548 520 FEDERAL REPORTER, 3d SERIES

Page relies above, the district court confirmed that Page understood the rights he

would be giving up, including the right to a

jury trial, the right to an attorney, and the

right to confront witnesses at the trial.

Most importantly, the district court instructed the government to ‘‘articulate for

the record the summary of the evidence if

this case went to trial.’’ Following the

district court’s instruction, the government

read into the record the facts, summarized

at the beginning of this opinion, detailing

Page’s alleged involvement in the scheme

to import cocaine into the United States.

The district court then asked Page if he

understood the evidence that the government planned to prove at trial against him,

to which Page answered in the affirmative.

The district court asked Page if he had

anything else to add, to which Page’s attorney offered a small correction to the

facts read by the government. Only after

this factual basis was determined, and only

after ensuring that Page understood the

rights he was giving up and the charge

against him, did the district court accept

Page’s plea of guilty pursuant to the plea

agreement.

While less than a model of clarity, the

totality of the record supports the government’s argument that the district court

established a factual basis for Page’s guilty

plea, and that Page understood the nature

of the charge to which he pled guilty.

Accordingly, we find that Page has failed

to meet the high burden required by the

plain-error standard of review governing

this case.

III.

Based on the foregoing, we AFFIRM

Page’s conviction.

,

Julius NOE; Ray Reynolds; Anna Mae

Wilder; Russell Bowman; Nancy

Hood; William Duncan, Plaintiffs–

Appellants,

v.

POLYONE CORPORATION,

Defendant–Appellee.

No. 07–5068.

United States Court of Appeals,

Sixth Circuit.

Argued: Sept. 13, 2007.

Decided and Filed: March 19, 2008.

Rehearing and Rehearing En Banc

Denied June 2, 2008.

Background: Retirees sued employer, alleging that employer’s unilateral changes

to retiree health benefit plans violated the

governing collective bargaining agreements (CBAs) and violated Labor Management Relations Act (LMRA). The United

States District Court for the Western District of Kentucky, John G. Heyburn, II,

Chief Judge, 2006 WL 3759601, granted

summary judgment for employer, and retirees appealed.

Holdings: The Court of Appeals,

McKeague, Circuit Judge, held that:

(1) memorandum of understanding (MOA)

executed by employer and union

served to incorporate retiree health

benefits plan in effect for employees at

employer’s other plants;

(2) general durational language in MOA

did not preclude parties’ intent that

retiree health benefits vest;

(3) durational language in text of employee health benefit plans likewise did not

preclude intent that retiree health benefits vest;

(4) language in employee health benefit

plans tying eligibility for retiree health

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benefits to eligibility for pension

weighed in favor of finding intent to

vest;

(5) promise of lifetime special Medicare

benefit weighed in favor of finding intent to vest; and

(6) absence of explicit vesting language

concerning retiree health benefits did

not preclude intent to vest.

Vacated and remanded.

Sutton, Circuit Judge, filed opinion concurring in part and dissenting in part.

1. Labor and Employment O548, 549(1)

While pension plans are subject to

mandatory vesting, welfare benefit plans

are not.

2. Labor and Employment O426, 549(1)

Retiree health benefit plans are welfare benefit plans; thus, vesting only occurs if parties so intended when they executed applicable labor agreements.

3. Labor and Employment O549(1)

Court may find vested rights to health

benefit plan under collective bargaining

agreement (CBA) even if intent to vest has

not been explicitly set out in agreement.

4. Labor and Employment O450

If employees’ rights to health coverage have vested, employer’s unilateral termination of coverage violates LMRA; however, employer is free to terminate any

unvested welfare benefits upon expiration

of relevant collective bargaining agreement (CBA). Labor Management Relations Act, § 301, 29 U.S.C.A. § 185.

5. Labor and Employment O450, 549(1)

There is inference that retiree health

benefits were intended to vest, i.e. survive

expiration of governing collective bargaining agreement (CBA), if context and other

available evidence indicate such intent;

however, there is no legal presumption

that retiree benefits are interminable.

6. Labor and Employment O549(1)

When ambiguity exists in provisions of

collective bargaining agreement (CBA) regarding vesting of retiree health benefits,

resort to extrinsic evidence may be had to

ascertain whether parties intended vesting.

7. Labor and Employment O1280

As to collective bargaining agreement

(CBA) that did not specifically address

retiree health benefits, memorandum of

understanding (MOA) executed by employer and union, stating generally that employee health benefit plan ‘‘presently in

effect for the majority of [employer’s] production and maintenance employees’’

would henceforth be in effect for employees covered by CBA, served to incorporate, via parties’ course of conduct, retiree

health benefits plan in effect for employees

at employer’s other plants who were covered by other CBAs; employees covered

by MOA began to receive health benefits

conferred by other CBAs and continued to

receive them after retirement.

8. Labor and Employment O549(1)

Durational language in memorandum

of understanding (MOA) between employer and union, that employee health benefits plan incorporated by reference from

other collective bargaining agreements

(CBAs) would be ‘‘in effect for the life of

this agreement,’’ did not preclude finding

of parties’ intent that retiree health benefits vest, and in turn did not preclude

retirees’ LMRA suit against employer

challenging employer’s unilateral actions

concerning benefits; language was generic

and did not specifically state that retiree

health benefits would expire upon agreement’s termination. Labor Management

Relations Act, § 301, 29 U.S.C.A. § 185.

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550 520 FEDERAL REPORTER, 3d SERIES

9. Labor and Employment O549(1)

Durational language in text of employee health benefit plans, stating that ‘‘[e]ffective as of [date] and for the duration of

this agreement, [employer] will provide the

following plan TTT’’, did not preclude finding of parties’ intent that retiree health

benefits vest, and in turn did not preclude

retirees’ LMRA suit against employer

challenging employer’s unilateral actions

concerning benefits; language was general

and did not specifically refer to retiree

benefits. Labor Management Relations

Act, § 301, 29 U.S.C.A. § 185.

10. Labor and Employment O549(1)

Language in text of employee health

benefit plans tying eligibility for retiree

health benefits to eligibility for pension,

e.g. ‘‘ [e]mployees who retire and who are

eligible under [governing] agreement for a

pension TTT shall receive the benefits described,’’ weighed in favor of finding intent

that retiree health benefits vest, as required to support retirees’ LMRA suit

against employer challenging employer’s

unilateral actions concerning benefits. Labor Management Relations Act, § 301, 29

U.S.C.A. § 185.

11. Labor and Employment O549(1)

Language in text of employee health

benefit plans promising that once retiree

reached age 65 he or she would receive

special Medicare benefit until death, and

that upon death, retiree’s surviving spouse

would continue to receive same benefit

until his or her death or remarriage,

weighed in favor of finding intent that

retiree health benefits vest, as required to

support retirees’ LMRA suit against employer challenging employer’s unilateral

actions concerning benefits. Labor Management Relations Act, § 301, 29 U.S.C.A.

§ 185.

12. Labor and Employment O549(1)

Absence in text of employee health

benefit plans of explicit vesting language

concerning retiree health benefits, in contrast to presence of such language in relation to pension benefits, did not, by itself,

preclude finding of parties’ intent that retiree health benefits vest, and in turn did

not preclude retirees’ LMRA suit against

employer challenging employer’s unilateral

actions concerning benefits. Labor Management Relations Act, § 301, 29 U.S.C.A.

§ 185.

ARGUED: Thomas J. Schulz, Priddy,

Cutler, Miller & Meade, Louisville, Kentucky, for Appellants. Jack F. Fuchs,

Thompson Hine, Cincinnati, Ohio, for Appellee. ON BRIEF: Thomas J. Schulz,

Alton D. Priddy, Priddy, Cutler, Miller &

Meade, Louisville, Kentucky, for Appellants. Jack F. Fuchs, Eric S. Clark, Stephen L. Richey, Thompson Hine, Cincinnati, Ohio, for Appellee.

Before: SUTTON and McKEAGUE,

Circuit Judges; FORESTER, District

Judge.*

McKEAGUE, J., delivered the opinion

of the court, in which FORESTER, D.J.,

joined, SUTTON, J., (pp. 564–69),

delivered a separate opinion concurring in

part and dissenting in part.

OPINION

McKEAGUE, Circuit Judge.

This is a retiree health benefits case, in

which the court is asked to determine

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

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whether the parties to various labor agreements intended for retiree health benefits

to vest such that any termination of those

benefits constitutes a violation of § 301 of

the Labor Management Relations Act

(‘‘LMRA’’). The district court granted

summary judgment for defendant-employer PolyOne Corp. after concluding that the

labor agreements in question were unambiguous and established no intent to vest

retiree health benefits. Having conducted

a thorough review of the record and the

applicable law, we arrive at a different

conclusion and VACATE the district

court’s judgment.

