Senior v. NSTAR Electric & Gas Corp.

United States Court of Appeals
For the First Circuit

No. 05-2015

CHARLES J. SENIOR; NORMAN FAHY; RONALD D. PHIPPS; RAYMOND W.
POSTMA; THOMAS G. HIRL; GARRETT M. FAGAN; UNITED STEELWORKERS OF
AMERICA, LOCAL 12004,

Plaintiffs, Appellants,

v.

NSTAR ELECTRIC AND GAS CORPORATION; COMMONWEALTH GAS COMPANY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Edward F. Harrington, Senior U.S. District Judge]

Before

Selya, Lynch, and Lipez,
Circuit Judges.

Abigail V. Carter, with whom John M. West and Bredhoff &
Kaiser, P.L.L.C. were on brief, for appellants.
Keith B. Muntyan, with whom Robert P. Morris and Morgan,
Brown & Joy were on brief, for appellees.

May 31, 2006
 LYNCH, Circuit Judge. The question presented is whether

former utility company employees who took advantage of early

retirement programs are entitled by reason of a labor agreement to

vested lifetime dental benefits that could not be changed by the

company. Such dental benefits are not given to other former

employees or to present employees. These benefits are welfare

benefit plan benefits under the Employee Retirement Income Security

Act of 1974 (ERISA), 29 U.S.C. §§ 1001-1461. "Welfare benefit

plans" -- plans that provide "medical, surgical, or hospital care

or benefits, or benefits in the event of sickness, accident,

disability, death or unemployment," id. § 1002(1) -- are not

subject to the strict vesting requirements of ERISA pension benefit

plans. Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78

(1995). Employers are "generally free . . . for any reason at any

time, to adopt, modify, or terminate welfare plans." Id.

Employers may provide retirees with vested retiree

welfare benefits by contract or otherwise. "[U]nder both section

301 [of the Labor Management and Relations Act (LMRA)] and ERISA,

if an employer promises vested benefits, that promise will be

enforced." Am. Fed'n of Grain Millers v. Int'l Multifoods Corp.,

116 F.3d 976, 980 (2d Cir. 1997). The issue, then, is whether the

labor agreements here provided for vested lifetime dental plan

benefits that could not be changed by the company. The standard by

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which this question is evaluated is one of first impression in this

court.

Retired union employees of Commonwealth Gas Company and

their union, the United Steelworkers of America, Local #12004,

filed suit against the retirees' former employer and its successor,

NSTAR Electric & Gas Corporation. The plaintiffs took advantage of

one of two early retirement programs offered by the company, one in

1997 and one in 1999. These early retirement programs ("ERPs")

were negotiated between the company and the union, and the

negotiated terms were memorialized in two memoranda of agreement

(the "ERP agreements"). These ERP agreements are enforceable under

§ 301 of the LMRA, 29 U.S.C. § 185(a).

The ERPs offered retirees continuing health and dental

benefits, in line with the benefits that had been given to retirees

by the company before the ERPs. In late 2002, the company

announced a number of changes, including the change that company-

paid dental benefits for all retirees ceased once the retiree

reached sixty-five years of age, unless the retiree had already

reached that age as of April 1, 2003.

The plaintiffs brought suit, alleging that the decision

to cease reimbursement of their Medicare Part B premiums and dental

plan coverage violated, inter alia, § 301 of the LMRA, 29 U.S.C.

§ 185(a), and § 502(a)(1) of ERISA, id. § 1132(a)(1)(b), because,

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in their view, the decision was contrary to the ERPs which were

part of the 1997 and 1999 ERP agreements.

The district court granted the company's motion for

summary judgment on all counts. See Senior v. NSTAR Elec. & Gas

Corp., 372 F. Supp. 2d 159, 168 (D. Mass. 2005). Although

plaintiffs originally styled their case as raising claims both

under ERISA and § 301, their claims, as reframed on appeal, are in

fact dependent upon an interpretation of the labor agreements and

otherwise state no independent ERISA claim.1 We analyze the case

under § 301 of the LMRA.

We affirm, though on different grounds than those relied

on by the district court.

I.

We recount the facts, taking all reasonable inferences in

favor of the plaintiffs, the non-moving parties, as is done on

summary judgment motions. See Douglas v. York County, 433 F.3d

143, 145 (1st Cir. 2005). The basic facts are not in dispute. To

understand the dispute about the benefits provided for in the 1997

and 1999 ERPs at issue here, one needs to understand the status of

those benefits before adoption of the ERPs.

1
Only the union and retirees who took advantage of the ERPs
remain parties to this appeal. Charles J. Senior (now deceased)
and Garrett M. Fagan retired in 1980 and 1993, respectively, before
the ERPs were in place. Norman Fahy and Ronald D. Phipps retired
under the 1997 ERP, and Thomas G. Hirl and Raymond W. Postma
retired under the 1999 ERP.

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A. Retiree Dental Benefits Predating the ERPs

1. Retiree Dental Benefits Prior to April 1, 1993

From April 1, 1973 to April 1, 1993, the collective

bargaining agreements ("CBAs") between the company and the union

provided dental benefits for current employees; the CBAs specified

a particular dental plan and incorporated the terms and conditions

of that plan. The CBAs did not, however, explicitly provide dental

benefits for retirees. Still, the record reveals that union

employees of Commonwealth Gas were given dental benefits upon

retirement during this period.

