PRATER v. OHIO EDUC. ASS’N 437

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not intend for the courthouse doors to be

slammed shut, in such a wholesale fashion, with respect to determining arbitrability. Indeed, this Court cannot create

artificial jurisdictional limitations. Cf.

Jones v. Bock, ––– U.S. ––––, 127 S.Ct.

910, 919, 166 L.Ed.2d 798 (2007) (bluntly

reminding this Court that we cannot depart from usual practice on the basis of

‘‘perceived policy concerns’’).

The issue of arbitrability simply cannot

be insulated from judicial review where

not justified by the law, the particular

circumstances of the dispute, or the parties’ arbitration agreement. Again, the

outcome of this case broadly insulates arbitration decisions from judicial adjudication

even in the absence of any appropriate

legal justification. This outcome is particularly troublesome because this Court has

so sweepingly overruled Moog that parties’

express intent with respect to arbitration

will often be rendered meaningless. Under the majority’s formulation, arbitration

will be ordered so long as a party to the

dispute can point to the existence of an

arbitration agreement and demand arbitration even though the dispute at issue is

not remotely covered by the express terms

of the arbitration provision in the parties’

contract. Furthermore, under the majority’s approach, the arbitrator himself gets

to decide the issue of arbitrability as a

threshold matter—with little or no likelihood of judicial review or correction—even

when the parties’ dispute is not one which

is even arguably covered by the arbitration

agreement.

CONCLUSION

The parties in this case did not agree to

submit a dispute concerning timeliness to

an arbitrator. The majority improperly

compels the Defendant company to arbitrate where nothing in the collective bargaining agreement suggests that the parties intended an arbitrator to determine

the arbitrability of the underlying dispute.

For the foregoing reasons, I would affirm

the district court’s decision. I therefore

respectfully dissent.

,

James I. PRATER et al., Plaintiffs–

Appellants,

v.

OHIO EDUCATION ASSOCIATION,

Defendant–Appellee.

No. 06–4393.

United States Court of Appeals,

Sixth Circuit.

Argued: Sept. 13, 2007.

Decided and Filed: Oct. 3, 2007.

Background: Retirees filed class action

under Labor Management Relations Act

(LMRA) alleging that employer had violated collective bargaining agreements (CBA)

by unilaterally terminating their health

benefits. The United States District Court

for the Southern District of Ohio, Edmund

A. Sargus, Jr., J., 2006 WL 2815142, entered summary judgment in employer’s favor, and denied retirees’ motion for leave

to amend complaint. Retirees appealed.

Holdings: The Court of Appeals, Sutton,

Circuit Judge, held that:

(1) fact issues remained CBAs committed

employer to provide medical benefits

to retirees;

(2) reservation-of-rights language in summary plan descriptions (SPD) provided

by employer could not supersede

CBAs’ amendment provisions; and

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(3) district court did not abuse its discretion in denying retirees’ motion to

amend.

Affirmed in part, reversed in part, and

remanded.

1. Labor and Employment O1272, 1273

In interpreting collective bargaining

agreement, court considers agreement’s

language, context in which that language

appears, and other traditional canons of

construction, but if, after applying those

rules of interpretation, contract remains

ambiguous, court may permit parties to

introduce extrinsic evidence about their

original understanding of contract’s terms.

2. Federal Civil Procedure O2497.1

Genuine issue of material fact as to

whether explicit limitation in collective

bargaining agreement (CBA) of healthcare

benefits for retirees to ‘‘major-medical’’ indicated that employer did not commit to

provide lifetime prescription drug coverage as well precluded summary judgment

in retirees’ class action alleging that employer violated CBA by unilaterally terminating their prescription drug benefits.

3. Federal Civil Procedure O2497.1

Genuine issue of material fact as to

whether collective bargaining agreement

(CBA) terminated employer’s duty to provide medical benefits to retirees after age

sixty-five precluded summary judgment in

retirees’ class action alleging that employer violated CBA by unilaterally terminating their benefits.

4. Contracts O236

As general rule, existing contract cannot be unilaterally modified.

