of those benefits is a violation of the Labor Management Relations
Act.” Reese II , 694 F.3d at 687 (citing Allied Chemical & Alkali Workers of Am., Local Union No. 1 v. Pittsburgh Plate Gl ass Co., Chemical Division , 404 U.S. 187, 181 n.20 (1971); Yolton v. El Paso Tenn. Pipeline Co. , 435 F.3d 571, 578 (6th Cir. 2006)). My review of this issue and the relevant law, unchanged by the Supreme Court’s decision in Tackett , causes me to continue in my belief that because we have found that the reti rees’ healthcare benefits vested for life, “the level of those benefits must be deemed vested in scope and not subject to unilateral modification by CNH.” Reese II , 694 F.3d at 688.
Considering, however, the well-est ablished law-of-the-case doctrine, see Caldwell v. City of Louisville , 200 F. App’x 430, 432–33 (6th Cir. 2006) (“Th e law-of-the-case doctrine precludes reconsideration of issues decided at an earlier stage of the case”), I recognize the limitations— although not the impossibility—in reach ing a result that is inconsistent with that reached at this Court’s first reviewof this case.No. 15-2382 Reese, et al. v. CNH Indus. Page 16

_________________ DISSENT

_________________ SUTTON, Circuit Judge, dissenting. In a 9–0 decision reversing our court in M & G Polymers USA, LLC v. Tackett , the Supreme Court asked us to do two things: (1) to interpret collective bargaining agreements “according to ordinary principles of contract law,” and (2) to stop using the extraordinary Yard-Man “inferences,” which had “plac[ ed] a thumb on the scale in favor of vested retiree benefits in all collective-ba rgaining agreements.” 135 S. Ct. 926, 933, 935 (2015). With the unanimous overruling of UAW v. Yard-Man, Inc. , 716 F.2d 1476 (6th Cir. 1983), those twin directives became one: appl y normal rules of contract interpretation to promises with respect to healthcare benefits.
Because our court had long insisted that the Yard-Man inferences sprang from ordinary contract law, the Supreme Court pr oceeded to guide us about what counts as an ordinary contract principle and what does not. Th e Court told us to respect “g eneral durational clauses” in collective bargaining agreements, reminded us that “courts should not construe ambiguous writings to create lifetime promises,” and directed us that, “when a contract is silent as to the duration of retiree benefits, a court may not infer th at the parties intended those benefits to vest for life.” Id. at 936–37.
These principles should make quick work of this case. In this collective bargaining agreement, the company never promised to pr ovide healthcare benefits for life, and the agreement contained a durational clause that limited all of the benefits and burdens of the contract (not otherwise extended or shortened) to the six-year term of the agreement. In every other circuit in the country, that would end this case. The durat ional clause would control, and the healthcare benefits would last as long as the durationa l clause said they would.
Not here. The court concludes that the comp any made a lifetime commitment to provide healthcare benefits as a matter of law. Is this th e application of “ordinary principles of contract law”? I am dubious. I know of no other area of contract law inwhich an agreement’s promises, subject to an uncontradicted dur ational clause, could be found ambiguous as to their duration—No. 15-2382 Reese, et al. v. CNH Indus. Page 17

and then interpreted to last for life. The court’s a pproach to this contract is ordinary only in this circuit and only in ways that contradict the Supreme Court’s unambiguou s directives about how to interpret such contracts. I respectfully dissent.
Several ordinary contract princi ples tell us how to resolve this case. One says that the four corners of the collective bargaining agre ement are a good place to start. “Because ‘the written agreement is presumed to encompass th e whole agreement of th e parties,’ and because Congress has placed special emphasis on the ‘written terms’ of retiree healthcare plans, we must enforce those terms as written.” Gallo v. Moen Inc. , 813 F.3d 265, 270 (6th Cir. 2016) (quoting Tackett , 135 U.S. at 936, 933), cert. denied , 137 S. Ct. 375 (2016); see also 29 U.S.C. § 1102(a)(1). In this instance, the key is what the agreement does and does not say. It never promises lifetime healthcare benefits. What is written are two things: a specific promise of retiree healthcare benefits and a general durationa l clause that ends the entire agreement on “May 2, 2004.” That means the benefit lasts as long as the commitment—until May 2, 2004.
Reinforcing that conclusion is another tradi tional principle. “[C] ontractual obligations will cease, in the ordinary course, upon te rmination of the bargaining agreement.” Litton Fin. Printing Div. v. NLRB , 501 U.S. 190, 207 (1991); see Tackett , 135 S. Ct. at 937. This agreement does not contain any written terms saying that healthcare benefits are excepted from the durational clause. Just the opposite: The agr eement says that the Group Benefit Plan “ will run concurrently with this Agreement and is hereby made a part of this Agreement.” R. 439-4 at 45 (emphasis added). The durational clause, and th e absence of any provision setting a time frame for healthcare benefits, is all a nyone needs to know to decide this case. The bene fits do not last beyond May 2, 2004, because the agr eement did not promise them beyond that date. Any other approach to the issue, Tackett explained, “distort[s] the text” of the agreement by “refus[ing] to apply general durational clauses to provisions governing retiree benefits.” 135 S. Ct. at 936.
A third principle cements this conclusion. “[W] hen a contract is silent as to the duration of retiree benefits, a court may not infer that the parties intended those benefits to vest for life.” Id. at 937. In this case, the he althcare-benefits promise is si lent as to the length of the commitment, and the agreement contains an expi ration date of six years. That means theNo. 15-2382 Reese, et al. v. CNH Indus. Page 18