The plaintiffs put into evidence personalized retirement

benefits summaries, prepared by the company's benefits coordinator,

which were given to union employees who retired before 1993 (and

who are not plaintiffs here). These summaries described expected

benefits, including pension payments, the employee savings plan,

disability benefits, and life, medical, and dental insurance. One

such summary given to an employee who retired in 1975 stated, as to

dental coverage, in full: "Your Dental Plan coverage will continue

for you, your spouse and your dependent children." The summary

also contained references to plan documents: "In all cases, the

exact provision of the various Benefit Contracts and applicable

laws will determine the benefits to be paid thereunder."

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 Similar retirement benefits summaries were given to

employees retiring in 1979, 1980, 1982, 1990, and 1991,2 and

contained nearly identical language concerning continued dental

plan coverage3 and identical references to plan documents.

2. Retiree Dental Benefits After April 1, 1993

The 1993 CBA (covering the period from April 1, 1993 to

April 1, 1996), like the agreements predating it, did not

explicitly address retiree dental benefits, but provided for dental

benefits for "[e]ligible employees": "Eligible employees, and their

eligible spouses and dependents, will be covered under the terms

and conditions of Dental Service of Massachusetts, Inc., DPP II, as

amended, the provisions of which are made a part of this contract."

However, on April 13, 1993, the 1993 CBA was amended,

effective April 1, 1993, to provide with respect to dental benefits

for qualified employees who retired after April 1, 1993:

2
An earlier handwritten draft summary of benefits given to
the employee who retired in 1991 described the dental benefits as
"[c]overage for life" and provided: "In the event of your death,
your wife will remain covered for one year." This draft also
contained the following disclaimer: "NOTE: NOT AUDITED AND SUBJECT
TO CORRECTION." This employee received a subsequent personalized
benefits summary in line with the other summaries described.
3
These documents state: "Your Dental Plan coverage will
continue for you, your spouse and dependent children whether or not
you retire at age 65."

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 DENTAL PLAN

Benefits After Retirement or Termination

If you were age 40 or over with 12 or more
years of service as of January 1, 1993 and
subsequently retire or terminate with the
"Rule of 75"[4] (with the System Companies) you
WILL BE eligible for the COM/Energy sponsored
Delta Dental Plan. If you retire or terminate
prior to age 62, you will pay 10% of dental
premiums in effect as of January 1, of the
year in which you terminate or retire. When
you reach age 62, COM/Energy will pay your
entire premium.

This amendment did not change retiree benefits, but only clarified

the eligibility requirements for benefits, at least with respect to

employees covered by the contract.5 The dental benefits provided

in the 1997 and 1999 ERPs closely mirrored the dental benefits

already provided to union retirees via the amendment to the 1993

CBA.

The personalized summaries given after April 1, 1993 to

retiring employees reflected the new agreement. One such document

given to a union employee retiring in 1995, entitled "Information

Relative to Employee Benefits Upon Your Retirement Date," stated,

for covered retirees meeting the threshold requirements: "Your

Dental Plan coverage will continue for you, your spouse and

4
In the amendment to the 1993 CBA, the "Rule of 75" was
defined as the age of the employee plus the years of service.
5
The company provided no dental benefits for retiring
employees not meeting the age and length of service requirements as
of January 1, 1993.

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eligible dependents," and "you will pay 10% of the current premium

(January 1, premium at retirement) from age 55 to age 62. When you

reach age 62, the Company will pay the entire premium." The

summary also contained the same reference to plan documents as

earlier personalized retirement benefits summaries: "In all cases,

the exact provisions of the various Benefit Contracts and

applicable laws will determine the benefits to be paid thereunder."

The 1996 CBA (covering April 1, 1996 to April 1, 2002)6

again does not make explicit reference to the eligibility

requirements for retiree benefits, providing only that "[e]ligible

employees, and their eligible spouses and dependents, will be

covered under the terms and conditions of Dental Service of

Massachusetts, Inc., DPP II, as amended, the provisions of which

are made a part of this contract." However, the plaintiffs, in

response to interrogatories, admitted that the 1996 CBA did not

change the retiree benefits established by the amendment to the

1993 CBA.

Indeed, with respect to dental benefits, a personalized

retirement benefits summary given to an employee who retired on

July 1, 1996 (after the effective date of the 1996 CBA) contained

language identical to the 1995 personalized benefits summary

described above. It appears that under the 1996 CBA, retirees were

6
All plaintiffs retired during the period this CBA was in
effect.

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eligible for dental benefits to the same extent as provided in the

amendment to the 1993 CBA.

This sets the stage for the dispute about the ERP

benefits.

B. Dental Plan Documents

Again, we give the background, working up to the time of

the ERPs. Much of the dispute here relates to the documents

governing retiree dental plans, and the extent to which we must

look to these documents when interpreting the 1997 and 1999 ERP

agreements.