5. Labor and Employment O549(2)

Reservation-of-rights language in

summary plan descriptions (SPD) provided

by employer to its employees to explain

medical plans it provided pursuant to collective bargaining agreements (CBA) could

not supersede CBAs’ amendment provisions, where SPDs did not explicitly renounce CBAs or represent to retirees that

existing medical treatment could be cut

off, and CBAs agreements stated that they

represented full commitments between

parties and could not be amended without

signed, mutual consent.

6. Contracts O238(2)

When contract contains formal procedures requiring mutual, written assent to

amend, that language preempts future unilateral termination of rights.

7. Federal Civil Procedure O840, 1938.1

District court did not abuse its discretion, in retirees’ action under Labor Management Relations Act (LMRA) challenging employer’s unilateral termination of

medical benefits, in denying retirees’ motion to amend complaint to assert ERISA

violations, where retirees did not move to

amend until nine months after amendment

deadline created by magistrate judge’s

pretrial order, parties had fully briefed

summary judgment motions and exchanged substantial number of documents

through discovery, and retirees had sufficient information to bring ERISA claims

long before they filed their motion. Labor

Management Relations Act, 1947, § 1 et

seq., 29 U.S.C.A. § 141 et seq.; Employee

Retirement Income Security Act of 1974,

§ 2 et seq., 29 U.S.C.A. § 1001 et seq.;

Fed.Rules Civ.Proc.Rule 15, 28 U.S.C.A.

ARGUED: David M. Cook, Cook, Portune & Logothetis, Cincinnati, Ohio, for

Appellants. Rodger L. Eckelberry, Baker

& Hostetler, Columbus, Ohio, for Appellee.

ON BRIEF: David M. Cook, Robert E.

Rickey, Stephen A. Simon, Cook, Portune

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& Logothetis, Cincinnati, Ohio, for Appellant. Rodger L. Eckelberry, Manuel Jose

Asensio III, Baker & Hostetler, Columbus,

Ohio, for Appellee. Michael F. Saggau,

Daniel W. Sherrick, Associate General

Counsel, Detroit, Michigan, Lisa M. Smith,

Samuel C. McKnight, Klimist, McKnight,

Sale, McClow & Canzano, Southfield,

Michigan, for Amici Curiae.

Before: SUTTON and McKEAGUE,

Circuit Judges; FORESTER, District

Judge.*

OPINION

SUTTON, Circuit Judge.

James Prater and several other retired

employees of the Ohio Education Association (‘‘OEA’’) claim that OEA improperly

terminated their health benefits, which

(they say) had become vested and irreducible through a series of collective bargaining agreements. Relying in part on our

decision in Maurer v. Joy Technologies,

Inc., 212 F.3d 907 (6th Cir.2000), the district court rejected the claims as a matter

of law. Because we conclude that Maurer

does not apply here, because after-the-fact

unilateral summary plan descriptions cannot supercede the amendment provisions

in a collective bargaining agreement and

because the contracts are otherwise ambiguous about whether they promise lifetime, irreducible health benefits to employees upon their retirement, we reverse.

I.

In its capacity as a union, OEA represents teaching professionals throughout

Ohio. Unions are employers too, however,

and, in its capacity as an employer, OEA

employs numerous individuals who are

represented by two other unions: the Professional Staff Union (‘‘PSU’’) and the Ohio

Associate Staff Union (‘‘OASU’’). OEA

has negotiated several collective bargaining agreements with these unions, and

these agreements have provided for retiree healthcare benefits since 1978 for PSU

retirees and since 1981 for OASU retirees.

Plaintiffs Montgomery and Whaley, former

associate staff employees of OEA, retired

in 1999 and 2000, and they seek to represent a class of OASU retirees. Plaintiffs

Thorley, Prater and Westfall, former professional employees of OEA, retired between 1984 and 1994, and they seek to

represent a class of PSU retirees.

