United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-3812

___________

Harold G. Wilson; Robert N. *

Goodwin; Calvin Smith; James R. *

Brinker; Jerry Thrasher; John B. *

Hawley; Gary L. Vails; Dale L. *

Franklin; David L. Jones, *

*

Appellants, *

*

v. *

*

Moog Automotive, Inc. Pension Plan *

and Trust for U.A.W. Employees; * Appeal from the United States

Cooper Industries, also known as Moog * District Court for the

Automotive Inc. Group Life & Weekly * Eastern District of Missouri.

Disability Plan, Inc. Insured & *

Self-Funded Comprehensive Health *

Care Plan; Cooper Industries, Inc., *

Trusteed Comprehensive Health Care *

Plan; Moog Automotive, Inc. *

Prescription Drug Plan, also known as *

Health Benefits Program for Retirees *

of Moog Automotive Inc., Inc., Blue *

Cross Blue Shield Plan; Cooper *

Industries, Inc., *

*

Appellees. *

___________

Submitted: June 16, 1999

Filed: October 8, 1999

___________
1The Honorable Ronald E. Longstaff, United States District Judge for the

Southern District of Iowa, sitting by designation.

2The Honorable Charles A. Shaw, United States District Judge for the Eastern

District of Missouri.

3Employee Retirement Income Security Act of 1974, Pub. L. No. 93-406, 88

Stat. 829 (codified as amended at 29 U.S.C. §§ 1001-1461 (1994 & Supp. III 1997)

and in scattered section of the United States Code).

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Before BOWMAN and HEANEY, Circuit Judges, and LONGSTAFF,1 District Judge.

___________

BOWMAN, Circuit Judge.

Nine former employees of Moog Automotive Division, Cooper Industries, Inc.

(the Company), appeal from the judgment of the District Court2 entered in favor of the

Company and the other named defendants after a trial on the plaintiffs' claims alleging

various violations of ERISA.3 We affirm.

I.

The nine plaintiffs were all employees at the Company's Wellston, Missouri,

manufacturing plant. In November 1993, the Company announced the imminent

closure of the plant and then began negotiating a closing agreement with UAW Local

282 (the Union), the bargaining unit for the plant employees. During negotiations, the

Union sought to extend early retirement benefits to certain employees who would not

otherwise be eligible for such benefits when the plant closed. The Company did not

agree to expand eligibility as broadly as the Union proposed, but benefits were

extended to a group of individuals who were close to eligibility for early retirement

under the Pension Plan then in effect. The negotiated Closing Agreement, covering a

variety of topics relating to the closure of the plant, was ratified by the Union
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membership and executed by the Union on January 29, 1994. The plant was shut down

later that year.

Paragraph 7(b) of the Closing Agreement proposed to "bridge" employees in

three categories (two of which are not relevant to the case before us) to early retirement

eligibility. In pertinent part, ¶ 7(b) provides:

An employee who, as of the date of this Agreement, is either age 55 or

has completed at least 25 years of service and who, except for the plant

closing, would have satisfied the Rule of 80 under the Pension Plan on or

before December 31, 1994, will be deemed to have satisfied the Rule of

80.

The Rule of 80 in the original Pension Plan, to which ¶ 7(b) refers, reads as follows:

A Participant who has attained age 55, but not age 60, and the sum of his

age and Accrued Service equals or exceeds 80 may elect an Early

Retirement Date, which shall be the last day of the calendar month in

which his employment is terminated.

Moog Automotive, Inc. Pension Plan and Trust for U.A.W. Employees (Thirteenth

Amendment) § 5.2(b). Simply put, under the terms of ¶ 7(b) of the Closing Agreement

and the Pension Plan's Rule of 80 to which ¶ 7(b) refers, early retirement eligibility was

accelerated for those plant employees who were not going to qualify for benefits under

the original Pension Plan at the time they were terminated, but who would have

qualified by the end of the year but for the plant shutdown. Notwithstanding the

disjunctive phrasing in ¶ 7(b), that an employee either be age fifty-five or have twentyfive years of service on January 29, 1994 (the date of the Closing Agreement), an

employee had to be fifty-five years of age no later than December 31, 1994, to meet the

other requirement of ¶ 7(b), that is, to satisfy the Rule of 80 by the last day of 1994.

None of the plaintiffs was at least age fifty-five on December 31, 1994, but they all had
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at least twenty-five years of service on January 29, 1994, and at least eighty "points"

when their respective ages and years of accrued service as of December 31, 1994, were

added together.