It is undisputed that the dental plan contracts during

all relevant times reserved the right of the company to amend,

modify, or terminate the applicable dental plan (although the

plaintiffs point out that at times these reservations are made

subject to applicable collective bargaining agreements).7 The

documentary evidence on record supports this conclusion.8 Three

7
The record is unclear as to which plans applied to which
employees and retirees, and when the underlying dental plan
documents were in effect, during the relevant times in this case.
Indeed, the company's own benefits coordinator, in deposition
testimony, expressed considerable confusion about the dates the
various benefits plans were in effect.
8
The company put into evidence excerpts from two company
documents, dated January 1, 1993, entitled "Post Retirement Benefit
Program-Group I" and "Post Retirement Benefit Program-Group II."
The company points to an identical reservation clause in both
documents. In part, that clause states: "Subject to the provisions
of Section 8.03 of Part I hereof, the Company, through the Plan
Administrator, may terminate the Program or discontinue Benefits
hereunder at any time upon written notice to the affected Trustee

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key points are not in dispute: that such plan documents were

explicitly incorporated into the 1993 and 1996 CBAs, that the

plaintiffs here received the plan documents, and that the separate

memoranda of agreement which created the ERPs in 1997 and 1999 do

not contain an explicit reference to plan documents.

The company periodically distributed summary plan

descriptions (SPDs) for the dental plans to all employees; these

are, in part, the "plan contracts" or "plan documents" referred to

in the CBAs and other documents. One such SPD, for the "Dental

Protection Plan II" offered by Delta Dental Plan, contains a

revision date of June 1991.9 As to termination, the SPD provides:

and/or Insurer."
The import of these documents is not entirely clear. The
plaintiffs and the company agree that the documents are related to
the creation of a funding mechanism for the company's retirement
obligations. The plaintiffs argue that the reservation clauses in
these documents only reserved the right to terminate the funding
mechanism for the retirement benefit plans, not the plans
themselves. The plaintiffs point to deposition testimony of
company managers that these documents were not given to employees,
although they also cite to these documents and describe them as an
excerpt from the "Employee Benefit Handbook." The company for its
part describes these documents as "underlying plan documents" that
are somehow controlling but does not make an effort to demonstrate
how these documents are tied to the collective bargaining
agreements.
In any event, the company has failed to provide a sufficient
evidentiary basis for us to rely on these documents. It put into
the record only a single page from the documents, containing the
reserved right of termination, and did not put into the record
"Section 8.03 of Part I," to which the reserved rights of
termination are subject.
9
This SPD also states that "[t]he information contained
herein is updated through April 1, 1990." It is unclear how the
various dates on this and other SPDs relate to the period that the

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"Your plan sponsor may cancel your contract for any reason." In a

section titled "Rights," that SPD also provides: "Although

Commonwealth Energy System and Subsidiary Companies intends to

continue this plan indefinitely, it reserves the right to amend any

provisions or terminate the plan at any time."

Another SPD (with a revision date of January 1994) for

the "DeltaPremier II" plan, also offered by Delta Dental Plan of

Massachusetts, similarly provides for the company's unrestrained

right to terminate the plan: "Your plan sponsor may cancel your

contract for any reason. To do so, your plan sponsor must give us

notice in writing at least 30 days prior to the termination date."10

An SPD issued in 1996 as part of an "Employee Benefits

Handbook" stated, at the end of the section describing the

"DeltaPremier II Plan," under the heading "Your Rights":

This section of the Handbook describes the
DeltaPremier II Plan in general. If any
conflict arises between this Summary Plan
Description and the Plan contract, or if any
point is not covered, the terms of the Plan
contract will always govern.

SPDs were in effect. It is conceivable, and in one case,
relatively clear, that the documents were used long after being
revised or updated.
10
The "Delta Protection Plan II" and the "DeltaPremier II"
appear to be the plans referred to in the 1993 and 1996 CBAs. The
CBAs refer to "Dental Service of Massachusetts, Inc., DPP II." As
SPDs for both plans explain, the Dental Service of Massachusetts,
Inc. was doing business as Delta Dental Plan, and at the bottom of
the cover pages of the SPDs there is the notation "DPP II."

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 The company reserves the right, subject to the
provisions of any collective bargaining
agreement, to amend, modify or terminate the
Plan at any time.

Similar language appeared at the end of another SPD for the "Dental

Blue Program 2" issued as part of the same handbook. In both these

SPDs, the reserved rights of the company are constrained by the

"provisions of any collective bargaining agreement."