The OASU Agreements. When Montgomery and Whaley retired, the collective

bargaining agreement for OASU employees said that it represented ‘‘the full and

complete commitments between both parties and [could] be altered TTT only

through the voluntary, mutual consent of

the parties in a written and signed amendment.’’ JA 1101. The agreement provided

active employees with medical insurance

covering ‘‘hospitalization; surgical; majormedical; out-patient X-ray; EKG; laboratory; prescription drug; dental; and optical.’’ JA 1080. Retirees, the agreement

said, ‘‘shall be included in the Association

group in regard to: hospitalization; surgical; out-patient; and major-medical coverage,’’ but, ‘‘[a]fter the retiree reaches age

65, the Association is required to provide

only major-medical coverage.’’ JA 1086.

The collective bargaining agreement also

required the company to give each employee ‘‘an individual contract guaranteeing the

retiree health benefits at the time of retirement.’’ Id.

The PSU Agreements. Like the OASU

contract, the PSU collective bargaining

* The Honorable Karl S. Forester, Senior District Judge for the Eastern District of Kentucky, sitting by designation.

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agreements in force when Prater, Thorley

and Westfall retired provided that changes

could be made ‘‘only by an amendment

properly signed and ratified by each party.’’ JA 1387, 1501, 1566. The first provision for retiree benefits, in a subsection

entitled ‘‘Continuation of Benefits,’’ said

that ‘‘[t]he Association shall continue to

provide all benefits provided by Sections

11.0112 and 11.0113 of this Contract for

each retired employee to age sixty-five.’’

JA 1357 (Thorley); JA 1468 (Prater); see

also JA 1547–48 (Westfall). The next subsection, entitled ‘‘Reimbursement for Cost

of Medicare,’’ said that OEA ‘‘shall reimburse each retired employee over age sixty-five TTT for the cost of Medicare Part

B.’’ Id. And under the next subsection,

entitled ‘‘Supplement to Medicare,’’ the

agreement said that OEA ‘‘shall supplement the benefits of Medicare Parts A and

B to provide benefits at a level equal to

those benefits provided by Sections

11.0112 and 11.0113 of this Contract for

each retired employee to age sixty-five.’’

Id.

The Summary Plan Descriptions.

OEA, like other employers, distributes

summary plan descriptions to its employees to assist them in understanding the

more detailed, complex and formal plan

documents. Each of the summaries distributed to the plaintiffs contained reservation-of-rights clauses.

The summary distributed to the OASU

retirees provided: ‘‘Retired employees

may continue coverage, in accordance with

the collective bargaining agreementTTTT

While the employer expects retiree coverage to continue, the employer reserves the

right to modify or discontinue retiree coverage at any time.’’ JA 1832. Elsewhere

the OASU summary said that OEA ‘‘may

modify or amend the Plan from time to

time in accordance with the provision of

the collective bargaining agreement.’’ JA

1851.

The reservation-of-rights clauses in the

PSU summaries did not say that any modifications to benefits must be in accordance

with the bargaining agreements. ‘‘The

Plan Administrator,’’ they said, ‘‘may

change or eliminate benefits under the

plan and may terminate the entire plan or

any portion of it.’’ JA 1934 (Thorley); JA

1976 (Prater); see also JA 2045 (Westfall).

The Dispute. For two decades, OEA

provided most of its retirees with insurance to supplement Medicare after they

reached 65. On March 1, 2004, OEA sent a

letter to PSU employees informing them

that OEA would honor its ‘‘contractual

commitment[ ]’’ to reimburse retirees for

Medicare Part B but would no longer pay

for the ‘‘optional, supplemental coverage’’

it had been providing. JA 98. That same

day, OEA sent a similar letter to OASU

retirees, informing them that ‘‘OEA’s obligation to provide coverage ceases’’ when

each retiree reaches the age of 65. JA

138. On August 31, 2004, OEA terminated

the retirees’ supplemental coverage.

The OASU and PSU retirees filed this

class action under Section 301 of the Labor

Management Relations Act, claiming that

the union had violated the collective bargaining agreements. OEA moved for

summary judgment on the PSU retirees’

claims for post–65 supplemental insurance,

and it moved for summary judgment or

partial summary judgment on the OASU

retirees’ claims for prescription drug, surgical, hospitalization and outpatient coverage. After the parties had filed their summary judgment papers, the retirees sought

leave to amend their complaint to add

several ERISA claims.