I. BACKGROUND

Russell Bowman, William Duncan, Nancy Hood, Julius Noe, Ray Reynolds, and

Anna May Wilder, (‘‘Plaintiffs’’) are all retirees or the surviving spouse of a retiree

from B.F. Goodrich Co.’s Geon Vinyl Division (‘‘BFG’’), which through a series of

transactions became PolyOne Corp., the

defendant in this case (‘‘PolyOne’’). Plaintiffs or their deceased spouses all retired

between 1979 and 1990 from BFG’s Louisville, Kentucky, facility. While employed

with BFG, Plaintiffs were represented in

the collective bargaining process primarily

by the Distillery, Rectifying, Wine and Allied Workers’ International Union of

America, Local No. 72 (‘‘Union’’). During

this time period, the Union and BFG entered into various collective bargaining

agreements, none of which specifically addressed the issue of health benefits. Also

during this period, BFG negotiated a series of agreements with other unions that

represented employees working at facilities outside of Kentucky. These other

agreements, which were entitled ‘‘Agreements on Employee Benefit Programs’’

(‘‘EBAs’’), provided employee and retiree

health benefits to the applicable group of

employees. Per the terms of the EBAs,

retirees were not required to contribute to

their health insurance premiums, they

were reimbursed for Medicare Part B, and

they paid $1.00 for each prescription medication.

Plaintiffs maintain that the health benefits provided by the EBAs were extended

to them via a Memorandum of Agreement

(‘‘MOA’’) entered into by Plaintiffs’ union

and BFG. Effective in 1988, BFG replaced

the EBAs with a Flexible Benefit Program

(‘‘Flex Program’’). The Flex Program

slightly changed the health care coverage

available for active employees and those

who retired after August 1988. It is undisputed that Plaintiffs received the health

benefits described in the EBAs or the Flex

Program until March 2006, when PolyOne

ceased reimbursing Plaintiffs’ Medicare

Part B premiums, began requiring Plaintiffs to contribute towards their insurance

premiums, and instituted much higher prescription drug co-pays. Believing that PolyOne’s conduct violated the EBAs and the

Flex Program, Plaintiffs filed the instant

action under § 301 of the LMRA. Finding

that the EBAs and the Flex Program did

not manifest an intent to vest retiree

health benefits, the district court granted

summary judgment for PolyOne. Plaintiffs timely appealed.

II. ANALYSIS

A. Standard of Review and Applicable

Law

This court reviews a district court’s

grant of summary judgment de novo.

Nichols v. Moore, 477 F.3d 396, 398 (6th

Cir.2007). Likewise, de novo review applies to questions of contract interpretation. Yolton v. El Paso Tenn. Pipeline

Co., 435 F.3d 571, 577 (6th Cir.), cert.

denied, ––– U.S. ––––, 127 S.Ct. 554, 166

L.Ed.2d 410, and, 127 S.Ct. 555, 166

L.Ed.2d 410 (2006).

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[1–4] There are two types of employee

benefit plans: pension plans and welfare

benefit plans. Id. at 578. While pension

plans are subject to mandatory vesting,

welfare benefit plans are not. Maurer v.

Joy Technologies., Inc., 212 F.3d 907, 914

(6th Cir.2000). Retiree health benefit

plans, such as those involved here, are

welfare benefit plans; thus, vesting only

occurs if the parties so intended when they

executed the applicable labor agreements.

Id. A court may find vested rights ‘‘under

a CBA even if the intent to vest has not

been explicitly set out in the agreement.’’

Id. at 915. If the rights to health coverage

have vested, then the unilateral termination of the coverage violates § 301 of the

LMRA. Yolton, 435 F.3d at 578. On the

other hand, an employer is free to terminate any unvested welfare benefits upon

the expiration of the relevant CBA. Id.

[5] The seminal case for determining

whether the parties to a CBA intended

benefits to vest is UAW v. Yard–Man, 716

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

Yard–Man, basic rules of contract interpretation apply, meaning that courts must

first examine the CBA language for clear

manifestations of an intent to vest. Id.

Furthermore, each provision of the CBA is

to be construed consistently with the entire CBA and ‘‘the relative positions and

purposes of the parties.’’ Id. The terms of

the CBA should be interpreted so as to

avoid illusory promises and superfluous

provisions. Id. at 1480. Our decision in

Yard–Man also explained that ‘‘retiree

benefits are in a sense ‘status’ benefits

which, as such, carry with them an inference TTT that the parties likely intended

those benefits to continue as long as the

beneficiary remains a retiree.’’ Id. at

1482. With regard to the ‘‘Yard–Man inference,’’ later decisions of this court have

clarified that Yard–Man does not create a

legal presumption that retiree benefits are

interminable. Yolton, 435 F.3d at 579.

Rather, Yard–Man is properly understood

as creating an inference only if the context

and other available evidence indicate an

intent to vest. Id.

[6] When an ambiguity exists in the

provisions of the CBA, then resort to extrinsic evidence may be had to ascertain

whether the parties intended for the benefits to vest. Int’l Union, United Auto.

Aerospace & Agric. Implement Workers of

Am. v. BVR Liquidating, Inc., 190 F.3d

768, 774 (6th Cir.1999). If an examination

of the available extrinsic evidence fails to

conclusively resolve the issue and a question of intent remains, then summary judgment is improper. Int’l Union, United

Mine Workers of Am. v. Apogee Coal Co.,

330 F.3d 740, 744 (6th Cir.2003). Having

provided the broad analytical framework,

we now turn to the task of parsing the

language of the various agreements involved in this case.

With the exception of Plaintiff Hood, all

of the retirees involved in this case received the health benefits provided by the

various EBAs. Although Plaintiffs retired

under several different EBAs, we refer to

the EBAs collectively because each agreement contains the same language regarding the issues involved in this appeal. As

for Plaintiff Hood, the merits of her claim

will be discussed separately because the

Flex Program governs her retiree health

benefits.

B. Incorporation of the EBAs by the

MOA

[7] As a threshold matter, it is necessary to determine if the MOA incorporates

the health benefits provisions of the EBAs

to Plaintiffs. In the absence of incorporation, Plaintiffs’ claim fails because the

collective bargaining agreements negotiated between Plaintiffs and BFG are silent

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as to health benefits. The MOA states in

pertinent part:

The following Article is hereby included

in the current Collective Bargaining

Agreement:

The Pension Plan, including the requirement for compulsory retirement

at age seventy, the Hospitalization,

Surgical and Medical Expense Insurance Program TTT, and the Prescription Drug Program presently in effect

for the majority of The BFGoodrich

Company’s production and maintenance employees shall be in effect for

the life of this Agreement.

JA at 646. According to the district court,

while ‘‘the MOA is far from clear, the

parties appear to have intended that this

general reference incorporate the EBA

health benefit provisions.’’ Noe v. PolyOne Corp., No. 3:06–CV–170H, 2006 WL

3759601, at *3 (W.D.Ky. Dec. 19, 2006).

Disagreeing with the district court’s determination on this issue, PolyOne argues

that Plaintiffs have failed to offer any evidence—aside from anecdotes and hearsay—showing that the MOA incorporated

the EBAs to Plaintiffs. In response,

Plaintiffs argue that the parties’ course of

conduct illustrates that they intended for

the MOA to provide employees and retirees of BFG’s Louisville facility with the

health benefits found in the EBAs.

Based on our review of the MOA and

the conduct of the parties, the district

court correctly held that the MOA incorporated the EBAs to Plaintiffs. Because the

MOA itself is unclear on this issue, the

district court properly looked to extrinsic

evidence and the course of performance

between the parties in determining that

the MOA incorporated the EBAs. As the

district court recognized, the most telling

of this extrinsic evidence is the fact that

‘‘[e]veryone agrees that [Plaintiffs] actually

received the benefits described in the

EBAs and continued to receive them after

retirement.’’ Id. at *2. Although the

terms of the MOA undoubtedly could have

been more precise, the evidence establishes that it was intended by the parties

to apply the EBAs to Plaintiffs. Therefore, we proceed to analyze the EBA provisions themselves to determine whether

the district court properly found that

Plaintiffs’ retiree health benefits have not

vested.

C. The Vesting Determination

The district court held that the retiree

health benefits provisions in the EBAs

clearly and unambiguously established that

the parties did not intend for Plaintiffs’

health benefits to vest. Having examined

the language of the MOA and the EBAs,

this court finds that the district court improperly granted summary judgment in

favor of PolyOne for numerous reasons.

First, PolyOne’s argument that the MOA’s

language indicates that Plaintiffs’ health

benefits were not intended to vest fails.

Second, the durational provisions relied on

by PolyOne and the district court are general in nature and do not preclude a finding that the parties intended Plaintiffs’

benefits to vest. Third, provisions in the

EBAs expressly tie eligibility for retiree

health benefits to eligibility for a pension,

which we have repeatedly held evinces an

intent to vest. Fourth, adopting the interpretation urged by PolyOne and accepted

by the district court would render several

promises made in the EBAs illusory, a

result in violation of our precedent. Fifth,

the presence of specific vesting language

in the pension benefits portion of the

EBAs does not lead to the conclusion that

Plaintiffs’ health benefits have not vested.