In February 1997, the company sent to employees a package

of updated SPDs. This package included an SPD (with a revision

date of September 1, 1993) for the "Dental Blue Program 2" offered

by Blue Cross and Blue Shield of Massachusetts. It contains an

unconditional right to termination: "Your Plan Sponsor may

terminate your contract for any reason." But the document also

contains language, under the heading "Your Rights," substantially

similar to the language under that same heading quoted from the

1996 SPD, making the reserved rights "subject to the provisions of

any collective bargaining agreement."11 Fahy and Phipps received

these SPDs after they elected to participate in the 1997 ERP.12

11
The record does not tell us whether the 1996 SPDs contained
termination language allowing the plan sponsor to "terminate [the]
contract for any reason", in addition to the "Your Rights" language
reserving the right "subject to the provisions of any collective
bargaining agreement, to amend, modify or terminate the Plan at any
time." The record contains only an excerpt of the 1996 SPDs that
contains the "Your Rights" language.
12
The "Dental Blue Program 2" appears to have covered two of
the plaintiffs during some period of time. In their brief, the
plaintiffs state that "the Dental Blue Program II . . . from 1994
through December 31, 1999, covered retirees of COM/Energy and its

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C. The Early Retirement Programs

1. 1997 Personnel Reduction Program

In 1997, after Commonwealth Gas and Commonwealth Electric

merged, the new entity, COM/Energy, established an ERP for non-

unionized company employees called the Personnel Reduction Program

("PRP"). The company also entered into negotiations with Local

#12004 to allow the union employees to take advantage of the PRP.

These negotiations resulted in a memorandum of agreement, effective

May 13, 1997. The agreement specified that employees taking

advantage of the PRP would receive a severance payment, educational

and outplacement assistance, and group life insurance. The

agreement provided:

Health/Dental Insurance Coverage:
. . . .

Employees who were at least age forty (40) and
had completed at least twelve (12) full years
of System service as of January 1, 1993 and
currently meet the "Rule of 75" will be
entitled to medical and dental insurance
coverage providing they pay ten percent (10%)
of the current medical and dental premium
until age sixty-two (62). At age 62, the
Company will pay 100% of the premium.

Thus, this ERP agreement provided the retirement benefits to

certain long-term union retirees, as plaintiffs here were, on the

predecessors and successors, including the plaintiffs." Plaintiffs
Fahy and Phipps both retired on November 1, 1997; plaintiffs Hirl
and Postma retired on April 1 and March 1 of 2000, respectively.

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same terms as had been provided to retirees since April 1, 1993.13

It also preserved the date against which one aspect of eligibility

was to be measured, so that only employees who had met the age and

length of service requirements as of January 1, 1993, and then

retired after meeting the Rule of 75, could receive the dental

benefits described. This latter provision insured that the PRP, on

this issue, would not provide greater benefits than available

earlier. There is nothing in the bargaining history for this ERP

agreement showing that the company and the union had agreed to

increase the dental benefits for employees retiring under the PRP,

and make them vested and unchangeable.

The company gave to both union and non-union employees a

brochure entitled "Personnel Reduction Program: Information for

Commonwealth Energy System and Subsidiary Companies Employees" in

1997. The brochure contained information about the benefits

available via the Personnel Reduction Program. The brochure

describes dental benefits in language identical to that found in

the memorandum of agreement; these same benefits terms also applied

to non-union employees. The brochure, however, also pointed

employees to the plan documents and said that in case of conflict,

the plan documents prevailed:

This summary is not intended to offer detailed
descriptions of the System's employee benefit

13
The PRP provided short-term dental plan coverage for
employees not meeting the eligibility requirements.

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 plans. All information furnished is governed
by the provisions of the actual plan documents
pertaining to the appropriate benefit plans.
If any conflict arises between this summary
and the System's employee benefit plan
documents, or if any point is not covered, the
terms of the appropriate plan documents will
govern in all cases.

The plan documents, in turn, contained the reservation of the

company's right to modify or terminate the plan.

Plaintiffs support their argument that the agreement

granted vested lifetime benefits that could not be changed with two

sets of items in evidence. The first are oral statements. Fahy

and Phipps expressed interest in the PRP and met with the company's

human resources personnel on several occasions. At these meetings,

Fahy and Phipps were told that the benefits were lifetime benefits.

They were not told this could be revised at any time.

Further, in October of 1997, Fahy and Phipps were each

given a personalized document entitled "Information Relative to

Employee Benefits Upon Your Retirement Date," similar to the

personalized retirement benefits summaries given to retirees before

the PRP. As to dental insurance, for both Fahy and Phipps the

summary provided:

Since you were age 40 and had 12 or more years
of employment as of January 1, 1993, you will
be covered by the Company sponsored dental
plan at your Actual Retirement Date.

You will pay 10% of the current premium (the
premium in effect as of the first of the year
in which you retire) from age 55 to age 62.

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 When you reach age 62, the Company will pay
the entire premium.

Coverage for your spouse and/or eligible
dependents will be provided.

Your dental coverage will be for your life.
Your spouse and/or eligible dependents will be
covered for 12 months after your death. . . .

(emphasis added). These personalized documents differed from

earlier such documents in that they stated that "dental coverage

will be for your life" and that the retiree's spouse and dependents

would receive benefits for a period after the retiree's death. The

earlier personalized documents had provided only that the retirees

dental benefits would "continue." Nonetheless, the personalized

documents given to Fahy and Phipps also provided the same reference

to the plan documents as the PRP brochure, i.e., that "the terms of

the appropriate plan documents will govern in all cases."

Fahy and Phipps later received a series of SPDs,

including the SPD for the dental plan (Dental Blue Plan). These

plan documents contained reservation of rights language. This was

not the first time these plaintiffs had received the SPDs; rather,

SPDs for all the benefit plans were distributed periodically to all

employees.