There was no evidence at trial that any of the plaintiffs were told by Union or

Company officials, either before or after ratification of the Closing Agreement, that

they would be eligible for early retirement under the Closing Agreement. Although

some of the plaintiffs asked if they were eligible, the uncontroverted evidence

demonstrates that these plaintiffs were specifically told they would not qualify for early

retirement benefits under the terms of the Closing Agreement. After these verbal

denials of eligibility, counsel for the plaintiffs wrote to the Company in October 1994

contending that the denial of benefits "is contrary to the terms of the Closing

Agreement and constitutes a breach of the Closing Agreement" by the Company.

Letter from Robert J. Guinness to Gene Brunk of Oct. 7, 1994. Counsel relied solely

on the terms of the Closing Agreement to support his clients' claims of eligibility. The

Company responded that counsel's clients should make formal application for benefits

and that their claims would be considered. On December 22, 1994, the clients filed

applications for early retirement benefits.

In the meantime, on December 1, 1994, § 5.2 of the Pension Plan was modified

to add this subsection (d) "at the end thereof":

A Participant who is at least age 55 or who has completed at least 25

years of Accrued Service on December 21, 1993 and whose age and

Accrued Service, except for the closing of the Wellston plant, would have

equalled at least 80 on or before December 31, 1994, shall be eligible to

elect an Early Retirement Date on or after the last day of the calendar

month in which his employment is terminated.

Sixteenth Amendment to the Moog Automotive, Inc. Pension Plan and Trust for UAW

Employees ¶ 2. Nothing in the Sixteenth Amendment modifies or amends § 5.2(b), the
4The Sixteenth Amendment also misrepresented a negotiated agreement between

the Union and the Company regarding a supplemental retirement allowance. That error

was corrected by the Twentieth Amendment. Because we hold that the plaintiffs are

not eligible for early retirement, they are foreclosed from receiving any supplemental

retirement benefit. We will not discuss that issue further.

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Rule of 80 in the original Pension Plan; instead, new subsection (d) incorrectly restates

¶ 7(b) of the Closing Agreement by misstating the Pension Plan's Rule of 80. Thus,

even though the Sixteenth Amendment purports "to reflect the provisions of the Closing

Agreement entered into on January 29, 1994, with Local No. 282," it does nothing of

the kind. On its face, the Amendment appears to extend early retirement eligibility to

the plaintiffs here.

By May 1995, having not heard whether the plaintiffs' applications for early

retirement benefits were approved or denied, counsel wrote to the Company to say he

was assuming benefits had been denied and he was administratively appealing that

decision. For the first time, he based the plaintiffs' claims for eligibility on the

Sixteenth Amendment. Realizing there was a serious drafting error in the Amendment,

the Company attempted to remedy the mistake in November 1995 by retroactively

amending new subsection (d) of § 5.2 of the Pension Plan with the Seventeenth

Amendment,4 "to clarify the intention of the Company and the Union with respect to

eligibility for certain early retirement benefits under [the] Closing Agreement":

A Participant (i) who is at least age 55 on December 21, 1993 or who has

completed at least 25 years of Accrued Service on December 21, 1993

and (ii) whose age (which must be at least 55 but not 60 as of

December 31, 1994) and Accrued Service would have equalled at least

the sum of 80 on or before December 31, 1994, if the Wellston plant had

not closed, shall be eligible to elect an Early Retirement Date on or after

the last day of the calendar month in which his employment is terminated.
5The District Court articulated several other reasons for holding that the plaintiffs

were ineligible for early retirement. We express no opinion on the court's rationale

except as discussed here.

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The administrative appeals were denied in July 1995 and the plaintiffs

consequently filed suit against the Company, the Pension Plan, and several of the

Company's welfare plans (early retirement eligibility also would have made the

plaintiffs eligible for benefits under certain welfare plans). In their complaint, the

plaintiffs (1) maintained that they were wrongly denied early retirement benefits under

the Pension Plan, as modified by the Sixteenth Amendment; (2) claimed damages for

supposed violations of fiduciary duties; and (3) sought statutory damages for alleged

failure to provide ERISA plan documents. The District Court heard evidence in a twoday bench trial in November 1997 and in September 1998 entered judgment for the

Company on all of the plaintiffs' claims. The plaintiffs appeal the denial of early

retirement benefits and the court's refusal to award statutory damages for failure to

provide plan documents.

In its findings of fact and conclusions of law, the District Court determined that

the Closing Agreement, a collectively bargained and properly executed agreement, is

a plan document and should be consulted, along with the Pension Plan itself (including

the Sixteenth and Seventeenth Amendments), when deciding whether the plaintiffs are

eligible for benefits. When the court then considered the controlling plan documents,

it was clear that a mistake had been made in drafting the Sixteenth Amendment. The

court concluded that the amendment should be reformed to reflect the intent of the

parties as set forth in the Closing Agreement, and thus agreed that the plaintiffs' claims

for benefits were properly denied.5 We review the District Court's findings of fact for

clear error and its conclusions of law de novo. 