1. The MOA Language does not Preclude a Finding that Plaintiffs’

Health Benefits were Intended to

Vest

[8] PolyOne argues that the MOA itself establishes that the parties never in2:09-cv-10918-PDB-MKM Doc # 101-13 Filed 05/14/12 Pg 6 of 22 Pg ID 4543
554 520 FEDERAL REPORTER, 3d SERIES

tended for Plaintiffs’ health benefits to

vest. PolyOne believes that the MOA negates any intent to vest because it limits

benefits to the duration of the agreement

and provides that the agreement may be

changed by subsequent negotiations.

The MOA states in pertinent part:

The Pension Plan, including the requirement for compulsory retirement at age

seventy, the Hospitalization, Surgical

and Medical Expense Insurance Program TTT, and the Prescription Drug

Program presently in effect for the majority of The BFGoodrich Company’s

production and maintenance employees

shall be in effect for the life of this

Agreement; provided that if during the

term of this Agreement the Plan or Programs are changed for such majority,

such changes shall be made effective on

the same date they are made effective

for the majority of The BFGoodrich production and maintenance employees and

remain in effect for the life of this

Agreement.

JA at 646 (emphasis added). PolyOne

first asserts that the italicized phrase

‘‘shall be in effect for the life of this Agreement’’ is a specific durational clause that

precludes a finding that Plaintiffs’ health

benefits have vested. Plaintiffs counter by

arguing that the provision is a general

durational clause and is insufficient to

demonstrate that retiree health benefits

have not vested. With regard to this issue, the district court agreed with Plaintiffs that the MOA’s durational clause was

general in nature. See Noe, 2006 WL

3759601, at *3 n. 7.

As explained in Yolton, ‘‘[a]bsent specific

durational language referring to retiree

benefits themselves, courts have held that

the general durational language says nothing about those retiree benefits.’’ Yolton,

435 F.3d at 581. In Yolton, the court

concluded that a provision stating that the

‘‘group insurance plan will TTT run concurrently with this Agreement’’ was a general

durational clause and did not preclude a

finding that retiree health benefits had

vested. Id. Like the agreement in Yolton,

there is no language in the MOA specifically stating that retiree health benefits expire upon the termination of the agreement. It speaks generically of all benefits

for all employees; language that does not

constitute a specific durational clause under our precedent. See id.; see also

Maurer, 212 F.3d at 917–18 (finding that a

CBA termination clause was not a specific

durational clause because it did not specifically reference retiree benefits).

PolyOne’s reliance on Linville v. Teamsters Misc. & Indus. Workers Union, Local 284, 206 F.3d 648, 650 (6th Cir.2000),

for the proposition that the MOA language

is a specific durational clause is misplaced.

In Linville, the clause at issue expressly

stated that health insurance under the

company’s plan ‘‘ceases when the individual reaches age sixty-five.’’ Linville, 206

F.3d at 649. No such language is present

in this case, and there is no discussion in

Linville regarding whether a clause such

as that contained in the MOA is a general

or specific durational provision. Linville

is also distinguishable because the agreement there stated that no individuals were

to receive health benefits after attaining

age sixty-five. Id. Instead, as in Yard–

Man and Maurer, the opposite is true in

this case; the EBAs actually contain language indicating that certain health benefits start at age sixty-five and last until

death. See § 12.15(h), JA at 185. Because the MOA language is analogous to

that used in Yolton, and Linville does not

apply, we reject PolyOne’s argument and

find that the MOA provision is a general

durational clause that does not preclude a

finding that Plaintiffs’ health benefits have

vested.

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PolyOne next argues that the MOA’s

statement that ‘‘if during the term of this

Agreement the Plan or Programs are

changed for such majority, such changes

shall be made effective on the same date

they are made effective for the majority’’

of BFGoodrich employees at other facilities, precludes a finding that Plaintiffs’

health benefits have vested. According to

PolyOne, this language authorizes it to

alter Plaintiffs’ health benefits at any time;

therefore, such benefits have not vested.

While construing the MOA in this manner has some merit on the surface, a close

examination of the entirety of the MOA

highlights the error in such an interpretation. The MOA provision at issue begins

with the words ‘‘[t]he Pension Plan, including TTT the Hospitalization, Surgical

and Medical Expense Insurance Program

TTT, and the Prescription Drug Program.’’

JA at 646 (emphasis added). Looking to

the specific language relied on by PolyOne,

the MOA states ‘‘provided that if during

the term of this Agreement the Plan or

Programs are changed for such majority,

such changes shall be made effective’’ for

Plaintiffs. It is apparent that the use of

the word ‘‘Plan’’ in the latter sentence

refers back to the phrase ‘‘Pension Plan’’

in the former sentence, while the word

‘‘Program’’ in the latter sentence refers

back to the former phrase ‘‘Hospitalization, Surgical and Medical Expense Insurance Program TTT and the Prescription

Drug Program.’’ Adopting PolyOne’s construction that by permitting the company

to make changes to the agreements, the

MOA language negates any intent to vest

retiree health benefits, would necessarily

lead to the conclusion that the benefits

provided by the pension plan are subject

to change and not vested.

According to Yolton, such an argument

fails ‘‘because the same language was used

regarding pensions and health benefits TTT

[g]iven the defendant’s logic, because its

pension plan was incorporated into the collective bargaining agreement, its obligation

to provide pensions ended with the expiration of the agreement.’’ Yolton, 435 F.3d

at 581 n. 7 (quoting to the district court’s

opinion in Golden). As Yolton seems to

have implicitly recognized, such a result is

forbidden by ERISA, which requires that

pension benefits automatically vest. See

Yolton, 435 F.3d at 580–81; see also

Maurer, 212 F.3d at 914 (stating that pension plans are subject to mandatory vesting under ERISA). Given that pension

benefit plans cannot be changed in the

manner PolyOne’s interpretation would

suggest, it follows that the MOA language

at issue does not establish that Plaintiffs’

health benefits under the ‘‘Program’’ were

not intended to vest.

2. Sections 12.1 and 16.4 of the EBAs

are General Durational Clauses

[9] Similar to its MOA arguments, PolyOne’s primary assertion as it relates to

the EBAs is that language found in § 12.1

and § 16.4 of the EBAs specifically limits

the availability of retiree health benefits to

the duration of the EBAs. Unlike the district court—which adopted this line of reasoning—we are not persuaded. As previously explained with regard to the MOA

durational clause, ‘‘[a]bsent specific durational language referring to retiree benefits themselves’’ a general durational

clause says nothing about the vesting of

retiree benefits. Yolton, 435 F.3d at 581.

According to our opinion in Yolton, such

general

durational language only affects future

retirees—that is, someone who retired

after the expiration of a particular CBA

would not be entitled to the previous

benefits, but is rather entitled only to

those benefits newly negotiated under a

new CBA. Thus, the retirement package

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556 520 FEDERAL REPORTER, 3d SERIES

tirement will change with the expiration

and adoption of CBAs, but someone already retired under a particular CBA

continues to receive the benefits provided therein despite the expiration of the

agreement itself.

Id. at 581; see also Maurer, 212 F.3d at

917–18 (explaining that ‘‘general durational

provisions TTT are not clearly meant to

include retiree benefits’’).

In an unpublished case involving language virtually identical to that found in

§ 12.1 of the EBAs, we concluded that the

provision was general in nature and did

not preclude a finding that retiree benefits

had vested. See Int’l Union, United

Auto., Aerospace & Agric. Implement

Workers of Am. v. Loral Corp., 107 F.3d

11, 1997 WL 49077, at *3 (6th Cir.1997)

(unpublished table decision). The CBA at

issue in Loral contained an introductory

clause in the benefits portion of the agreement, which stated: ‘‘Effective August 12,

1988, and for the duration of this Agreement thereafter, the Employer will provide

the following Program of hospital benefits,

hospital-medical benefits, surgical benefits

and prescription drug benefits.’’ Id.

There, as here, the employer argued that

the introductory clause limited its obligation to provide retiree benefits to the

duration of the CBA. Id. And there, as

here, we were not persuaded. According

to the Loral court, the introductory clause

was a general durational provision that did

not limit retiree health benefits to the

duration of the CBA. See id. at *3.

Similarly, in Weimer v. Kurz–Kasch,

Inc., 773 F.2d 669, 675–76 (6th Cir.1985),

this court analyzed a durational provision

stating that ‘‘this Agreement and all terms

and conditions hereof shall terminate as of

the end of the term.’’ The Weimer court

held that the quoted language constituted

a ‘‘general termination clause [that] does

not support a finding that retiree benefits

ended when the agreements expired.’’ Id.

at 676; see also BVR Liquidating, Inc.,

190 F.3d at 774 (finding that retiree health

benefits vested notwithstanding an introductory clause stating that benefits would

be provided ‘‘at no cost to the Employees

or retirees for the term of this Agreement’’).