2. 1999 Voluntary Separation Program

In 1999, COM/Energy merged with BEC Energy (the parent

company of Boston Edison) and formed a new holding company, NSTAR.

As part of this merger, the company created another ERP for

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employees, the Voluntary Separation Program ("VSP"). Negotiations

between the company and the union resulted in another memorandum of

agreement, effective August 4, 1999, allowing union employees to

take advantage of the VSP. The memorandum of agreement provided

that "the Company will offer the following Voluntary Separation

Program (VSP) to all employees that are members of the United

Steelworkers of America, Local #12004." At least with respect to

health and dental benefits, the 1999 VSP agreement was identical to

the 1997 PRP agreement (with the exception of a slight difference

in COBRA payments for retirees who did not meet the age and length

of service requirements). It too preserved the January 1, 1993

date against which one aspect of eligibility for the dental

benefits at issue here was to be measured. Like with the 1997 ERP

agreement, there is nothing in the bargaining history for the 1999

ERP agreement to suggest that the parties intended to provide

unchangeable lifetime dental benefits to employees taking advantage

of the VSP.

Two versions of a "Program Summary" describing the VSP

were given to employees, one for employees represented by certain

unions (including Local #12004) and one for all other employees

(including all non-union employees). Neither version contained the

particulars of the post-retirement dental benefits. They stated

that "[i]f you are eligible for post-retirement medical, dental and

live insurance coverages, you will receive information from Human

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Resources-Benefits at the time of your termination." Both versions

stated that "[i]f any conflict arises between this summary and

either the Company's employee benefit plan documents or the

Agreement and General Release, or if any point is not covered, then

the terms of the appropriate plan documents or Agreement and

General Release, as appropriate, will govern in all cases."

However, the version of the program summary that was

distributed to non-union employees, in contrast to the union

employees, contained the following statement: "The Company

reserves the right to change or terminate coverage for current and

former employees at any time. Any such change may be in the

benefits provided, the contributions required, or in any other

aspect in accordance with applicable laws." Hirl and Postma point

to the lack of such a statement in the version of the VSP program

summary given them as evidence that, as to members of Local #12004,

the company intended the benefits to be unconditionally perpetual.

Plaintiffs Hirl and Postma expressed interest in the VSP

and met with company representatives. At these meetings, Postma

was told that his dental benefits would continue for as long as he

lived and Hirl was told that nothing in the contract could be

changed. Hirl and Postma each received individualized retirement

summaries; these summaries are identical to the personalized

summaries given to plaintiffs Fahy and Phipps under the 1997 PRP as

to the description of dental coverage ("Your coverage will be for

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your life.") and the reference to plan documents ("All information

furnished is governed by the provisions of the actual plan

documents pertaining to the appropriate benefit plans.").

The plaintiffs do not dispute that SPDs were periodically

distributed to all employees, and do not suggest that Hirl and

Postma did not have access to or knowledge of the SPDs.

D. Cancellation of Retiree Dental Benefits

For a number of years after the formation of NSTAR, the

company maintained separate retiree health plans for retirees of

COM/Energy and Boston Edison. The company decided to consolidate

these plans on April 1, 2003, and in so doing, to make a number of

changes to retiree health benefits, including terminating dental

plan coverage for certain retirees and ceasing reimbursement of

Medicare Part B premiums for all retirees.

In late 2002, the company notified the plaintiffs and

other retirees (including non-union retirees) that if they had not

reached age 65 by April 1, 2003, their company-provided dental

benefits would cease as soon as they reached age 65; retirees who

had reached age 65 by that date would continue to receive dental

benefits for life. The plaintiffs here were not age 65 as of April

1, 2003. Plaintiffs Fahy and Phipps lost their dental benefits

after turning 65, and Hirl and Postma expect to lose their dental

benefits as soon as they turn 65. The letter also stated that

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Medicare Part B reimbursements would stop for all retirees on April

1, 2003.

The company says the changes to retiree benefit plans

were needed to save money on retirement benefits, normalize the

benefits among retirees of Boston Edison and COM/Energy, and align

retiree medical plans with those offered to current employees;

Boston Edison retirees never received post-65 dental benefits,

while Commonwealth Gas retirees did. The company also notes that

some of the changes provided additional benefits to retirees.

Present employees who retire will not receive post-65 dental

benefits.

II.

After the company announced its changes to retiree health

and dental plan coverage, the plaintiffs filed suit challenging the

termination of dental coverage and Medicare Part B reimbursement.

The complaint alleged violations of § 502(a)(1)(B) of ERISA, which

provides a remedy for an improper denial of benefits, 29 U.S.C.

§ 1132(a)(1)(B), and of § 301 of the LMRA, which provides a remedy

for a "violation of contracts between an employer and a labor

organization", id. § 185(a), as well as claims based on theories of

breach of fiduciary duty and estoppel under ERISA, and claims under

state law.