promise ends on May 2, 2004, unless and until the parties agree to exte nd it in the next collectively bargained agreement (just as they had so often done in the past).

Last but not least is this: Even if there we re no durational language , even in other words if there were no six-year limit to the agreement, we still could not construe this agreement’s commitments as lifetime promises. “[T]he traditional principle,” Tackett noted, is “that courts should not construe ambiguous writings to create lifetime promises.” Id. at 936. “[C]ontracts that are silent as to their durati on will ordinarily be treated not as ‘operative in perpetuity’ but as ‘operative for a reasonable time.’” Id. (quoting 3 A. Corbin, Corbin on Contracts § 553, p. 216 (1960)).
These principles should resolve this case. And they would resolve this case in every other circuit in the country. Before Tackett , ours was the only circuit that applied a presumption in favor of treating healthcare be nefits as promises for life. See Noe v. PolyOne Corp. , 520 F.3d 548, 568 (6th Cir. 2008) (Sutton, J., concurring in part and dissenting in part). The other circuits applied the just-mentioned rules of interpretation to contracts just like th is one, confirming that these rules are indeed “ordinary,” and thus resp ected the durational clauses in each of them. See, e.g. , Senior v. NSTAR Elec. & Gas Corp. , 449 F.3d 206, 218 (1st Cir. 2006); Joyce v. Curtiss-Wright Corp. , 171 F.3d 130, 134 (2d Cir. 1999); UAW v. Skinner Engine Co. , 188 F.3d 130, 140 (3d Cir. 1999); Rossetto v. Pabst Brewing Co. , 217 F.3d 539, 543 (7th Cir. 2000); see also Raymond A. Franklin, Note, Vesting Retirement Benefits: Revisiting Yard

- Man and Its Unacknowledged Presumption , 25 J. Civ. Rts. & Econ. Dev. 803, 821–22 (2011). After Tackett , unsurprisingly, the other courts of appeals con tinue to enforce general durational clauses in similar agreements—including a unanimous Fourth Circuit decision from ju st a few weeks ago. See Barton v. Constellium Rolled Prods.-Ravenswood, LLC , 851 F.3d 349, 354 (4th Cir. 2017); see also Finley Hosp. v. NLRB , 827 F.3d 720, 725 (8th Cir. 2016); Michels Corp. v. Cent. States, Se., & Sw. Areas Pension Fund , 800 F.3d 411, 421 (7th Cir. 2015).
There is one area, it’s wo rth pointing out, in which our circuit has followed these traditional rules. Pre- Tackett and post- Tackett , we have honored these principles if the healthcare-benefits promise was contained in an employment agreement between an individual and the company, as oppos ed to a collectively ba rgained agreement. See Sprague v. Gen. MotorsNo. 15-2382 Reese, et al. v. CNH Indus. Page 19

Corp ., 133 F.3d 388, 400 (6th Cir. 1998) (en banc)

