UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

WILLARD L. SLOAN, EUGENE J.

WINNINGHAM, JAMES L. KELLEY, 

on behalf of themselves and a similarly 

situated class, Case No. 09-cv-10918

Hon. Paul D. Borman

Plaintiffs, Magistrate Mona K. Majzoub

v. Class Action

BORGWARNER, INC., BORGWARNER 

FLEXIBLE BENEFITS PLANS and

BORGWARNER DIVERSIFIED 

TRANSMISSION PRODUCTS, INC.,

Defendants.

_____________________________________________________________________________/

David R. Radtke (P47016)

Roger J. McClow (P27170)

Patrick J. Rorai (P65091)

KLIMIST, McKNIGHT, SALE, 

McCLOW & CANZANO, P.C.

Attorneys for Plaintiffs

400 Galleria Officentre, Suite 117

Southfield, MI 48034

248-354-9650; fax 248-354-9656

dradtke@kmsmc.com

rmcclow@kmsmc.com

prorai@kmsmc.com

Bobby R. Burchfield

Joshua D. Rogaczewski 

McDERMOTT WILL & EMERY

Attorneys for Defendants 

600 Thirteenth St., N.W.

Washington, D.C. 20005

202-756-8000; fax 202-756-8087

bburchfield@mwe.com

jrogaczewski@mwe.com

Elisa Angeli Palizzi (P52088)

MILLER, CANFIELD, PADDOCK

& STONE, P.L.C.

Attorneys for Defendants

150 W. Jefferson Avenue, Suite 2500

Detroit, MI 48226

313-496-7635; fax 313-963-6420

angeli@millercanfield.com

_____________________________________________________________________________/

PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY

2:09-cv-10918-PDB-MKM Doc # 120 Filed 05/14/13 Pg 1 of 5 Pg ID 7272
2

Plaintiffs, Willard L. Sloan, Eugene J. Winningham and James L. Kelley hereby notify the

Court of the Order & Opinion denying Defendants’ Motion for Summary Judgment, granting

Plaintiffs’ Motion for Summary Judgment and directing Defendants to reinstate Plaintiffs’ retiree

healthcare coverage in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied

Industrial and Service Workers International Union, et al. v. Kelsey-Hayes Company, Case No. 11-

15497 (E.D. Mich. April 24, 2013). (Ex. 1) This supplemental authority is directly relevant to

Plaintiffs’ pending Motion for Summary Judgment. 

BorgWarner has argued that it is entitled to summary judgment because the changes made

to Plaintiffs’ health care benefits in May 2009 were permissible under Reese, et al. v. CNH Am. LLC,

694 F.3d 681 (6th Cir. 2012) (Reese II). In Kelsey-Hayes Co., the district court distinguished the

holding in Reese II and instead relied upon Moore v. Menasha Corp., 690 F.3d 444, 459 (6th Cir.

2012). The district court in Kelsey-Hayes Co. specifically cited the Moore holding that:

By offering vested healthcare coverage to retired employees and their

spouses, and by agreeing that the CBAs could only be modified on

the signed, mutual consent of the parties, Defendant waived its ability

to unilaterally alter or terminate Plaintiffs’ healthcare coverage. (Ex.

1 p. 17)

The CBAs in Kelsey-Hayes Co., provided in part, that “options afforded the Company

concerning supplementation of the Program with state or federally provided benefits ‘shall not be

exercised except by mutual agreement between the Company and the Union.’” (Ex. 1 p. 16) The

CBA supplement in Kelsey-Hayes Co. also provided that if any benefits promised by the program

are not practicable or permitted, the company and the union must mutually agree to provide new

benefits and/or coverages that are closely related as possible and equivalent to those not provided.