The plaintiffs contend that the District Court erred in concluding that the Closing

Agreement should be consulted when evaluating their claims for benefits. It is true, as
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plaintiffs note, that a pension plan governed by ERISA "shall be established and

maintained pursuant to a written instrument." 29 U.S.C. § 1102(a)(1) (1994). But we

conclude in this case that it is not true, as the plaintiffs urge, that the written instrument

ERISA requires is the Pension Plan alone and that no other documents may be

considered by the plan administrator. 

The "written instrument" requirement is intended to ensure that participants are

on notice of the benefits to which they are entitled and their own obligations under the

plan. See Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 83 (1995); United

Paperworkers Int'l Union v. Jefferson Smurfit Corp., 961 F.2d 1384, 1386 (8th Cir.

1992). In addition, a written instrument provides guidelines, that likewise are known

to the participants, for the plan administrator as he makes coverage decisions. As we

explain below, these purposes are not thwarted by counting the Closing Agreement

among the plan documents to be consulted in administering the Company's Pension

Plan.

The Closing Agreement is itself a written instrument, a collectively bargained

agreement "reduced to writing and incorporated, in some fashion, into the formal

written ERISA plan provided to employees." Jefferson Smurfit, 961 F.2d at 1386; see

Richardson v. Pension Plan of Bethlehem Steel Corp., 112 F.3d 982, 983 (9th Cir.

1997) (noting that a "collectively bargained [pension] agreement [is] governed by

ERISA," and that a "different document, the Pension Plan, . . . implements the terms

of the Agreement"); International Union of Electronic, Electric, Salaried, Mach. &

Furniture Workers v. Murata Erie N. Am. Inc., 980 F.2d 889, 894 (3d Cir. 1992)

(construing collective bargaining agreement as "part of the Plan documents under

ERISA"); cf. 29 U.S.C. § 1024(b)(4) (Supp. III 1997) (requiring plan administrator,

upon written request of participant, to "furnish a copy of the latest updated summary[]

plan description, and the latest annual report, any terminal report, the bargaining

agreement, trust agreement, contract, or other instruments under which the plan is

established or operated") (emphasis added and footnote omitted). The Sixteenth
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Amendment to the Pension Plan explicitly refers to, and attempts to incorporate, the

Closing Agreement, noting that the amendment is intended "to reflect the provisions of

the Closing Agreement," and ¶ 7(b) of the Closing Agreement for its part specifically

directs the reader to the Pension Plan for the definition of the Rule of 80. Cf. Jefferson

Smurfit, 961 F.2d at 1386 (declining to enforce oral collective bargaining agreement

where "there was no reference at all in the plan to the collective bargaining agreement"

and "no reference in the written collective bargaining agreement" to the benefits

sought). Moreover, everyone involved – the plaintiffs, Union officials, the Company,

and the plan administrator – knew, and relied upon, the terms of ¶ 7(b) from the time

the Closing Agreement was ratified through its implementation. Those who were

newly eligible for early retirement under the Closing Agreement qualified for and began

receiving benefits as soon as their employment terminated, well before the Sixteenth

Amendment added subsection (d) to § 5.2 of the Pension Plan. In awarding these

benefits, the plan administrator adhered to the terms of ¶ 7(b) of the Closing

Agreement, not the terms of the original Pension Plan. This action comported with past

practice at the Company: referring to the terms of newly negotiated collective

bargaining agreements and awarding benefits under those writings before the Pension

Plan document was formally amended. On the facts of this case, we conclude that the

Closing Agreement is a plan document relevant to the plan administrator's decision

whether to award early retirement benefits to the plaintiffs. As such it cannot be

ignored.

After considering the controlling plan documents that bear on the issue here, it

is immediately apparent that taken together the writings create an ambiguity concerning

employee eligibility for early retirement. The Sixteenth Amendment to the Pension

Plan says one thing; ¶ 7(b) of the Closing Agreement and the Seventeenth Amendment

say something else. The different provisions cannot be reconciled. In this situation,

we apply the law of trusts and will consider extrinsic evidence in the record relating to

the intent of the parties and the circumstances surrounding the modification of the

original Pension Plan in order to decide whether it is ¶ 7(b) of the Closing Agreement
6We need not and do not decide whether the Seventeenth Amendment

retroactively modified § 5.2(d) of the Pension Plan.

7

It is not our intent to suggest that this lack of attention by the Company and its

counsel is excusable, but it does explain how the Plan was amended in a way that so

obviously fails to reflect the intent of the parties to the Closing Agreement.

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or the Sixteenth Amendment that controls the plaintiffs' eligibility for early retirement.6

See Jensen v. Sipco, Inc., 38 F.3d 945, 950 (8th Cir. 1994), cert. denied, 514 U.S.

1050 (1995).