. That means we have applied a presumption in favor of lifetime vesting wher e it is needed least (company pr omises in which the employees were collectively represented by a union), not where it is need ed most (company promises in which the employees have no representative). Notably, Tackett favorably cited Judge Nelson’s decision in Sprague , suggesting we should apply the same rules in both settings. Tackett , 135 S. Ct. at 936–37.
I am hard pressed to understand our hesita nce in following the path that the Supreme Court has set for us, that the other circuits have long followed, and that we have followed when it comes to non-collectively bargained agreements with respect to the same subject matter. In what area of contract law would we disregard a durat ional clause? I know of none. How, then, can this be the application of ordinary contract principles? I know not.
In abrading an inter-circuit split (and an intr a-circuit split) that the Supreme Court just sutured shut, the court with respect makes too mu ch of the silence in the healthcare-benefits provision about the length of the commitment and too little of the durational clause’s express limitation of these benefits to “May 2, 2004.” C ontractual ambiguity, it may be true, gives courts a warrant to search the record for extrinsic ev idence of contractual meaning. But that warrant requires a textual finding unfound he re—that there are two compe ting interpretations, both of which are fairly plausible r eadings of the language. See TMW Enters., Inc. v. Fed. Ins. Co. , 619 F.3d 574, 582–83 (6th Cir. 2010); Ant onin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 425 (2012). Put differently, if there is only one fair reading of the agreement, that is the end of the matter.
So it should end here. Everyone agrees on one fair reading: thatretiree healthcare benefits would last, like th e rest of the promises in the agreem ent, until the contract expired on May 2, 2004. The majority offers a nother: that the contract prom ised retiree benefits for life. But the contract principles that the Court spelled out in Tackett do not permit that reading.
Consider the court’s efforts to identify ambiguity and to resolve it in favor of a lifetime promise. It points to a provisi on in the Group Benefit Plan that says pension-eligible retirees “who retire . . . after 7/1/94” and their spouses “shall be eligible for the Group benefits asNo. 15-2382 Reese, et al. v. CNH Indus. Page 20

described in the following paragraphs [which in clude medical coverage]. All other coverages cease coincident with the date of employment term ination due to retirement.” R. 439-3 at 28. But this provision says only that healthca re coverage continues past the date of retirement . It does not say that benefits continue past the term ination date of the agreement, much less that they continue for life.
Silence about the length of this commitme nt, the court adds, supports a finding of ambiguity. In the court’s words: “when read in conjunction with the whole instrument, . . . this silence, rather than resolving ambiguity, furthers it.” Maj. Op. 7. But that is true only if we ignore what “the whole instrument” says. When r ead in conjunction with a durational clause that expressly limits all provisions of the agreement to six years, silence as to a benefits provision must submit to the durationa l clause, not override it.
Nor does this interpretation require us to “presume that [the] general durational clause
says everything about the intent to vest.” Tackett v. M & G Polymers USA, LLC , 811 F.3d 204, 209 (6th Cir. 2016); see Maj. Op. 8. That is a straw man. Th e durational clause sets an end date, hardly a surprise in a collective bargaining agreem ent, and that end date applies when nothing in the agreement contradicts it. No presumptions necessary. And no ambiguity. Silence on the duration of the retiree healthcare benefits means that the agreement’s general durational clause is still the only provision specifying when t hose commitments terminate—May 2, 2004. See Gallo , 813 F.3d at 269–70. Any other approach is Yard-Man re-born, re-built, and re-purposed for new adventures.

The court is troubled th at “[g]iving dispositive weight to the general-durational clause here would move the thumb from the employees’ side of the scale and place it on the side of employers” and that “ Tackett sought to create a level playing field, not to foster an equally inequitable one.” Maj. Op. 8–9. No worries there. As just shown, there is no risk in giving “dispositive weight” to an expres s general durational clause so long as courts honor express limits or extensions of promises in the agreement. More fundamentally, Tackett did not direct courts to give employees and em ployers an equal shot in litig ation regardless of what their contract said; it ensured that co llective bargaining agreements w ould be interpreted by the same, ordinary principles as other contracts. Equality between contracts, not between litigants facedNo. 15-2382 Reese, et al. v. CNH Indus. Page 21