In this case, § 12.1 of the EBAs states:

‘‘Effective as of April 21, 1979 and for the

duration of this Agreement, the Company

will provide the following plan of hospital

expense benefits, hospital-medical benefits,

surgical benefits, prescription drug benefits, dental benefits and major medical

benefitsTTTT’’ JA at 172. According to

PolyOne, this language ‘‘specifically limit[s] the duration of retiree health benefits

to the term of the EBAs.’’ PolyOne’s argument fails, however, because § 12.1’s language is indistinguishable from the language we held to be a general durational

provision in Loral and is analogous to that

involved in Weimer. As with the durational clauses held to be general in Yolton,

Loral, BVR, and Weimer, the language in

§ 12.1 does not specifically refer to retiree

benefits; rather, it refers generically to

the benefits available for all employees as

well as retirees. Hence, the district court

incorrectly held that § 12.1 indicates an

intent not to vest retiree health benefits.

Aside from the language found in § 12.1,

PolyOne also asserts that the introductory

statement in Article 2 and the durational

language in § 16.4 foreclose Plaintiffs’

claim. For largely the same reasons as

those set forth above, we disagree. Section 16.4 states in pertinent part: ‘‘Upon

termination, this Agreement shall terminate in all respects except that the benefits

provided by it shall be extended for ninety

(90) days following such termination.’’ JA

at 186. As with § 12.1, nothing in § 16.4

specifically refers to retiree benefits; instead—like the clauses held to be general

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in the cases previously cited—it refers to

all benefits available for all employees, active and retired. Given the lack of any

specific reference to ‘‘retiree benefits

themselves,’’ Yolton, 435 F.3d at 581,

§ 16.4 is a general durational clause and

does not support the district court’s finding in favor of PolyOne.1

 See Maurer, 212

F.3d at 917–18 (finding a CBA clause providing that benefits shall remain in effect

until midnight on the CBA’s expiration

date to be a general durational provision

because it was ‘‘not clearly meant to include retiree benefits.’’); see also United

Rubber, Cork, Linoleum & Plastic Workers of Am., AFL–CIO v. Pirelli Armstrong

Tire Corp., 873 F.Supp. 1093, 1100–01

(M.D.Tenn.1994) (holding that a clause

identical in all respects to § 16.4 was a

general durational provision and did not

establish that retiree health benefits terminate ninety-days after the expiration of the

CBA.)

Looking to the introductory language of

Article 2, it is also a general durational

clause. Article 2 states in pertinent part:

‘‘This Agreement constitutes a settlement

for the duration of this Agreement of all

retirement, pension, insurance, survivor income benefits, supplemental workers’ compensation, drugs and severance pay demandsTTTT’’ JA at 495. This language

from Article 2 refers to all benefits; it

does not specifically limit the duration of

retiree health benefits as required by Yolton and its progeny. PolyOne’s argument

that this general language indicates that

Plaintiffs’ health benefits were not intended to vest fails.

The dissent erroneously suggests that

by deeming the durational provisions to be

general in nature, we have in some way

turned the Yard–Man inference into a presumption of vesting that may only be overcome by a ‘‘clear statement’’ that retiree

benefits were not intended to vest. Dis.

Op. at 566–67. Such is not the case. The

dissent also fails to recognize that requiring specific language referring to retiree

health benefits in order for a durational

clause to be characterized as ‘‘specific’’ is

not the same thing as requiring specific

anti-vesting language in a CBA; rather, it

simply means that the entire case cannot

1. Furthermore, a close reading of § 16.4 suggests that the purpose of the clause was not to

limit the duration of retiree health benefits;

rather, it was to provide active employees

with health benefits for a ninety-day period in

the event that the company and the union

could not agree to an extension of the agreement. Essentially, § 16.4 continues benefits

for active employees on a temporary basis in

the event of a strike or a situation where

employees continued to work without a contract. See United Steel Workers of Am., AFL–

CIO v. Titan Tire Corp., 359 F.Supp.2d 819,

822 (S.D.Iowa 2005). In Titan—pursuant to

the same language found in § 16.4—benefits

were provided to striking employees for the

specified ninety-day period. Id. at 822. Contrary to the reasoning set forth in the dissent,

such a context is clearly the one in which

§ 16.4 was meant to apply instead of situations like that involved here. Simply because

§ 16.4 uses the word ‘‘benefits’’—albeit in the

most generic sense of the word and in a

completely different context-the dissent latches on to it as support for the proposition that

this is a specific durational provision. Dis.

Op. at 566. To say that this provision, which

never mentions the word ‘‘retirement’’ or ‘‘retiree,’’ and is not found in the portion of the

EBAs addressing retiree benefits, constitutes

a specific durational clause is a stretch of the

sort that we are unwilling and unable—as a

panel—to make under our precedent. See

Weimer, 773 F.2d at 676 (finding a durational

clause that stated ‘‘all terms and conditions’’

of the agreement expired on the expiration of

the CBA to be general because it failed ‘‘to

specify that retiree insurance benefits’’ terminated with the CBA). For an example of a

true specific durational clause, see Senn v.

United Dominion Indus., Inc., 951 F.2d 806,

815 (7th Cir.1992), where the durational

clause in question ‘‘explicitly provided that

retiree insurance coverage would terminate’’

upon the expiration of the CBA.

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be resolved on the basis of a durational

clause that fails to reference retiree health

benefits as is required by our case law.

See Yolton 435 F.3d at 581. As this court

has held time and time again when confronted with similar provisions, general durational clauses of the sort found in the

EBAs do not resolve the vesting issue, and

it is necessary to determine if any provisions in the agreements shed light on

whether the parties intended for Plaintiffs’

health benefits to vest. See, e.g., Maurer,

212 F.3d at 917–18; Weimer, 783 F.2d at

676; Loral, 1997 WL 49077, at *3. It is to

that question that we now turn our attention.

3. The EBAs Indicate an Intent to

Vest Plaintiffs’ Health Benefits

Because the durational clauses relied on

by PolyOne do not preclude a finding that

Plaintiffs’ health benefits have vested, we

look to other provisions of the EBAs to

determine whether the parties intended

Plaintiffs’ health benefits to vest. Contrary to the district court’s holding, several

provisions in the EBAs and decisions of

this court support Plaintiffs’ argument that

their health benefits have vested.

a. Tying Eligibility for Retiree Health

Benefits to Eligibility for a

Pension

[10] According to this court, language

in an agreement that ties eligibility for

retiree health benefits to eligibility for a

pension indicates an intent to vest the

health benefits. See McCoy v. Meridian

Auto. Sys., Inc., 390 F.3d 417, 422 (6th

Cir.2004); see also Golden v. Kelsey–

Hayes Co., 73 F.3d 648, 656 (6th Cir.

1996).2

 In McCoy, the agreement between

the parties stated: ‘‘The Company shall

contribute the full premium or subscription charge for Health Care TTT for (i) a

retired employee (including any eligible

dependents) provided such retired employee is eligible for benefits under Article II

of the Company’s Hourly–Rate Employees

Pension Plan.’’ McCoy, 390 F.3d at 419.

After outlining the applicable law under

Yard–Man and its progeny, the McCoy

court held that because the CBA provision

‘‘ties eligibility for retirement-health benefits to eligibility for a pension TTT there is

little room for debate that retirees’ health

benefits vested upon retirement.’’ Id. at

422. Likewise, the Golden court found an

intent to vest retiree health benefits because there were ‘‘provisions in each of the

CBAs TTT which tie retiree and surviving

spouse eligibility for health insurance coverage to eligibility for vested pension benefits.’’ Golden, 73 F.3d at 656; see also

Yolton, 435 F.3d at 580 (citing Golden for

the proposition that tying eligibility for

retiree health benefits to eligibility for

pension benefits indicates an intent to

vest).

Applying the teaching of McCoy and

Golden in the present case leads inescapably to the conclusion that the district court

2. The dissent is correct that in both Golden

and McCoy this court was reviewing a district

court’s preliminary injunction decision under

the abuse of discretion standard. However,

given the unequivocal nature of those decisions—especially McCoy—such a distinction

is one without a difference. Undoubtedly,

when the McCoy court stated that by tying

‘‘eligibility for retirement-health benefits to

eligibility for a pension TTT [the parties left]

little room for debate that the retiree’s health

benefits vested upon retirement,’’ 390 F.3d at

422, it made a broad pronouncement of law.

A pronouncement that we believe applies regardless of whether this type of case reaches

us on appeal from a preliminary injunction

decision or from the grant of summary judgment. It is somewhat difficult to see why

such tying language would leave ‘‘little room

for debate’’ that retiree benefits were intended to vest in McCoy, yet suddenly be the

source of much debate here simply because

we are reviewing a district court’s summary

judgment decision.

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erred in granting summary judgment for

PolyOne. Looking to the EBAs, several

provisions tie eligibility for retiree health

benefits directly to eligibility for pension

benefits by using language that is indistinguishable from that involved in McCoy.

Section 12.14 of the EBAs provides in

pertinent part: ‘‘Employees who retire

and who are eligible under the 1979 Employee Benefit Agreement for a Pension

(other than a Deferred Vested Pension),

shall receive the benefits described in this

Article.’’ JA at 184 (emphasis added).

