International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW); James Ward; Marshall Hunt; Richard Gordon, Plaintiffs-Appellees,
Kelsey-Hayes Company; TRW Automotive Holdings Corporation; Northrop Grumman Systems Corporation, Defendants-Appellants.
from the United States District Court for the Eastern
District of Michigan at Detroit. No. 2:11-cv-14434-Julian A.
Cook, District Judge.
Before: GILMAN, GIBBONS, and STRANCH, Circuit Judges.
court received a petition for rehearing en banc. The original
panel has reviewed the petition for rehearing and concludes
that the issues raised in the petition were fully considered
upon the original submission and decision on the cases. The
petition then was circulated to the full court. Less than a
majority of the judges voted in favor of rehearing en banc.
the petition is denied. Judge Gilman would grant rehearing
for the reasons stated in his dissent, and also joins Judge
GIBBONS, Circuit Judge, concurring.
case is one of three cases with related issues in which
opinions were filed, by cooperation of all three panels, on
the same date. No poll was requested in the other cases. At
the core of each case is interpretation of the particular
collective bargaining agreement (CBA) at issue in that case.
Resolution in each case depended on the examination of the
agreement's terms. In my view, the factual differences
between the cases determined the outcomes. Because the facts
dictated the results, the cases can be reconciled.
global issue of retiree health care guarantees is not
presented here. The issue in this case is whether the CBA at
issue provided comprehensive lifetime healthcare benefits for
covered retirees and their surviving spouses. The answer to
that question depended on a close examination of the
provisions of the CBA, the history of the parties, and
evidence that supported a finding that the UAW and
Kelsey-Hayes "understood the language in the 1998 CBA to
create lifetime healthcare benefits for Detroit plant
retirees." Kelsey-Hayes, 854 F.3d at 869. The
panel majority noted, "[s]pecifically, Kelsey-Hayes has
both acted in a manner that supports finding vested
healthcare rights and provided retiree plaintiffs with
additional written documentation that their healthcare was
for life." Id. This sort of factual focus
hardly presents a question of exceptional importance.
interpretation of Gallo v. Moen, Inc., 813 F.3d 265
(6th Cir. 2016), is the issue separating the majority and
dissents in Kelsey-Hayes and Reese v. CNH
Industrial N.V., 854 F.3d 877 (6th Cir. 2017). From my
perspective, Gallo represents a clear application of
the Supreme Court's message in M & G Polymers
USA, LLC v. Tackett, 135 S.Ct. 926 (2015), followed up
in Tackett v. M & G Polymers USA, LLC, 811 F.3d
204 (6th Cir. 2016) (Tackett III), to apply ordinary
contract principles. The Gallo panel looked to the
language of that particular CBA and also to the absence of
certain language, following the Supreme Court's caution
in Tackett: "when a contract is silent as to
the duration of retirement benefits, a court may not infer
that the parties intended those benefits to vest for
life." Tackett, 135 S.Ct. at 937;
Gallo, 813 F.3d at 268. In Gallo, the
pertinent facts were the presence of a general-duration
clause, coupled with the absence of any provision extending
the contract beyond its end date. If Gallo is
regarded as simply another case whose resolution depended on
examination of a factual record and application of old and
tested contract construction principles, there is no conflict
at all among our cases. The only tension arises from viewing
Gallo as more than a factual precedent and making it
a legal precedent for dissimilar cases. My position, set out
in section III.B of the Kelsey-Hayes majority, is
that Gallo by its terms does not have the meaning
suggested by the dissents in Kelsey-Hayes and
Reese but is merely a case where the contract was
unambiguous and did not vest benefits for life. If one takes
Gallo beyond that and treats it as articulating a
more generally applicable legal principle, it likely
conflicts with Tackett III, which is the earlier
case and controls.
though there was a general duration clause in the 1998 CBA
between the parties in Kelsey-Hayes, other language
created ambiguity about what the parties intended. Cole
v. Meritor, Inc., 855 F.3d 695, 699 (6th Cir. 2017) by
contrast, has facts the opinion called
"indistinguishable" from those in Gallo,
making Gallo an appropriate factual precedent for
that case. And Judge Gilman's dissent in
Kelsey-Hayes is based on an evaluation of that case
as also being factually indistinguishable from
Gallo, a point with which the majority disagreed.
Judge Sutton's concern that rehearing this case en banc
would not yield any productive results. A difference of
opinion about whether one case is factually similar to
another is not good fodder for en banc review. The differing
results in our cases are a natural byproduct of a necessarily
factual inquiry. There is no issue of exceptional importance
and no other basis for en banc review. For these reasons, I
concur in the denial of en banc review.
SUTTON, Circuit Judge, concurring. By nearly every measure,
this case deserves en banc review. Distinct perspectives on
the lifetime vesting of healthcare benefits in time-limited
collective bargaining agreements led us to release three
opinions on the same day that face in different directions.
See Cole v. Meritor, Inc., 855 F.3d 695 (6th Cir.
2017); Reese v. CNH Indus. N.V., 854 F.3d 877 (6th
Cir. 2017); UAW v. Kelsey Hayes, 854 F.3d 862 (6th
Cir. 2017). As I see it, some of those decisions are
inconsistent with M&G Polymers USA, LLC v.
Tackett, 135 S.Ct. 926 (2015), and some of them contrast
with the approach our sister circuits have taken on the same
issue, see Noe v. PolyOne Corp, 520 F.3d 548 (6th
Cir. 2008) (Sutton, J., dissenting) (collecting cases).
intra-circuit split accompanied by an inter-circuit divide
followed by lack of conformity to a Supreme Court decision
normally warrants en banc review. But in this instance there
is good reason to fear that a majority of the en banc court
would fail to agree on a majority view. One of the three
cases mentioned above, Reese, illustrates the
problem. In that case, three judges reached three different
conclusions on the same issue. One view was that the
collective bargaining agreement was ambiguous and extrinsic
evidence resolved that ambiguity as a matter of law in favor
of unalterable lifetime benefits for the retirees.
Reese, 854 F.3d at 887 (Donald, J., concurring). A
second view was that a lifetime promise existed but was
subject to reasonable alteration by the employer.
Id. at 878-87 (Gibbons, J.). A third view was that
the promise was limited by the six-year term of the
collective bargaining agreement. Id. at 887-93
(Sutton, J., dissenting). With 16 judges on the en banc
court, there is a real possibility that we would not ...