with different contractual commitments. In any other area, we woul d say an uncontradicted general durational clause controls all of the promis es in an agreement. If that puts a thumb on any side of the scale, it’s becau se the text of the collectively bargained agreement put it there. And silence cannot lift it.
How, one might ask, does the court sidestep the Supreme Court’s command that, “when a contract is silent as to the duration of retir ee benefits, a court may notinfer that the parties intended those benefits to vest for life”? Tackett , 135 S. Ct. at 937. Isn’t that rule applicable here? Don’t the court’s repeatedreferences to “silence” about the duration of the healthcarebenefits commitment implicate the rule? The majo rity demurs “because the parties in this case carved out certain benefits, such as life insurance and healthcare insurance, and stated that those coverages ceased at a time different than other provi sions of the CBA.” Maj. Op. 7. But that is a recycling of the point addressed above—that the agreement says that retiree healthcare benefits continue after the date of retir ement, quite understandably, but not after the expiration date of the agreement. All the court has to go on to extend th e benefits past the end of the agreement, once again, is: silence. And under Tackett , we cannot infer vesting from silence.
The court next claims ambiguity about whet her the healthcare bene fits last a lifetime because eligibility for healthcare benefits is link ed to pensions and because pensions are vested lifetime commitments. But the tying language in this contract has nothing to do with the duration of the healthcare benefits. The agreement says that pensioners “shall be eligible” for healthcare benefits for as long as the agreement provides those benefits —that is, until May 2, 2004—not for as long as retirees earn a pension. The court admits that the tying of healthcare benefits to pensioner status “by itself, says little about whether those healthcare benefits should vest for life. It does, however, create an ambi guity about the parties’ in tentions.” Maj. Op. 8.
But if tying says little about vesting, how does it create ambigu ity about vesting? I do not know. Tackett at any rate “rejected this kind of ‘tying’ analysis as a relic of a misdirected frame of reference, calling it one of many Yard-Man inferences that was ‘inc onsistent with ordinary principles of contract law.’” Gallo , 813 F.3d at 272 (quoting Tackett , 135 S. Ct. at 937). A forbidden inference cannot generate a plausible reading. And without a plausible explanation for treating the healthcare benefits promise as a promise for life, the general dur ational clauseNo. 15-2382 Reese, et al. v. CNH Indus. Page 22

controls. We do not “expect to find lifetime commitments in time-limited agreements.” Gallo , 813 F.3d at 269. To suppose that this agreemen t’s tying language suggests lifetime vesting clearly enough to override an expl icit durational clause is to find an elephant-sized commitment in a linguistic mousehole. See id. ; Whitman v. Am. Trucking Ass’ns , 531 U.S. 457, 468 (2001). It doesn’t fit, and it doesn’t belong.

Because the retiree healthcar e benefits expired on May 2, 2004, the extrinsic evidence invoked by the court is neither he re nor there. Still, even setting aside the absence of a contractual ambiguity to reso lve—even indeed setting aside the agreement’s provision precluding use of parol evidence, R. 439-4 at 47—t he extrinsic eviden ce does not support the court’s position. Start with the parties’ barg aining history. “The 1998 CBA not only set the rules for employees who retired during th e next six years of that CBA; it also reset the rules for employees who retired after July 1, 1994, which is inconsistent with the notion that the 1990 and 1995 CBAs (using the same [retiree healthcare benefit] language as the 1998 CBA) created unalterable, irreducible health benefits.” Reese v. CNH Am. LLC , 574 F.3d 315, 324 (6th Cir. 2009). After Tackett , that same logic shows a lack of vesting, which is exactly what we concluded in Gallo . That these benefits were reset (or “continued” as in Gallo ) after prior agreements expired undermines a theory of vesti ng because it indicates that they would have to be reset again when this agreement expired. See Gallo , 813 F.3d at 270.
This bargaining history also casts a clarifying light on the accounting document that shows CNH planned to pay healthca re benefits for the life of th e retiree. CNH and the union renewed retiree healthcare benefits in each succe ssive agreement until this litigation began. All that the accounting document shows is that CNH expected that prac tice to continue and forecast its budget accordingly. We dealt w ith exactly this situation in Gallo : “That a company to its credit hopes to subsidize healthcare benefits for its retirees for as long as possible does not mean it has promised to do so.” 813 F.3d at 274. Taken in contex t, the accounting document shows only that CNH hoped and planned to pay life time healthcare benef its, not that it was contractually bound to do so. See Witmer v. Acument Glob. Techs., Inc. , 694 F.3d 774, 777 (6th Cir. 2012).No. 15-2382 Reese, et al. v. CNH Indus. Page 23