Another section of the EBAs also ties eligibility for retiree health benefits to eligibility for a pension. In § 12.7(k), the

EBAs state:

‘‘Employees who retire and who are eligible under this Agreement for a pension (other than a Deferred Vested Pension), shall receive the Major Medical

Benefits described in this Paragraph

12.7TTTT’’ JA at 181 (emphasis added).

Lending even more support to the argument that the EBAs tie retiree health

benefits to pension benefits is the fact

that a key retiree health provision refers

to retirees covered by the provision as

‘‘Pensioners.’’ See § 12.5(h), JA at 185.

Without citing any authority, the district

court disregarded the significance of this

tying language because it ‘‘focuses upon an

employee’s eligibility for benefits rather

than upon the duration of those benefits.’’

Noe, 2006 WL 3759601, at *4. Such a

statement contradicts McCoy and Golden,

both of which found vesting based on provisions that used the word ‘‘eligibility.’’

See McCoy, 390 F.3d at 422 (explaining

that there was evidence of an intent to vest

‘‘[b]ecause the Supplemental Agreement

ties eligibility for retirement-health benefits to eligibility for a pension.’’) (emphasis

added); see also Golden, 73 F.3d at 656

(explaining that ‘‘provisions in each of the

CBAs at issue TTT tie retiree and surviving

spouse eligibility for health insurance cover to eligibility for vested pension benefits.’’) (emphasis added). It is evident that

the district court failed to appreciate that

by tying the eligibility for retiree health

benefits to the eligibility for a pension, the

EBAs were actually speaking to the duration of the benefits. As we explained in

Golden, ‘‘[s]ince retirees are eligible to receive pension benefits for life,’’ the act of

tying retiree health benefits to pension

eligibility indicates ‘‘that the parties intended that the company provide lifetime

health benefits as well.’’ Golden, 73 F.3d

at 656 (explaining why the district court in

Golden correctly focused on the presence

of tying language). Here, the EBAs undoubtedly tie eligibility for retiree health

coverage to eligibility for a pension, which

is evidence of an intent to vest.

b. The EBAs’ Promise of a Lifetime

Special Medicare Benefit

[11] Aside from tying eligibility for retiree health benefits to eligibility for a

pension, which in and of itself suggests an

intent to vest, there are other provisions in

the EBAs that indicate under our case law

that Plaintiffs’ health benefits were intended to vest. Section 12.15(h) of the EBA

states:

Subject to the provisions of this Paragraph 12.15(h), a Special Medicare Benefit will be paid to TTT (ii) a Pensioner

who retires on or after April 21, 1979, or

(iii) such Pensioner’s or Employee’s surviving spouse, if such Employee, Pensioner or surviving spouse is covered for

Medical Benefits under this Article 12.

(1) The Special Medicare Benefit will

be equal to the standard monthly premium for Part B of Medicare TTT

(2) The Special Medicare Benefit will

be payable when an individual attains age sixty-five (65) or, for an

individual less than age sixty-five (65),

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when he enrolls for Part B of Medicare TTT

(3) Payment shall commence on the

first day of the month following (i) the

month during which the individual attains age sixty-five (65) TTT The payment of such Benefit shall continue

until the individual’s death TTT

(5) Upon the death of a Pensioner or

Employee, the Special Medicare Benefit will be paid to his surviving

spouse if such spouse is eligible to

receive Medical Benefits under this

Article 12. Such surviving spouse

shall continue to receive the Special

Medicare Benefit until such spouse

remarries, dies or is no longer eligible

for Part B of Medicare.

JA at 185 (emphasis added). As the italicized language makes clear, § 12.15(h)

promises that once a retiree reaches age

sixty-five he or she will receive the Special

Medicare Benefit until death. And upon

death, the retiree’s surviving spouse will

continue to receive the Special Medicare

Benefit until his or her death or remarriage.

When confronted with similar language

in the past, we have held that it establishes

an intent to vest retiree health benefits.

See Policy v. Powell Pressed Steel Co., 770

F.2d 609, 615 (6th Cir.1985).3

 In Policy,

the CBA provided: ‘‘When said Pensioner

reaches age 65, the Company will provide

such Pensioner, at the Company’s expense,

supplemental medicare and major medical

benefits. The Company will continue to

provide at its expense, supplemental medicare and major medical benefits for Pensioners aged 65 and over.’’ Id. Reversing

the district court’s conclusion that the retirees’ benefits were not vested, Policy

explained that the language of the supplemental medicare provision ‘‘unambiguously

confers the stated health insurance benefits for the duration of the retiree’s life.’’

Id. (emphasis added). The Policy court’s

determination finds support in the Seventh

Circuit’s decision in Bidlack v. Wheelabrator Corp., 993 F.2d 603, 608 (7th Cir.1993)

(en banc), where Judge Posner, writing for

the en banc court, explained that a similar

provision could reasonably ‘‘be thought a

promise to retired employees that they

and their spouses will be covered for the

rest of their lives. For the provision does

not say ‘when they die or the collective

bargaining agreement expires, whichever

occurs first,’ but simply when they die.’’

As with the provision involved in Policy,

§ 12.15(h)(3) promises to provide a Special

Medicare Benefit from age sixty-five ‘‘until

the individual’s death.’’ We are in agreement with Policy, that promising to provide a benefit until a person dies undoubtedly means that the benefit lasts for the

person’s life. It is likewise clear to us that

§ 12.15(h)(5)’s promise to provide the surviving spouse of a retiree with a Medicare

supplement until he or she remarries or

‘‘dies’’ is a promise that the spouse of a

retiree is entitled to lifetime benefits unless he or she remarries. See generally

3. PolyOne repeatedly cites Policy v. Powell

Pressed Steel Corp., 1984 WL 49075, 1984

U.S. Dist. LEXIS 18650 (N.D.Ohio March 14,

1984), in its brief as support for its argument

that Plaintiffs’ health benefits have not vested.

See Appellee’s Br. at 39, 41, 42. However,

PolyOne neglects to ever mention that the

district court’s decision on which it relies so

heavily was actually vacated and remanded

by this court on appeal. See Policy, 770 F.2d

at 618. Our decision in Policy specifically

rejected the language that PolyOne quotes in

bold print at page 42 of its brief as support for

the argument that the provisions in the EBAs

promising certain benefits until a deceased

retiree’s death or remarriage did not evince

an intent to vest retiree health benefits. See

id. at 615 (finding that to construe a provision

conferring health insurance benefits for the

duration of the retiree’s life as not providing

vested benefits would render the promise ‘‘in

substantial part nugatory and illusory’’).

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Loral, 1997 WL 49077, at *3 (concluding

that language providing the spouse of a

deceased retiree with benefits ‘‘until death

or remarriage’’ indicates that such benefits

have vested).

Furthermore, adopting PolyOne’s argument that Plaintiffs’ retiree benefits have

not vested would render portions of

§ 12.15(h) nugatory, and the promises contained therein illusory, in violation of

Yard–Man and its progeny. See Yard–

Man, 716 F.2d at 1480 (explaining that

courts must construe CBA provisions ‘‘so

as to render none nugatory and avoid illusory promises’’). With regard to the analogous provision in Policy, this court explained that to interpret such a benefits

provision as terminating at the end of the

relevant CBA would create an illusory

promise to those retirees who would not

reach age sixty-five before the CBA’s expiration. Policy, 770 F.2d at 615. According to Policy, the promise would be illusory because:

if a sixty-two year old employee with

twenty years service retired on January

1, 1982, eight months before the collective bargaining agreement expired, and

if the Company were correct in contending that the retiree’s health insurance

benefits ceased with the August 31,

1982, expiration of such agreement, then

the Company’s promise to provide supplemental Medicare TTT to the retiree

when he reached age sixty-five would be

of no value.

Id.; see also Bailey v. AK Steel Corp.,

No. 1:06cv468, 2006 WL 2727732, at *6

(S.D.Ohio Sept.22, 2006) (examining a

similar Medicare supplement provision for

retirees and concluding that the promise

establishes an intent to vest because otherwise it would be illusory for many individuals who retired as young as age fiftyfive). The same conclusion was reached

in Yard–Man, where the CBA promised

to provide certain benefits to retirees

when they reached age sixty-five. Yard–

Man, 716 F.2d at 1481 (explaining that if

retiree benefits expired at the end of the

CBA then the promise to provide certain

benefits at age sixty-five ‘‘is completely

illusory for many early retirees under age

62’’); see also Maurer, 212 F.3d at 918

(explaining that, ‘‘[b]ecause the CBAs permit retirement at age 55 and promise insurance at age 65, the promise is meaningless if it could be terminated in three

years’’).

Similar to the provisions in Policy,

Yard–Man, and Maurer, § 12.15(h) promises that upon the attainment of age sixtyfive the company will begin to provide the

Special Medicare Benefit to retirees.