The district court held that the contracts

unambiguously excluded the sought-after

coverage. It reasoned that the ‘‘to age 65’’

clause in the PSU agreement ‘‘indicates a

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limitation on coverage available and is not

at all ambiguous.’’ D. Ct. Op. at 11. And

it reasoned that the OASU agreement contained a ‘‘limitation on coverage [that]

could not be more clear or unambiguous.’’

Id. at 12. The court also held that the

plan summaries reserved to OEA an unqualified right to alter or terminate the

retirement benefits under Maurer, 212

F.3d at 919, and ultimately granted OEA’s

motion for summary judgment on all

claims. D. Ct. Op. at 15–16. The court

denied the retirees’ motion for leave to

amend because the litigation was at an

advanced stage.

II.

At the same time that ERISA carefully

regulates the vesting of pension benefits, it

leaves the decision of whether employers

will provide employees with healthcare

benefits upon retirement to contract—a

contract that may come in the form of a

collective bargaining agreement, an at—

will employment relationship or something

in between. See UAW v. Yard–Man, Inc.,

716 F.2d 1476, 1479 (6th Cir.1983);

Sprague v. Gen. Motors Corp., 133 F.3d

388, 400 (6th Cir.1998); Yolton v. El Paso

Tenn. Pipeline Co., 435 F.3d 571, 579–80

(6th Cir.2006). In the past, the application

of ‘‘ordinary principles of contract interpretation’’ to these different types of

agreements, Yolton, 435 F.3d at 580, has

raised a host of perplexing questions:

What is required to establish an employer’s commitment to provide lifetime benefits to retirees? What exactly are lifetime

healthcare benefits? Does a promise of

lifetime benefits mean that they cannot be

reduced over the life of a retiree? What if

the employer reduces health benefits for

active employees or increases the cost of

those benefits to active employees? What

if the employer increases some health benefits for active employees but reduces others? Must the retiree take the bitter with

the sweet? Or is it a ratchet—with only

the improvements in health benefits available to the retiree but with no compulsion

to take any reduction?

Happily for us, this case sidesteps these

questions—at least for now. OEA concedes that, in the absence of a right to

terminate retiree benefits under the reservation-of-rights clauses in the summary

plan descriptions, a fact dispute exists over

whether the retiree benefits provided for

in the collective bargaining agreements

survive the term of the agreements. That

leaves two related but distinct disputes for

us to resolve: (1) Are the retirees’ claimed

benefits among those enumerated in the

collective bargaining agreements? (2) Did

OEA’s plan summaries give the union the

right to terminate any health benefits provided for in the collective bargaining

agreements?

A.

[1] In interpreting collective bargaining agreements, we consider the language

of the agreement, the context in which that

language appears and other traditional

canons of construction. McCoy v. Meridian Auto. Sys., 390 F.3d 417, 422 (6th Cir.

2004). If, after applying these rules of

interpretation, the contract remains ambiguous, we permit the parties to introduce

extrinsic evidence about their original understanding of the contract’s terms. Id.

1.

At issue with respect to the OASU retirees is whether OEA committed to provide

them with lifetime prescription drug benefits. In concluding that OEA made no

such promise, the district court accepted

the following chain of reasoning: (1) when

the OASU retirees left active employment,

the collective bargaining agreement said

that, ‘‘[a]fter the retiree reaches age 65,

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the Association is required to provide only

major-medical coverage,’’ JA 1086; (2) the

benefits provided to active employees under the collective bargaining agreement at

that time fell into distinct categories:

‘‘hospitalization; surgical; major-medical;

out-patient X-ray; EKG; laboratory; prescription drug; dental; and optical,’’ id. at

1080 (emphases added); and (3) the independent provision for ‘‘prescription drug’’

and ‘‘major-medical’’ coverage for active

employees suggests that, when OEA said

it would ‘‘provide only major-medical coverage’’ for retirees, it would not provide

prescription drug coverage for them.