After discovery, plaintiffs and the company filed cross-

motions for summary judgment. On May 31, 2005, the district court

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denied the plaintiffs' motion and granted the company's motion on

all counts. Senior, 372 F. Supp. 2d at 159. Judgment entered

against the plaintiffs. The plaintiffs challenge on appeal the

district court's decision only as to their claim that the

termination of dental coverage violated § 301 of the LMRA. The

Medicare Part B reimbursement issue has dropped from the case.

The district court did not specifically anchor its

reasoning as to the claims for dental benefits in the LMRA,14

although it did reject plaintiffs' reliance on the ERP agreements

and the program brochures, stating: "None of these documents . . .

make any mention of vesting, and they do not indicate the duration

of the dental benefits. As such, they are not sufficient to show

that the retirees' dental benefits were vested." Id. at 166 n.7.

The district court found that the only documents with

explicit language suggesting a vesting of dental benefits were the

individualized benefits summaries given to each of the plaintiffs,

which stated that "[y]our dental coverage will be for your life."

It also noted that the individualized summaries directed the

14
Indeed, it is unclear whether the district court addressed
the plaintiffs' LMRA § 301 claim with respect to dental benefits at
all; the court mentioned only the plaintiffs' ERISA claim. The
plaintiffs' complaint specifically raises an LMRA claim for
termination of dental benefits. In their memorandum in support of
summary judgment, the plaintiffs did not explicitly differentiate
between the LMRA and ERISA claims regarding termination of dental
coverage; however, the plaintiffs did argue that the company had
violated the ERP agreements. Moreover, on appeal both plaintiffs
and the company treat the district court as having decided the
plaintiffs' LMRA § 301 claim.

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retiree to consult "actual plan documents"; these documents

reserved the right of the company "to amend, modify or terminate

the Plan at any time." Id. at 166-67. The court rejected the

plaintiffs' argument that this reservation of rights language only

gave the company the right to terminate a particular policy with a

particular provider, but that coverage was to be perpetual. Id. at

167. It thus "refuse[d] to infer a vesting requirement based on

personalized documents that plainly state they are not governing."

Id.

III.

We review the district court's entry of summary judgment

de novo, drawing all reasonable inferences in favor of the

plaintiffs. We may affirm on any ground supported by the record.

See Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19-20 (1st Cir.

2003).

We wish to be clear about what the case is about. This

is not an issue of whether some documents in the ERPs stated that

there would be lifetime dental benefits. The question is, rather,

about whether there is a triable issue of fact that such a

statement, when coupled with a reservation by the company of its

right to change benefits, in light of the bargaining history and

practice, usage and custom here, amounts to a promise by the

company never to change the benefits announced.

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 Interpretation of labor contracts, such as the ERP

agreements, under the LMRA is a matter of federal common law. See

Fant v. New Eng. Power Serv. Co., 239 F.3d 8, 14 (1st Cir. 2001).

The retirees bear the burden of proving that their welfare plan

benefits are vested and cannot be changed by the company. See

Int'l Ass'n of Machinists & Aerospace Workers v. Masonite Corp.,

122 F.3d 228, 231 (5th Cir. 1997); UAW v. Skinner Engine Co., 188

F.3d 130, 138-139 (3d Cir. 1999).

Acting against the background law that welfare plan

benefits are generally not vested, Intermodal Rail Employees Ass'n

v. Atchison, Topeka & Santa Fe Ry. Co., 520 U.S. 510, 515 (1997),

the circuits have taken somewhat different approaches to resolving

the question of whether a labor agreement has created vested rights

in benefits also covered by ERISA. The district court used the

test that unless the labor agreement contained a clear and express

statement of vesting, there is no vesting of ERISA benefits. We

reject that clear and express statement test, in this situation, as

not compelled by federal labor law.15

15
The clear and express statement test came from the very
different problem of whether welfare benefits automatically
terminate upon the expiration of a labor agreement which is
otherwise silent on the issue. See, e.g., Rosetto v. Pabst Brewing
Co., 217 F.3d 539 (7th Cir. 2000); Joyce v. Curtiss-Wright Corp.,
171 F.3d 130 (2d Cir. 1999); Keffer v. H.K. Porter Co., 872 F.2d 60
(4th Cir. 1989). Further, this case does not involve the issue of
whether benefits survive an individual severance agreement. See
Smart v. Gillette Co. Long-Term Disability Plan, 70 F.3d 173 (1st
Cir. 1995).

-23-
A. Rejection of Use of Presumptions Here

Under the federal law governing the interpretation of a

labor contract under the LMRA, a court should resort to traditional

principles of contract interpretation to the extent such principles

are consistent with federal labor law. See Textile Workers Union

of Am. v. Lincoln Mills, 353 U.S. 448, 456 (1957); see also Yolton

v. El Paso Tenn. Pipeline Co., 435 F.3d 571, 580 (6th Cir. 2006);

Skinner Engine, 188 F.3d at 138; Masonite, 122 F.3d at 231; United

Paperworkers Int'l Union v. Champion Int'l Corp., 908 F.2d 1252,

1256 (5th Cir. 1990).

The parties take exaggerated positions, relying on

optimistic readings of cases, to suggest that federal labor law

requires us to abandon traditional contract principles and apply a

presumption in their favor. The retirees argue that they are

entitled to a presumption in labor agreements for vesting of

benefits in their favor; the company argues that there should be a

presumption in labor agreements against vesting of benefits.