However, as in Maurer, employees of BFG

could retire as early as age fifty-five under

the company’s early retirement plan. See

§ 4.2, JA at 194. For such early retirees,

the promise of the Special Medicare Benefit is rendered illusory under the interpretation urged by PolyOne. See JA at 194,

§ 4.2. Likewise, § 12.15(h)’s promise to

provide the spouse of a deceased retiree

with the Special Medicare Benefit until his

or her death or remarriage would be rendered illusory were this court to agree

with the district court and PolyOne. Under PolyOne’s interpretation, the spouse of

an individual who retired early at age fiftyfive and passed away at age fifty-seven

would never receive the promised Special

Medicare Benefit even though he or she

remained alive and never remarried.

Looking to another provision of the

EBAs, § 12.14 also promises health benefits to the surviving spouse of a retiree

until the spouse’s death or remarriage.

According to § 12.14:

The surviving spouse of an Employee

who is retired by the Company on or

after the effective date of this Agreement shall continue to be eligible to

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receive such benefits to the earlier of the

date of death or remarriage, provided

such spouse, as of the date of death of

such retired former Employee, was covered for these benefits as an eligible

dependentTTTT

JA at 184 (emphasis added). Accepting

PolyOne’s interpretation would require

this court to rewrite § 12.14 to say that

the spouse of a deceased retiree ‘‘shall

continue to be eligible to receive such benefits to the earlier of the date of death or

remarriage, or the expiration of this agreement.’’ No such limiting language is found

in § 12.14, and courts should not add

words to a contract under the guise of

construing it. See Richard A. Lord, Williston on Contracts § 31:5 (4th ed.2007); see

also Bidlack, 993 F.2d at 608 (explaining

that such a provision does not say retiree

benefits will be provided to surviving

spouses ‘‘ ‘when they die or the collective

bargaining agreement expires, whichever

occurs first’ but simply when they die’’).

As with the promises made in § 12.15(h),

holding that Plaintiffs’ health benefits have

not vested would render § 12.14’s promise

of health benefits until death or remarriage illusory for the spouses of deceased

retirees in violation of precedent.

4. Presence of Specific Vesting Language in Pension Provision

[12] Next, PolyOne argues that the

fact that the EBAs used explicit vesting

language with regard to pension benefits

leads to the conclusion that the absence of

such explicit vesting language in the retiree health benefits provisions indicates that

they have not vested. The district court

was persuaded by this argument, noting

that Article 6 of the EBA ‘‘contains strong

language stating that pension payments

shall be payable monthly ‘during the life of

such Employee, the last payment thereof

being payable for the month in which he

dies.’ ’’ Noe, 2006 WL 3759601, at *4

(quoting § 6.1(a) of the EBA, JA at 197).

According to the district court, the absence

of such language in the retiree health benefits portion of the EBAs suggests that the

parties did not intend for them to vest.

However, the district court neglected to

notice the similarity between § 6.1(a)’s language and that found in § 12.15(h), which

provides that the Special Medicare Benefit

will commence when the retiree reaches

age sixty-five and ‘‘[t]he payment of such

Benefit shall continue until the individual’s

death.’’ JA at 185. In our opinion,

§ 6.1(a)’s promise to pay a monthly pension ‘‘during the life of such employee’’ is

indistinguishable from § 12.15(h)’s promise

to pay the Special Medicare Benefit ‘‘until

the individual’s death.’’ It is axiomatic

that promising to provide a benefit for an

individual’s life (§ 6.1(a)) is the functional

equivalent of promising to provide a benefit until an individual’s death (§ 12.15(h)).

Any argument to the contrary is mere

semantics and defies common sense.

In the same vein, PolyOne asserts that

the presence in § 8.5 of language specifically indicating that pension benefits survive the expiration of the EBAs, and the

absence of such language with regard to

retiree health benefits demonstrates that

Plaintiffs’ health benefits have not vested.

Section 8.5 states: ‘‘No Pension or other

benefit granted prior to the time of such

termination shall be reduced, suspended or

discontinued except as specifically provided in this Pension Plan.’’ JA at 201. The

force of this argument is blunted first by

the provisions discussed above that under

our precedent do indicate an intent to vest,

and second by the existence of various

provisions in the EBAs that have specific

termination language, whereas the retiree

health benefits provisions have none.

The presence of specific durational language in other provisions and its absence

in the retiree health benefits provisions

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suggests an intent to vest under our case

law. See Yard–Man, 716 F.2d at 1481–82.

Here, there are several provisions that

contain the specific durational provisions

referred to by Yard–Man. First, § 12.9

explains that in the event of a layoff an

employee shall receive health coverage for

three months following the date of lay-off.

JA at 220–21. Second, § 12.10 specifies

that an employee who is terminated because of a plant closure is entitled to medical benefits under the EBAs for a twentyfour month period. Id. Third, § 12.11

states that an employee on an authorized

leave of absence shall receive health coverage for ‘‘a period not to exceed three (3)

months.’’ Id. The inclusion of specific durational language ‘‘in other provisions of

the current collective bargaining agreement suggests that retiree benefits, not so

specifically limited, were intended to survive the expiration of successive agreements.’’ Yard–Man, 716 F.2d at 1481–82;

see also Yolton, 435 F.3d at 582 (discussing, with approval, the district court’s citation of specific durational provisions in the

CBAs for laid-off employees and those on

maternity leave as evidence that retiree

benefits vested under Yard–Man).

Thus, these arguments, essentially predicated on the expressio unius est exclusio

alterius canon of interpretation, work to

the benefit and detriment of each party.

Accordingly, the language in § 8.5 offers

little support for PolyOne’s argument that

Plaintiffs’ health benefits were not intended to vest. This is especially true given

the various provisions discussed above that

indicate an intent to vest Plaintiffs’ health

benefits.4

As the foregoing analysis makes clear,

there is nothing earth-shattering about our

holding in this case; it is merely the

straightforward application of this circuit’s

case law.5

 The dissent’s contention that

4. Given our conclusion that the plain language of the EBAs indicates an intent to vest

retiree health benefits, the consideration of

extrinsic evidence is unnecessary. However,

we pause to note that our interpretation of the

EBAs finds considerable support in the available extrinsic evidence. See, e.g., Affidavit of

Anna May Wilder, JA at 104–05 (‘‘When I

began receiving the BFGoodrich health insurance benefits after my husband’s death, I was

told that it would be paid ‘like it is’ for my life

by the woman who helped me. That person

was a representative of BF Goodrich Company.’’); Affidavit of William Duncan, Jr., JA at

113–14 (‘‘When I retired I spoke with Karen

Hicks. She told me at that time that the only

loss I would have by retiring would be a

partial loss of my life insurance.’’); Deposition of Kimberly K. Reilly, JA at 595 (indicating that while employed in BFG’s human

resources department she instructed retirees

consistent with her training that their health

benefits would be provided for the rest of

their life). This type of extrinsic evidence was

held to be evidence of vesting in Yolton. See

Yolton, 435 F.3d at 583. Looking to the extrinsic evidence relied on by PolyOne, we are

unconvinced that the letter of Ms. Allison

Beck, Assistant General Counsel to the Machinist’s Union, casts any doubt on our conclusion that the EBAs indicate an intent to

vest. As Plaintiffs point out, the letter contains a general statement of law that, unlike

pension benefits, retiree health benefits may

be altered upon the expiration of the applicable CBA. The letter indicates that Ms. Beck

was speaking in generic terms and not on the

basis of the contractual language of the EBAs

involved in this case. Ms. Beck is correct

that nothing in ERISA prevents an employer

from terminating retiree health benefits at the

end of a CBA; however, under our case law

termination of health benefits is forbidden

when—as here—the language of the agreements themselves indicates an intent to provide such benefits beyond the term of a particular agreement.

5. Illustrative of this point is the fact that, of

the eleven most pertinent Sixth Circuit cases

addressing whether retiree health benefits

have vested, this court found evidence of vesting in ten. See Yard–Man, 716 F.2d at 1478;

Policy, 770 F.2d at 611; ABS Indus., Inc., 890

F.2d at 846; Weimer, 773 F.2d at 676; Loral,

1997 WL 49077, at *3; Golden, 73 F.3d at

657; McCoy, 390 F.3d at 422; Maurer, 212

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we have turned Yard–Man into some sort

of a presumption in favor of vesting is

premised on a misreading of the court’s

opinion. One can search this opinion in

vain for any indication—or even a suggestion—that we presume retiree health benefits were intended to vest absent a clear

statement to the contrary. All we have

done today is follow the instructions of

Yard–Man and its progeny by examining

the provisions of the EBAs and applying

traditional principles of contract interpretation to ascertain whether the parties intended to vest retiree health benefits. See

Yard–Man, 716 F.2d at 1479–80. While

the dissent is correct that—beginning with

Yard–Man—this court has approached the

vesting issue differently than have many of

our sister circuits, this panel is not at

liberty to cast aside nearly twenty-four

years of precedent in order to charter a

new course, no matter how desirable that

new course may be.

Having addressed the EBAs and explained why the district court erred in

granting summary judgment for PolyOne,

we proceed now to analyze whether Plaintiff Hood’s health benefits under the Flex

Program have vested.