In one sense, we accept this chain of

reasoning as well. The explicit limitation

of healthcare benefits for retirees to ‘‘major-medical’’ plainly indicates that OEA did

not commit to provide ‘‘prescription drug’’

coverage as well. But this limitation

means only that the promise of majormedical coverage does not include the formal package of benefits provided under

the ‘‘prescription drug’’ heading in the

agreement. It does not mean that ‘‘majormedical’’ may never include prescription

drugs. It shows only that major-medical

insurance should not be interpreted to provide the retirees the same level of prescription drug coverage they had enjoyed

prior to age 65. When retirees suffer a

‘‘major-medical’’ illness or injury, the contract is at least ambiguous as to whether

OEA will provide the retirees with coverage for the drugs necessary to treat that

condition.

[2] The OASU retirees have presented

extrinsic evidence backing up this position.

Although the retirees’ summary plan description also contains a section for a ‘‘Prescription Drug Program,’’ JA 1823, distinct

from the section for ‘‘Major Medical Benefits,’’ JA 1816, the major-medical section

explicitly provides some coverage for ‘‘prescription drugs as specified in the Schedule of Benefits,’’ JA 1820. Notes from the

contract negotiations also indicate that

drug and major-medical coverages overlap.

In the face of this language of the agreement and this extrinsic evidence, summary

judgment cannot be granted to OEA solely

on the basis of the scope of benefits outlined in the collective bargaining agreement.

2.

The pertinent PSU collective bargaining

agreement’s provision for post–65 retiree

benefits also raises material ambiguities.

Here are the relevant provisions:

11.0141 Continuation of Benefits

The Association shall continue to provide all benefits provided [for active

employees] by Sections 11.0112 and

11.0113 of this Contract for each retired employee to age sixty-five (65).

11.0142 Reimbursement for Cost of

Medicare

The Association shall reimburse each

retired employee over age sixty-five

(65) for the cost of Medicare Part B.

11.0143 Supplement to Medicare

The Association shall supplement the

benefits of Medicare Parts A and B to

provide benefits at a level equal to

those benefits provided by Sections

11.0112 and 11.0113 of this Contract

for each retired employee to age sixty-five (65).

JA 1357; JA 1468; JA 1547–48.

The question, as framed by the parties,

is whether the clause ‘‘to age sixty-five’’ in

the ‘‘Supplement to Medicare’’ subsection

cuts off coverage after age 65. As OEA

sees it, the ‘‘to age sixty-five’’ clause in

the ‘‘Continuation of Benefits’’ subsection

plainly places a limit on liability and accordingly the same clause must be read

the same way in the ‘‘Supplement to

Medicare’’ subsection. The PSU retirees

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respond that the latter half of the ‘‘Supplement to Medicare’’ subsection must be

interpreted as a comparative clause under

which OEA commits to provide retirees

with coverage ‘‘equal to’’ that which they

had been given up ‘‘to age sixty-five.’’

Although courts ‘‘should construe terms

so as to render none nugatory and avoid

illusory promises,’’ McCoy, 390 F.3d at 422

(internal quotation marks omitted), the

task is not always that easy: Inartful

drafting sometimes leaves courts with

competing interpretations that both render

other provisions of the contract superfluous or at least awkward. This is such a

case. On the one hand, the retirees’ interpretation renders the same phrase—‘‘to

age sixty five’’—as a limit on coverage in

one subsection and almost meaningless

two subsections later. On the other hand,

OEA’s interpretation creates problems of

its own. Reading ‘‘to age sixty-five’’ to cut

off coverage at 65 in both provisions renders the promise of a ‘‘Supplement to

Medicare’’ meaningless because the ‘‘Continuation of Benefits’’ subsection already

promises PSU retirees that same level of

coverage up to age 65. Although OEA

hypothesizes that this provision allows

them to take advantage of government

benefits to fulfill that duty, the ‘‘Supplement to Medicare’’ provision is structured

as an obligation rather than something the

union may do. As a general rule, moreover, only people with disabilities may receive Medicare before age 65, and OEA’s

interpretation renders a subsection that

appears to be applicable to all retirees

relevant only to a small subset of them.