2:09-cv-10918-PDB-MKM Doc # 120 Filed 05/14/13 Pg 2 of 5 Pg ID 7273
3

Id. The district court relied upon the “mutual agreement” language in concluding that the holding

of Moore, and not Reese II, was applicable. (Id. at p. 17)

Here, the Health Insurance Agreements (“HIAs”) negotiated between BorgWarner and the

UAW stated:

A. . . . If, as a result of such [federal or state] laws, the level of benefits provided

for any group of employees (including retired employees), or surviving

spouses, or their dependents, is generally lower than the corresponding level

of benefits hereunder, the Company upon mutual agreement with the Union

shall provide a plan of benefits which are supplementary to the benefits

provided by law to the extent necessary to make total benefits as nearly

comparable as practicable to the benefits provided hereunder with such

contributions by employees (including retired employees) or surviving

spouses as are mutually determined to be consistent with the contributions

specified hereunder.

B. The provisions of Paragraph A above to the contrary notwithstanding and

upon mutual agreement with the Union, the Company, if such laws permit,

may substitute a plan of benefits for the benefits provided by such laws and

modify the applicable provisions of this Agreement to the extent and in the

respect necessary to secure the approval of such substitution from the

appropriate governmental authority. The Company may make such plan

available to employees, (including retired employees) or surviving spouses

and their dependents and require from them such contributions as are

mutually determined to be consistent with the contributions established

hereunder. (emphasis added)

(Plaintiff MSJ Ex. 2, p. 15; Plaintiff MSJ Ex. 5, p. 13-14; Plaintiff MSJ Ex. 6, p. 13-14) 

The language in the HIAs in this case are nearly identical to the provisions relied upon by

the district court in Kelsey-Hayes Co. Therefore, the holding in Kelsey-Hayes Co., supra, is directly

on point. Like in Kelsey-Hayes Co., this Court should follow the holding of Moore because the

relevant collectively bargained HIAs preclude modifications to the health care provided to retirees,

surviving spouses and their dependents absent mutual agreement between the Company and the

Union.

2:09-cv-10918-PDB-MKM Doc # 120 Filed 05/14/13 Pg 3 of 5 Pg ID 7274
4

WHEREFORE, Plaintiffs respectfully request that the Court grant their Motion for Summary

Judgment. 

Respectfully submitted,

McKNIGHT, McCLOW, CANZANO, 

SMITH & RADTKE, P.C.

By: /s/ David R. Radtke 

 DAVID R. RADTKE (P47016)

 ROGER J. McCLOW (P27170)

 PATRICK J. RORAI (P65091)

 Attorneys for Plaintiffs

 400 Galleria Officentre, Suite 117

 Southfield, MI 48034

 (248) 354-9650

 dradtke@michworklaw.com

 rmcclow@michworklaw.com

 prorai@michworklaw.com

Dated: May 14, 2013

2:09-cv-10918-PDB-MKM Doc # 120 Filed 05/14/13 Pg 4 of 5 Pg ID 7275
CERTIFICATE OF SERVICE

I hereby certify that on May 14, 2013, I electronically filed the foregoing paper with the

Clerk of the Court using the ECF system which will serve it upon:

Bobby R. Burchfield

Joshua D. Rogaczewski 

Elisa Angeli Palizzi

Respectfully submitted,

McKNIGHT, McCLOW, CANZANO, 

SMITH & RADTKE, P.C.

By: /s/ David R. Radtke 

 DAVID R. RADTKE (P47016)

 ROGER J. McCLOW (P27170)

 PATRICK J. RORAI (P65091)

 Attorneys for Plaintiffs

 400 Galleria Officentre, Suite 117

 Southfield, MI 48034

 (248) 354-9650

 dradtke@michworklaw.com

 rmcclow@michworklaw.com

 prorai@michworklaw.com

P:\RHC Cases\BorgWarner\2009 MI Lawsuit\Pleadings\PLs SupplementalAuthority.wpd

2:09-cv-10918-PDB-MKM Doc # 120 Filed 05/14/13 Pg 5 of 5 Pg ID 7276