D. The Flex Program

Unlike the other Plaintiffs, Plaintiff

Hood’s health benefits are governed by the

Flex Program because her now-deceased

husband retired from BFG in 1990, two

years after the Flex Program replaced the

EBAs. Although it is clear from our review

of the record that the provisions of the

Flex Program differ from those in the

EBAs, the district court’s opinion failed to

address whether Plaintiff Hood’s benefits

have vested under the Flex Program. In

all likelihood, the district court’s failure to

address this issue resulted from the parties’ failure to explain to the court how

Plaintiff Hood’s claim differed from that of

the other Plaintiffs. Similarly—aside from

PolyOne’s brief mention of a reservation of

rights clause found in the Flex Program’s

Summary Plan Description—neither party

has provided this court with any analysis

of the Flex Program’s language or argument as to whether it evinces an intent to

vest retiree benefits. Accordingly, whether Plaintiff Hood’s benefits have vested

under the Flex Program is an issue that

the district court must consider on remand.

III. CONCLUSION

We are cognizant of the overall climate

in which this case reaches the court; rising

healthcare costs and foreign competition

have certainly placed corporations such as

PolyOne in a difficult economic position.

However, in the absence of impossibility of

performance, it is not the prerogative of

the judiciary to rewrite contracts in order

to rescue parties from ‘‘their improvident

commitments.’’ Bidlack, 993 F.2d at 609.

Because the district court erred in concluding that the EBAs do not indicate an

intent to vest Plaintiffs’ health benefits, we

VACATE the district court’s decision

granting summary judgment for PolyOne

and REMAND the matter for further proceedings consistent with this opinion.

SUTTON, Circuit Judge, concurring in

part and dissenting in part.

Applying the Yard–Man line of cases to

these agreements, the district court concluded as a matter of law that the claimants’ healthcare benefits do not vest upon

retirement. Applying the same cases to

these agreements, the majority concludes

as a matter of law that the claimants’

healthcare benefits do vest upon retirement. They are both partly right, which is

F.3d at 917–18; BVR Liquidating, Inc., 190 F.3d at 775; Yolton, 435 F.3d at 581–85.

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Cite as 520 F.3d 548 (6th Cir. 2008)

why I would not rule as a matter of law for

either party and which is why I respectfully concur in part and dissent in part.

My first objection to the majority’s approach is its treatment of the claimants as

if the employee-benefit agreements covered them directly. That is not the case.

The agreements bear on this case only

because a separate memorandum of understanding incorporates them. And that

memorandum independently limits any expectations claimants otherwise might have

about their future healthcare benefits. As

agreed to by the claimants, the memorandum says that, if certain other unions representing other BFGoodrich workers

change their members’ retiree health benefits—in negotiations not involving the

claimants’ union, no less—those changes

immediately will alter the benefits of the

soon-to-be retirees of the claimants’ union.

See JA 646 (‘‘[I]f during the term of this

Agreement the Plan or Programs are

changed for [the] majority [of BFGoodrich’s other production and maintenance

employees], such changes shall be made

effective on the same date they are made

effective for [that] majority TTT and remain in effect for the life of this Agreement.’’). That means that, if these other

unions and BFGoodrich amend their plans

and eliminate (or curtail) retiree health

benefits, the soon-to-be-retirees of the

claimants’ union, even someone who

planned to retire the next day and anticipated receiving health benefits for life, will

be stuck with the change—at least until

the next round of negotiations. That is

not the kind of provision that naturally

inspires a worker to believe his benefits

are fixed for life.

The durational language in § 16.4 of the

employee-benefit agreements likewise undercuts the claimants’ argument that their

benefits are immutable for life as a matter

of law. It says that, ‘‘[u]pon termination,

this Agreement shall terminate in all respects except that the benefits provided by

it shall be extended for ninety (90) days

following such termination.’’ On its face,

the agreement undermines any expectation

that the healthcare benefits a worker happens to receive at retirement are the benefits he will receive throughout retirement.

Our cases, it is true, appear not to give

any weight to ‘‘general’’ durational clauses

in collective bargaining agreements when

those clauses do ‘‘not specifically refer to

the duration of benefits.’’ UAW v. Yard–

Man, Inc., 716 F.2d 1476, 1482 (6th Cir.

1983). In Yard–Man, we gave no weight

to a durational clause providing that the

CBA should remain in effect until a particular date because the clause did not ‘‘specifically refer to the duration of benefits.’’

Id. Similarly, in Maurer v. Joy Technologies, Inc., 212 F.3d 907 (6th Cir.2000), we

concluded that provisions indicating that

the CBA and certain other agreements

shall terminate on a particular date were

‘‘general in nature’’ because they ‘‘only

refer[red] to agreements between the parties, not to benefits created by the agreements.’’ Id. at 918 (emphasis added). But

§ 16.4 of the agreement does ‘‘specifically

refer to the duration of benefits.’’ Indeed,

this language satisfies even the suggestion

in Yolton that the durational clause must

refer to the ‘‘retiree benefits themselves.’’

Yolton v. El Paso Tenn. Pipeline Co., 435

F.3d 571, 581 (6th Cir.2006). Surely one

type of benefits to which the clause could

be referring is retiree benefits. If the

majority means to say that a durational

clause means nothing unless it says that

‘‘retiree health benefits’’ terminate (or may

be terminated) at a given point, then it

must be saying what our cases (including

Yolton itself) have long disclaimed saying—that the Yard–Man inference creates

a presumption in favor of vesting that may

be countered only by a clear statement.

See id. at 579. More on that later.

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Nor do I believe that the tying language

in § 12.7(k) of the agreement—which says

that ‘‘[e]mployees who retire and who are

eligible under this Agreement for a pension TTT shall receive the Major Medical

Benefits described in this Paragraph

12.7’’—compels the view that claimants

have unalterable benefits for life. McCoy

and Golden are not the holy grails claimants say they are because those cases (like

Yolton) reviewed preliminary injunctions

granted by the district court, not a district

court’s resolution of summary-judgment

motions. See McCoy v. Meridian Auto.

Sys., Inc., 390 F.3d 417, 419 (6th Cir.2004);

Golden v. Kelsey–Hayes Co., 73 F.3d 648,

651 (6th Cir.1996). At issue there was the

abuse-of-discretion question whether the

district court properly assessed plaintiffs’

likelihood of success and the balancing of

equities caused by an immediate termination of healthcare benefits, not the denovo question whether the plaintiffs should

prevail as a matter of law. Nor do those

cases indicate whether the agreements

contained benefits-specific durational language, as in this case, or whether a memorandum of understanding between the union and company limited any expectations

otherwise created by the agreements.

While I agree with the majority that the

district court should not have disregarded

the tying language, I respectfully disagree

with the majority that this language ‘‘leads

inescapably to the conclusion that the district court erred in granting summary

judgment for PolyOne.’’ No case, to my

knowledge, holds that tying language alone

suffices to permit retirees to fend off summary judgment—much less to mandate

that the benefits vested as a matter of law.

That is particularly so here in view of

the conspicuous inclusion of vesting language in the pension benefits section of the

agreement and its conspicuous omission in

the healthcare benefits section of the

agreement. The pension section of the

agreement says: ‘‘No Pension or other

benefit granted prior to the time of [the]

termination [of the Pension Plan] shall be

reduced, suspended or discontinued except

as specifically provided in this Pension

Plan. In the event of termination or partial

termination of this Pension Plan, the

rights of the Employees to benefits accrued to the date of such termination, to

the extent then funded, shall be nonforfeitableTTTT’’ Now that is vesting language.

Yet nothing like it appears in the healthcare benefits section of the agreement. If

our cases are going to rely on similarities

between pension benefits and healthcare

benefits (such as similar eligibility dates)

in determining what has vested, they

should not ignore marked differences (such

as different language about vesting) in

making the same inquiry. Either they

both are relevant to the vesting question,

or neither is.

Although §§ 12.15(h) and 12.14 of the

agreement provide some support for the

retirees’ claim, they too do not establish

unalterable benefits for life. Section

12.15(h), as the retirees emphasize, says

that ‘‘a Special Medicare Benefit’’ will be

paid to certain employees, pensioners and

surviving spouses. But the retirees overlook the first sentence of that provision,

which adds that those individuals will be

provided with ‘‘a Special Medicare Benefit’’

only ‘‘if such Employee, Pensioner or surviving spouse is covered for Medical Benefits under this Article 12.’’ (emphasis added). Read together with the introductory

language to Article 12–which says that the

company will provide the benefits discussed in Article 12 ‘‘for the duration of

this Agreement’’—this provision does not

unambiguously vest the retirees’ health

benefits. The claimants’ reliance on

§ 12.14 suffers from a similar problem.

Even if I were to ignore all of this, I still

do not know what has vested as a matter

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Cite as 520 F.3d 548 (6th Cir. 2008)

of law. Is it all retiree health benefits or

just certain stated benefits? See Policy v.

Powell Pressed Steel Co., 770 F.2d 609, 615

(6th Cir.1985) (‘‘The court finds that this

section unambiguously confers the stated

health insurance benefits for the duration

of the retiree’s life.’’) (emphasis added).