Also supporting the retirees’ reading is the

fact that all of the language following the

‘‘equal to’’ phrase parrots the language in

the ‘‘Continuation of Benefits’’ subsection,

suggesting that the clause has a comparative, not a restrictive, purpose to it.

[3] As we see it, then, the agreement is

at least ambiguous when it comes to

whether it provides post–65 supplemental

insurance. The extrinsic evidence—the affidavits submitted by the retirees and

OEA’s consistent practice of providing

supplemental insurance—sufficiently supports the PSU retirees’ position to raise a

material factual dispute over the meaning

of the pertinent contract.

B.

The district court also held that OEA

reserved the right to terminate or modify

benefits through several summary plan descriptions. We disagree.

[4] As a general rule, ‘‘an existing contract cannot be unilaterally modified.’’

Baptist Physician Hosp. Org., Inc. v. Humana Military Healthcare Servs., Inc.,

481 F.3d 337, 350 (6th Cir.2007); see also

Nagle Heating & Air Conditioning Co. v.

Heskett, 66 Ohio App.3d 547, 585 N.E.2d

866, 868 (1990) (‘‘A contract cannot be

unilaterally modified.’’); 17A C.J.S. Contracts § 410 (‘‘A signed contract TTT cannot be changed without the consent or

subsequent agreement of the parties.’’).

Were it otherwise, the option of either

party to modify a contract unilaterally

would defeat the essential purpose of

reaching an agreement in the first place—

to bind the parties prospectively.

This principle applies with equal force to

collective-bargaining agreements, where

employers are statutorily barred from effectuating ‘‘unilateral modification[s] of TTT

existing collective bargaining agreement[s].’’ N.L.R.B. v. Ford Bros., Inc.,

786 F.2d 232, 233 (6th Cir.1986) (per curiam). Even when an employer enters

bankruptcy, the law ‘‘prohibits the employer from unilaterally modifying any provision of the collective bargaining agreement.’’ In re Unimet Corp., 842 F.2d 879,

884 (6th Cir.1988); see 11 U.S.C. § 1113.

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One of our decisions, Maurer, complicates matters. There, we held that a summary plan description, issued after a collective bargaining agreement had been

signed, prevented retiree benefits from

vesting because it reserved the right of the

employer to ‘‘curtail or eliminate coverage

for any treatment, procedure, or service

regardless of whether [the employee is

currently] receiving treatment.’’ Maurer,

212 F.3d at 913. Because the reservation

of rights was conspicuous and unqualified,

we held, ‘‘the Union was obligated to

grieve or enter suit’’ if it disagreed with

the employer’s assertion of authority—

even if that assumption of authority came

after the effective date of the relevant

collective bargaining agreement. Id. at

919 (internal quotation marks omitted).

In McCoy, we limited Maurer to ‘‘unqualified reservation-of-rights language,’’

390 F.3d at 424, that claims a ‘‘unilateral

right by the employer to terminate coverage without regard to existing or future

collective bargaining agreements,’’ id. at

425. Because the summary at issue in

McCoy said that any ‘‘termination’’ of benefits was ‘‘subject to the provisions of any

applicable collective bargaining agreement,’’ we held that it could not ‘‘fairly TTT

have prompted the union immediately to

protest.’’ Id. at 425 (internal quotation

marks omitted). McCoy, we acknowledge,

involved a preliminary-injunction decision

and thus turned on our review of a likelihood-of-success determination, not a final

merits determination. But we stand by

this clarification of Maurer because a

broad reading of the decision would run

headlong into the rule that a plan summary ‘‘cannot vitiate contractually vested

or bargained-for-rights.’’ Halliburton Co.