Neither is correct.

The plaintiffs rely on an old Sixth Circuit decision, UAW

v. Yard-Man, 716 F.2d 1476 (6th Cir. 1983), which that circuit has

since held does not stand for the proposition that there is a

presumption in favor of vesting benefits.16 In Yolton, 435 F.3d

16
The court in Yard-Man found that retiree welfare benefits
had been vested under a CBA. The court relied, in part, on its
understanding that "retiree benefits are in a sense 'status'

-24-
571, the court said: "All that Yard-Man and subsequent cases

instruct is that the Court should apply ordinary principles of

contract interpretation." Id. at 580.17

The company, in turn, overreads Skinner Engine Co., 188

F.3d 130, which involved construction of a CBA that provided for

retiree welfare benefits. The court found that the promise of

benefits did not extend beyond the term of the CBA. In doing so,

it stated that under ERISA, "[b]ecause 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 explicit language," and that this

"cautionary principle[]" applied to the interpretation of

collective bargaining agreements as well. Id. at 139. We do not

read Skinner Engine to set forth a strict clear and explicit

statement rule as suggested by the defendants. The bulk of the

benefits which, as such, carry with them an inference that they
continue so long as the perquisite status is maintained." 716 F.2d
at 1482 (internal citations omitted).
It is doubtful that Yard-Man itself stands for the broad rule
that plaintiffs ascribe to it. The "inference" was described as
merely a "contextual factor buttress[ing] already sufficient
evidence of such intent in the language of the agreement itself."
Id. at 1482. The court in Yard-Man relied, in the main, on
"traditional rules of contract interpretation" to find that the
contract was unambiguous. See id. at 1479-82 (interpreting the
language of the contract as a whole, and the "context in which the
benefits arose" (emphasis added)).
17
A number of circuits have criticized Yard-Man, to the extent
it can be read as supporting a presumption in favor of vesting.
See, e.g., Champion, 908 F.2d at 1261 n.12; Anderson v. Alpha
Portland Indus., Inc., 836 F.2d 1512, 1517 (8th Cir. 1988).

-25-
court's opinion in Skinner Engine relied on "traditional rules of

contract construction" to determine the meaning of the CBA. Id. at

141 (quoting Yard-Man, 716 F.2d at 1429); see also id. at 138-41

(relying on language and context, and rejecting extrinsic evidence

provided by plaintiffs). In addition, the court in Skinner

Engine undertook an extended discussion of the plaintiffs' argument

that the contract was ambiguous, which likely would have been

unnecessary had the court in fact relied on a strict clear and

express statement rule. See id. at 144-47.18

Our view is that in a claim for benefits based on a labor

agreement under the LMRA federal labor law creates no presumption

regarding vesting. This is in line with the view of some other

circuits. See Rosetto v. Pabst Brewing Co., 217 F.3d 539, 546 (7th

18
The company also points to a number of circuits that require
a clear and express statement of vesting in the purely ERISA
context. See, e.g., Sprague v. Gen. Motors Corp., 133 F.3d 388,
400 (6th Cir. 1998) (en banc); Gable v. Sweetheart Cup Co., 35 F.3d
851, 855 (4th Cir. 1994); Wise v. El Paso Nat. Gas Co., 986 F.2d
929, 937 (5th Cir. 1993). The plaintiffs, in reply, point to
circuits which have declined to impose such a strict clear and
explicit statement of vesting requirement in the ERISA context.
See, e.g., Barker v. Ceridian Corp., 122 F.3d 628, 636-37 (8th Cir.
1997).
Not surprisingly, different circuits also have different
approaches to the question of whether the same interpretive model
should be used in the both the ERISA context and the LMRA context.
Compare Rosetto, 217 F.3d at 544 (rejecting requirement of clear
and express statement in both the LMRA and ERISA contexts), and
Grain Millers, 116 F.3d at 979 (same), with Sprague, 133 F.3d at
400 (requiring clear and express statement of vesting in pure ERISA
cases), and Maurer v. Joy Techs., Inc., 212 F.3d 907, 915-16 (6th
Cir. 2000) (not requiring express statement of vesting in CBA cases
despite en banc decision in Sprague).

-26-
Cir. 2000); Grain Millers, 116 F.3d at 980. There are many reasons

for our view. It certainly is possible that labor and management

could bargain and intend to provide vested retirement welfare

benefits that could not be changed as part of an early retirement

plan or a voluntary severance plan, and yet fail to put in certain

customary words.19 We fear that the use of presumptions may

interfere with the correct interpretation, under normal LMRA rules,

of the understanding reached by the parties. Secondly, the use of

presumptions may also be inconsistent with the dynamics of

bargaining set up under the National Labor Relations Act, 29 U.S.C.

§§ 151-169, and the LMRA. Third, Congress could easily have

created interpretive presumptions by statute had it cared to do so.

The text of the LMRA does not contain any statutory presumptions.