It is worth noting that ¶ 7(b) of the Closing Agreement resulted from negotiations

between the Union and the Company that were taking place under the cloud of the

impending closure of the Wellston plant and the consequent loss of all plant jobs. See

John Morrell & Co. v. United Food & Commercial Workers Int'l Union, 37 F.3d 1302,

1304 (8th Cir. 1994) (reviewing bargaining history before deciding claim for benefits

because "it is usually unwise to construe collective bargaining agreements without

regard to their bargaining history"), cert. denied, 515 U.S. 1105 (1995). During

negotiations Union representatives sought to extend early retirement benefits to those

employees who were in a situation similar to that of the plaintiffs; they were not

successful. When all was said and done, and the agreement was ratified, neither Union

representatives nor Company representatives believed that the plaintiffs were to be

bridged to early retirement eligibility under the terms of ¶ 7(b). As for the Sixteenth

Amendment, it was drafted by outside counsel hired by Cooper Industries. The

attorney who drafted the amendment was not present at the plant closing negotiations

and she had not worked with Moog's Pension Plan in the past. (Moog Automotive was

acquired by Cooper Industries in 1992.) The Company officials who signed off on the

amendment admitted that they did not read it carefully before approving it.7 As a result,

the Sixteenth Amendment misstates the intent of the parties as expressed in ¶ 7(b) of

the Closing Agreement, notwithstanding the amendment's declaration that it reflects the

provisions of the Closing Agreement.
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None of the plaintiffs relied on the Sixteenth Amendment in deciding to terminate

his employment or "elect" early retirement, or in making any other employment

decision. The plaintiffs' employment with the Company was ending with the shutdown

of the Wellston plant irrespective of their eligibility for early retirement. They knew

nothing of the Sixteenth Amendment when they first sought to be found eligible for

early retirement; the amendment had yet to be drafted. When the Union ratified the

Closing Agreement in January 1994, and even later in the year when the Wellston plant

closed, it was plain from the terms of the Closing Agreement that the plaintiffs were not

entitled to early retirement benefits – and there was no Sixteenth Amendment to say

otherwise.

The plaintiffs are seeking to receive benefits to which they were not entitled

under any document or agreement existent when the Wellston plant was shut down.

In short, the plaintiffs had no reasonable expectation when they were terminated that

they would be eligible for early retirement. Determining early retirement eligibility

according to the terms of the Closing Agreement does not interfere with otherwise

vested benefits, while determining eligibility according to the terms of the Sixteenth

Amendment would give an entitlement to the plaintiffs that was never intended by

either the Company or the bargaining unit that represented the plaintiffs' interests. In

these circumstances, the Pension Plan, specifically the Sixteenth Amendment, must be

reformed "to reflect the provisions of the Closing Agreement." We therefore hold that

the District Court properly affirmed the plan administrator's denial of early retirement

benefits to the plaintiffs.

The plaintiffs also appeal from the District Court's decision not to award

statutory damages for the Company's alleged failure to provide plan documents to the

plaintiffs. If within thirty days a plan administrator "fails or refuses to comply with a

request" from a participant for information that the administrator is required by ERISA

to furnish, the court has discretion to award the participant statutory damages of up to

$100 per day for each day of violation. 29 U.S.C. § 1132(c)(1)(B) (1994) (subsection
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in effect at time of alleged violations). We review the decision to deny statutory

damages for an abuse of the court's discretion.

The District Court found that the plaintiffs' first request for documents was not

in writing, as required by ERISA, and that the first written request was not made to the

proper person. Further, the court determined that ERISA did not require the plan

administrator to furnish certain documents, such as welfare plan documents, when the

plaintiffs requested them and that the plan administrator timely provided the Pension

Plan documents when the plaintiffs made the request according to the procedures set

forth in ERISA. In any event, the court noted, even assuming some documents were

not furnished within the thirty-day window, they were produced in a reasonable time.

Because the plaintiffs were in no way prejudiced and there was no bad faith on the part

of the plan administrator, the court refused to award statutory damages. We hold that

the District Court's findings of fact are not clearly erroneous and that the court properly

exercised its discretion in declining to penalize the Company in these circumstances.

The judgment of the District Court is affirmed in all respects.

HEANEY, Circuit Judge, concurring.

I concur in the result reached by the majority because I am convinced that, in

fact, the company lawyer who drafted the Sixteenth Amendment made a scrivener's

error. I would be remiss, however, if I did not point out that this opinion will open the

door to claims by both employees and employers that a mistake was made in the

drafting of agreements that are covered by ERISA. In this case, there does not seem

to be a problem with correcting the lawyer's error because the union representatives

apparently agree that a mistake was made. This will not always be the case when a

drafting error is made and becomes part of a written agreement covered by ERISA.

Now, as I understand the opinion, the court will be able to look behind the written
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agreement to attempt to find the true intent of the parties. This may raise serious

problems in the future.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.