Benefits Comm. v. Graves, 463 F.3d 360,

378 (5th Cir.2006) (‘‘[A] reservation-ofrights clause in a plan document, which

allows a company to amend or terminate a

plan at any time, cannot vitiate contractually vested or bargained-for rights.’’) (internal quotation marks omitted). To our

knowledge, no court of appeals has forced

unions to file grievances in the face of a

summary plan description that purported

to remove a promise of lifetime health

benefits.

[5] As in Maurer, OEA’s summary

plan descriptions contained reservation-ofrights language. See JA 1832 (OASU

summary stating that ‘‘[w]hile the employer expects retiree coverage to continue,

the employer reserves the right to modify

or discontinue retiree coverage at any

time’’); JA 1934 (PSU summary reserving

the right to ‘‘change or eliminate benefits

under the plan and TTT terminate the entire plan or any portion of it’’). But unlike

Maurer, these clauses were not sufficiently

unqualified to ‘‘fairly TTT have prompted

the union immediately to protest.’’

McCoy, 390 F.3d at 425. As in McCoy,

neither summary explicitly represented to

the retirees that existing medical treatment could be cut off, as the summary in

Maurer did. See id. at 424. And as in

McCoy, the OASU summary explicitly

claimed to be established ‘‘in accordance

with a collective bargaining agreement,’’

JA 1801, and referenced the bargaining

agreement every time it mentioned potential modifications.

[6] Perhaps most importantly, both the

PSU and OASU agreements say that the

contracts represent the full commitments

between the parties and that the agreements cannot be amended without signed,

mutual consent, a clause never mentioned,

much less discussed, with respect to the

Maurer collective bargaining agreement.

When a contract contains formal procedures requiring mutual, written assent to

amend, that language preempts future unilateral termination of rights. See Pleasantview Nursing Home, Inc. v. N.L.R.B.,

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Cite as 505 F.3d 437 (6th Cir. 2007)

351 F.3d 747, 754 (6th Cir.2003) (holding

that oral modification of a collective bargaining agreement was ineffective in the

presence of ‘‘an express zipper clause prohibiting modification except by written

agreement’’); Martin Marietta Energy

Sys., Inc. v. N.L.R.B., No. 87–5369, 1988

WL 24225, at *3–4 (6th Cir. Mar.17, 1998)

(per curiam) (affirming NLRB’s finding of

unfair labor practice when an employer’s

‘‘unilateral action’’ breached a collective

bargaining agreement’s formal amendment

clause and rejecting an argument that the

union waived its right to complain through

inaction). On this record, the unions thus

could not fairly be ‘‘compelled to protest

the SPD language,’’ McCoy, 390 F.3d at

425—at least when the summary does not

explicitly renounce the collective bargaining agreement—because both sets of contracts explicitly said that their bargainedfor rights could not be terminated in such

a manner. The summaries instead serve

as extrinsic evidence regarding the extent

of the employer’s promise of future healthcare benefits and whether the parties intended the benefits to vest. See Yard–

Man, 716 F.2d at 1481–82. They cannot,

however, be interpreted to permit the unilateral termination of these alleged contractual rights.

III.

The retirees also challenge the district

court’s denial of their motion for class

certification and their motion to amend

their complaint. As to the first motion,

the court premised its denial of the classcertification motion on its summary judgment decision. D. Ct. Op. at 16. We

accordingly remand the case to the district

court to address class certification in the

first instance.

[7] As to the second motion, the district court did not abuse its discretion.

See Leary v. Daeschner, 349 F.3d 888, 904

(6th Cir.2003) (‘‘Denial of a motion for

leave to amend is reviewed by this court

for an abuse of discretion.’’). Leave to

amend, it is true, should be ‘‘freely given

when justice so requires,’’ but it can be

denied on the basis of ‘‘undue delay, bad

faith or dilatory motive TTT [or] futility of

amendment.’’ Foman v. Davis, 371 U.S.

178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962)

(internal quotation marks omitted); see

also Fed.R.Civ.P. 15. And our court, it is

also true, has required ‘‘at least some significant showing of prejudice’’ to deny a

motion to amend based solely upon delay.