Nor is the remaining extrinsic evidence helpful, as most of it predat es the relevant time period. The plaintiffs consist of retirees from between July 1, 1994 and April 1, 2005, and this dispute concerns what the company promised to that group. No amount of parol evidence regarding prior agreements, incl uding promises made to worker s who retired in the 1970s and ’80s, is probative of the meaning of a set of distinct promises ma de by a new corporate parent for the first time in 1995, and then in altered form in 1998. The 1993 and 1995 “cap letters” showed that CNH planned to provide coverage beyond the term of the 1995 agreement, but again a commendable and hope-filled plan does not entail a binding commitment. We should reject this argument for the same reason the Fourth Circuit just rejected it: “The Cap Letters both fall far short of Tackett ’s requirement for a clear signal that parties intend for benefits to vest and fail to negate the unambiguous durational la nguage in [the agreement].” Barton , 851 F.3d at 356. The “Letter[s] of Understanding” that accompanied the 1998 agreement, moreover, reinforce the conclusion that the benefits were not vested. One letter provided thatCNH could unilaterally alter benefits to reflect new healthcare laws, and the other limited its promise to keep retiree costs constant to “the term of the 1998 labor agr eement,” R. 439-3 at 42. Even if admissible, the documents do not establish a lifetim e right to healthcare benefits.

* * *
The conundrum of today’s decision is that Tackett tells us to apply ordinary contract principles to these agreements, and yet every ot her court in the country would handle this case differently. I could double the length of this opini on with applicable quotes from other circuits but will offer just a few to make the point. Here ’s one circuit: “[E]ntitlements established by collective bargaining agreements do not survive their expiration or modification. . . . The mere silence of Collective Bargaining Agreements and plan documents concerning the vestment of welfare benefits fails to give rise to an ambiguity.” Senn v. United Dominion Indus., Inc. , 951 F.2d 806, 816 (7th Cir. 1992) (quotation omitted). And another: “Cont ractual vesting is a narrow doctrine. To prevail, Plaintiffs must a ssert strong prohibitory or granting language; mere silence is not of itself abrogation [of the right to alter health coverage].” Wise v. El Paso Nat.
Gas Co. , 986 F.2d 929, 938 (5th Cir. 1993). And another: “Promising to provide benefits for a certain period of time necessarily establishes th at once that time period expires, the promise doesNo. 15-2382 Reese, et al. v. CNH Indus. Page 24

as well. . . . Therefore, we conclude that th is provision unambiguously es tablishes that once the CBAs expired, Multifoods was free to re duce retiree medical benefits.” Am. Fed’n of Grain Millers v. Int’l Multifoods Corp. , 116 F.3d 976, 981 (2d Cir. 1997). And another: “The most natural reading of a co ntract that has defined endpoints of 1998 and 2001 is that terms in the contract apply to events between 1998 and 2001.” Des Moines Mailers Union, Teamsters Local No. 358 v. NLRB , 381 F.3d 767, 770 (8th Cir. 2004). A nd still another: “Silence on duration . . . may not be interpreted as an agreem ent by the company to vest retiree benefits in perpetuity.” UAW v. Skinner Engine Co. , 188 F.3d 130, 147 (3d Cir. 1999). And yet another: “The plain language of the CBA and SPD clearly i ndicates that the retire e health benefits did not vest [because the general durational clause] contai ns explicit durational la nguage stating that the retiree health benefits continue ‘f or the term of’ the governing CBA.” Barton , 851 F.3d at 354.

Either our circuit or the rest of the co untry is not applying “ordin ary principles of contract law” to these agreements. Tackett , 135 S. Ct. at 937. I fear that we, again, are out of step.
A last point, about the equities. No one lik es the thought of ending healthcare benefits for retirees who have worked for much of thei r lives and who may not be able to take on new jobs now. But it is by no means clear that this is what would happen if we followed Tackett and ruled that the benefits did not vest. The absence of a contra ctual right to lifetime healthcare does not mean that these retirees will not receive healthcare benefits. Even aside from existing federal healthcare programs, there’s no re ason to think that the incentiv es that drove the company and the union to agree repeatedly on retiree healthcare benefits in the past will cease to drive the parties to make similar arrangements in the futu re. During oral argument, CNH confirmed that it intended, if it prevailed on the vesti ng issue, to bring this class of retirees into a healthcare plan that mirrors the one offered to curre nt employees and more recent retirees . At stake, then, is the plaintiffs’ desire for better healthcare benefits than current employees and recent retirees. Whether that request is fair or not, equitable or not, it isn’t what this collective bargaining agreement provides.
For these reasons, I respectfully dissent.