And if it is all retiree benefits, are there

any limitations? ‘‘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?’’ Prater v. Ohio Educ. Ass’n,

505 F.3d 437, 441 (6th Cir.2007). What

happens if the medical insurance provider

no longer offers the same medical benefits

it offered for the term of the prior collective bargaining agreement? And what if

the company’s business takes a turn for

the worse? Must it continue paying the

same benefits to retirees that they received at retirement, even if the cost of

those benefits means laying off current

workers (and eliminating their health benefits) and means potentially weakening the

income stream that pays for retiree benefits? How long must this continue? Until

all of the values that a company brings to a

community but one—irreversible retiree

health benefits—are gone?

While there is no reason to think the

company is heading in this direction, I fail

to see how we can hold that benefits have

vested as a matter of law when we do not

know what has vested and on what terms.

In a case like this one—where the memorandum of understanding and durational

language point in the company’s direction,

the tying language (at least some of it) and

§§ 12.14 and 12.15(h) point in the retirees’

direction and the extrinsic evidence points

in both directions—I would prefer to leave

these contractual ambiguities for resolution in the forum in which they belong: a

jury.

One last point. The majority’s conclusion to the contrary suggests that the

Yard–Man inference has become a rebuttable presumption—one that may be overcome only by a clear-statement reservation

of rights. ‘‘[A]bsent specific durational

language referring to retiree benefits

themselves,’’ as the majority puts it,

healthcare benefits vest as a matter of law.

The majority disclaims doing any such

thing. ‘‘Yard–Man,’’ it says, ‘‘does not

create a legal presumption that retiree

benefits are interminable’’ but rather ‘‘is

properly understood as creating an inference only if the context and other available

evidence indicate an intent to vest.’’ We

have said the same thing before. See, e.g.,

Yolton, 435 F.3d at 580 (‘‘[U]nder Yard–

Man, there is no legal presumption that

benefits vest and TTT the burden of proof

rests on plaintiffs. This Court has never

inferred an intent to vest benefits in the

absence of either explicit contractual language or extrinsic evidence indicating such

an intent.’’) (internal quotation marks, citations and alterations omitted).

But other circuits and observers, looking

at what we have said and done in applying

the Yard–Man inference have called it a

presumption. See, e.g., Rossetto v. Pabst

Brewing Co., 217 F.3d 539, 543 (7th Cir.

2000) (‘‘One case [i.e., Yard–Man] holds

that benefits are presumed to vest if they

are conferred by a collective bargaining

agreement TTTT’’) (emphasis added); UAW

v. Skinner Engine Co., 188 F.3d 130, 140

(3d Cir.1999) (‘‘We cannot agree with

Yard–Man and its progeny that there exists a presumption of lifetime benefits in

the context of employee welfare benefits.’’)

(emphasis added); Am. Fed’n of Grain

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Millers v. Int’l Multifoods Corp., 116 F.3d

976, 980 n. 3 (2d Cir.1997) (citing Yard–

Man as a case that ‘‘apparently presum[ed] that retiree benefits are vested’’)

(emphasis added); Roger C. Siske et al.,

What’s New in Employee Benefits (ALI–

ABA Course of Study, July 1–5, 2002), WL

SH011 ALI–ABA 59, 322 (‘‘The Sixth Circuit presumes vesting and requires a clear

statement of termination to prove otherwise.’’) (emphasis added).

I see their point. What started out as a

potential inference became an omnipresent

presumption and now appears to have become a clear-statement rule. Unless a

company can point to explicit language in

the relevant agreement stating that ‘‘retiree benefits’’ terminate at a particular date

or do not vest, the benefits seem to vest as

a matter of law. What we continually

disclaim presuming we continually seem to

presume.

In the majority’s defense, perhaps the

problem is the ineffable nature of the inference. If we were writing on a clean

slate, I could imagine three straightforward approaches to the problem. One:

adopt the position of several circuits and

create a presumption against vesting because a company’s unchangeable promise

to pay healthcare benefits for life is a

significant and unusual one—particularly

when it arises from a three-year contract.

See Bidlack v. Wheelabrator Corp., 993

F.2d 603, 606–07 (7th Cir.1993) (‘‘No doubt

a court should cast a cold eye on contentions that a contract with a fixed term

actually created a perpetual obligation, and

should, therefore, TTT presume that a collective bargaining agreement ceases to obligate the employer when the agreement’s

term (invariably three years) is up.’’); see

also Skinner, 188 F.3d at 139 (‘‘[I]t must

be remembered that to vest benefits is to

render them forever unalterable. Because

vesting of welfare plan benefits constitutes

an extra-ERISA commitment, an employer’s commitment to vest such benefits is

not to be inferred lightly and must be

stated in clear and express language.’’);

Gable v. Sweetheart Cup Co., 35 F.3d 851,

855 (4th Cir.1994) (same); cf. Anderson v.

Alpha Portland Indus., Inc., 836 F.2d

1512, 1517 (8th Cir.1988) (‘‘disagree[ing]

with Yard–Man to the extent that it recognizes an inference of an intent to vest’’ and

suggesting that ‘‘there must be a specific,

if not written, expression of the employer’s

intent to be bound’’) (internal quotation

marks omitted).

Two: adopt the position no circuit has

yet taken that there should be a presumption in favor of vesting because retirees

who lose benefits often are not in a position either to return to work or to require

their union to negotiate new benefits.

Three: do not adopt any presumption

because these contracts should be interpreted no differently from other collectively bargained contracts. See generally

Senior v. NSTAR Elec. & Gas Corp., 449

F.3d 206, 218 (1st Cir.2006) (applying the

‘‘traditional principles of labor contract interpretation’’ because, among other reasons, using a presumption or requiring

‘‘certain customary words’’ might ‘‘interfere with the correct interpretation TTT of

the understanding reached by the parties’’

and ‘‘Congress could easily have created

interpretive presumptions by statute’’ but

chose not to).

Yard–Man contemplates an in-between

inference—not quite a presumption in favor of vesting but not quite a straight

interpretive question either. Yet I wonder

whether that slices things so finely that it

places the rule beyond predictable and fair

application—a little like adopting a standard of review between intermediate and

strict scrutiny or a level of deference between Chevron and Skidmore.

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U.S. v. URRIETA 569

Cite as 520 F.3d 569 (6th Cir. 2008)

Making this particularly puzzling is that

we have adopted the opposite rule—a presumption against vesting—in the context

of employment agreements that are not

collectively bargained. See Sprague v.

Gen. Motors Corp., 133 F.3d 388, 400 (6th

Cir.1998) (en banc) (‘‘To vest benefits is to

render them forever unalterable. Because

vesting of welfare plan benefits is not required by law, an employer’s commitment

to vest such benefits is not to be inferred

lightly; the intent to vest must be found in

the plan documents and must be stated in

clear and express language.’’) (internal

quotation marks omitted). One might

have thought that we would apply the

same rule in both settings or, if we were to

put a thumb on just one of the scales, we

would do so only where the employee did

not have the benefit of a union negotiating

the contract.

The salient point is that the inference, as

this case well shows, has become a presumption. And we should either say that

is what we are doing—and spare future

panels, the district courts and litigants the

confusion the inference has created—or

abandon the inference altogether.

,

UNITED STATES of America,

Plaintiff–Appellee,

v.

Jose Eduardo URRIETA, Defendant–

Appellant.

No. 07–5431.

United States Court of Appeals,

Sixth Circuit.

Argued: Jan. 30, 2008.

Decided and Filed: March 20, 2008.

Background: Defendant, who was

charged with being an illegal alien in possession of firearms and possession of unlawful identification documents, filed motion to suppress the firearms, documents,

and several incriminating statements. The

United States District Court for the Middle District of Tennessee, Todd J. Campbell, Chief Judge, 2007 WL 208526, granted the motion to suppress certain of the

statements, but denied the motion to suppress the evidence obtained in a search,

and defendant appealed.

Holding: The Court of Appeals, Ronald

Lee Gilman, Circuit Judge, held that extended detention of defendant following

initial traffic stop was unlawful.

Reversed and remanded.

McKeague, Circuit Judge, filed dissenting

opinion.

1. Arrest O63.5(1)

A seizure is unlawful if an officer,

without a reasonable suspicion, by means

of physical force or show of authority in

some way restrains the liberty of a citizen.

U.S.C.A. Const.Amend. 4.

2. Arrest O63.5(4)

Law enforcement officer may permissibly conduct an investigatory stop when

he or she has a particularized and objective’ suspicion that criminal activity is

afoot; to meet that standard, government

must point to specific and articulable facts,

which taken together with rational inferences from those facts, reasonably suggest

than criminal activity has occurred or is

imminent. U.S.C.A. Const.Amend. 4.

3. Arrest O63.5(4)

Courts determine whether a reasonable suspicion exists, thus justifying an

investigatory stop, by looking at the totali2:09-cv-10918-PDB-MKM Doc # 101-13 Filed 05/14/12 Pg 22 of 22 Pg ID 4559