Moore v. City of Paducah, 790 F.2d 557,

562 (6th Cir.1986) (per curiam). Taken

together, however, the retirees’ delay, the

late stage of the case when the motion was

filed and the likely futility of any amendment show that the district court acted

well within its discretion.

The timing of the motion undermines

plaintiffs’ position. They moved for leave

to amend on January 13, 2006, nine

months after the amendment deadline created by the magistrate judge’s pretrial

order. By the time the retirees filed the

motion, the parties had fully briefed the

summary judgment motions and exchanged a substantial number of documents through discovery. Even if the retirees were not aware of their potential

ERISA claims at the outset of the litigation, they had sufficient information to

bring these claims long before they filed

their motion.

The requested amendment also would

have added little, if any, value to their

complaint. The retirees acknowledge that

their proposed ERISA claim ‘‘parallel[s]’’

their existing LMRA claim, Br. at 43, because the two claims rise or fall on the

same contractual terms, see Teamster’s

Local 348 Health & Welfare Fund v. Kohn

Beverage Co., 749 F.2d 315, 317 n. 2 (6th

Cir.1984) (noting that, where an obligation

2:09-cv-10918-PDB-MKM Doc # 101-14 Filed 05/14/12 Pg 9 of 10 Pg ID 4568
446 505 FEDERAL REPORTER, 3d SERIES

arises ‘‘under the collective bargaining

agreement[,] TTT the inquiry relative to

both the LMRA claims and ERISA claims

is identical’’). To the extent the retirees

hope to raise distinct breach-of-fiduciaryduty claims under ERISA, that claim almost assuredly would be futile. See Curtiss–Wright Corp. v. Schoonejongen, 514

U.S. 73, 78, 115 S.Ct. 1223, 131 L.Ed.2d 94

(1995) (‘‘[A] company does not act in a

fiduciary capacity when deciding to amend

or terminate a welfare benefits plan.’’)

(quoting Adams v. Avondale Indus., Inc.,

905 F.2d 943, 947 (6th Cir.1990)).

IV.

For these reasons, we reverse the district court’s grant of summary judgment,

affirm its denial of the plaintiffs’ motion to

amend their complaint and remand for further proceedings.

,

Brenda MURPHY, Plaintiff–Appellant,

v.

Linda COCKRELL, Defendant–

Appellee.

No. 06–5897.

United States Court of Appeals,

Sixth Circuit.

Submitted: Sept. 14, 2007.

Decided and Filed: Oct. 4, 2007.

Rehearing Denied Oct. 30, 2007.

Background: Former employee of county

property valuation office brought action

against the administrator alleging violations of the First, Fourth, and Fourteenth

Amendments and wrongful discharge arising from dismissal. The United States District Court for the Eastern District of

Kentucky, Karl S. Forester, J., granted

summary judgment in favor of administrator. Employee appealed.

Holdings: The Court of Appeals, Boyce F.

Martin, Jr., Circuit Judge, held that:

(1) employee engaged in protected speech

when she campaigned for herself;

(2) administrator’s interest in eliminating

tension in office did not outweigh employee’s free speech interests in campaigning for herself;

(3) deputy administrator position did not

fall within political patronage exception

to First Amendment protection of public employees; and

(4) employee had no protected property

interest under the Fourteenth Amendment.

Affirmed in part, reversed in part, and

remanded.

Ralph B. Guy, Jr., Circuit Judge, filed

opinion concurring in part and dissenting

in part.

1. Constitutional Law O1929, 1934

To demonstrate First Amendment

protection, a public employee must show

(1) that the speech at issue addresses a

matter of public concern, and (2) that the

employer had no overriding state interest

in efficient public service that would be

undermined by the speech. U.S.C.A.

Const.Amend. 1.

2. Constitutional Law O1937

 Taxation O2437

Employee of county property valuation office, who was also candidate for

position of county property valuation administrator, engaged in protected speech

when she campaigned for herself by calling

into question current administrator’s expe2:09-cv-10918-PDB-MKM Doc # 101-14 Filed 05/14/12 Pg 10 of 10 Pg ID 4569