Fourth, though the courts sometimes create judicial

interpretive presumptions, there is no reason to craft judicial

default rules here. See Bidlack v. Wheelabrator Corp., 993 F.2d

603, 607 (7th Cir. 1993) (en banc). The Supreme Court has crafted

only one presumption under the LMRA: the presumption in favor of

arbitrability in labor contracts, which applies when a CBA contains

an arbitration clause. See Local 285, Serv. Employees Int'l Union

v. Nonotuck Res. Assocs. Inc., 64 F.3d 735, 738 (1st Cir. 1995).

19
As the Seventh Circuit has said: "We do not think that a
court should refuse to enforce a contract merely because the
parties have failed to use a prescribed formula." Bidlack v.
Wheelabrator Corp., 993 F.2d 603, 607 (7th Cir. 1993) (en banc).

-27-
As the Supreme Court stated in United Steelworkers of America v.

Warrior & Gulf Navigation Co., 363 U.S. 574 (1960), such a

presumption is required in order "to be consistent with

congressional policy in favor of settlement of disputes by the

parties through the machinery of arbitration." Id. at 582; see

also AT&T Techs., Inc. v. Commc'ns Workers of Am., 475 U.S. 643,

650 (1986). We see no similar congressional policy here.

Fifth, in the end, the question will usually be one of

the degree of clarity that benefits were or were not unalterably

vested, and if vested, under what conditions. There are

traditional rules of interpretation of labor agreements which have

proven adequate to answer those questions as to non-ERISA benefits,

and we do not see why those rules would not work when ERISA

benefits are at stake. Those are the rules we use.

B. Interpretation of the ERP Labor Agreements

Having determined that traditional principles of labor

contract interpretation apply to the dispute at issue in this

appeal, we turn to those principles to determine whether the ERP

agreements provided for vesting benefits that could not be changed

by the company.

An unambiguous contract must be enforced according to its

terms, under both the common law and labor law. See Grain Millers,

116 F.3d at 980 (holding in LMRA § 301 case that "[a]ll courts

agree that if a document unambiguously indicates whether retiree

-28-
medical benefits are vested, the unambiguous language should be

enforced"); see also Rosetto, 217 F.3d at 542; Yard-Man, 716 F.2d

at 1479. The question of whether a contract is ambiguous is

generally a question of law for the judge, and is subject to de

novo review. See Champion, 908 F.2d at 1256; see also Lohnes v.

Level 3 Commc'ns, Inc., 272 F.3d 49, 53 (1st Cir. 2001) (describing

this rule as a "bedrock" principle).

We look first to the language of the ERP agreements.

Plaintiffs argue that the language in the ERP agreements is

unambiguous in creating a vested entitlement to lifetime dental

benefits that could not be changed by the company. Defendants

argue the ERP agreements clearly express that the company retained

its ability to alter benefits. We disagree with both positions.

The language in the ERP agreements stating that at age 62

"the Company will pay the entire premium" does not establish that

the parties intended the company to be unconditionally obligated

for lifetime dental benefits. The language does not provide a

durational term to the retirement benefits. Rather, it defines the

level of benefits a retiree may receive at a certain age: the

company pays only ten percent of the premium for dental coverage

for retirees under 62 years of age, but when the retiree reaches

62, the company pays 100% of the premium. There is no language

regarding the duration of the contract.

-29-
 Since the ERP agreements do not unambiguously answer the

question of whether the company bound itself not to ever change the

dental benefits granted, we look to the pertinent rules of

interpretation. There are several sources. One is a normal rule

of contract interpretation, the others are rules about interpreting

labor agreements.

Under general principles of contract law, a contract that

does not explicitly incorporate another agreement may nonetheless

implicitly incorporate that agreement. For instance, Williston

states:

[W]hen the same parties execute two
instruments concerning the same subject
matter, they may, under some circumstances, be
regarded as one contract and construed
together whether made simultaneously or on
different days, the fact that they were made
or dated at different times being
insignificant if they are related to and were
part of the same transaction.
. . . .
Moreover, reference to an extraneous document
may be essential to the interpretation and
construction of a contract because, even
though the writings in question were neither
executed on the same day nor made by the same
parties, the later writing may so far pertain
to the same transaction as the earlier that
its meaning at the time and place that it was
made can be understood only by reference to
the earlier writing.

11 Lord, Williston on Contracts § 30:26 (4th ed.) (footnotes

omitted). Corbin similarly notes:

Internal references in one document to another
are often helpful in the processes of
interpretation and adjudication, but the

-30-
 absence of such a reference does not make a
document unusable in these processes or
inadmissible in evidence. Its connection and
relevancy can be established otherwise.

5 Corbin on Contracts § 24.21.

This principle of general contract law aligns with

substantive principles of interpretation of labor agreements,

particularly the Supreme Court's instruction that "[i]n order to

interpret [a labor] agreement it is necessary to consider the scope

of other related collective bargaining agreements, as well as the

practice, usage and customs pertaining to such agreements."

Transp.-Comm'cn Employees Union v. Union Pac. R.R., 385 U.S. 157,

161 (1966). Courts have relied on this principle, in a variety of

circumstances, to construe related labor agreements together, even

where there is no express incorporation of terms. See Sprague v.

Cent. States, Se. & Sw. Areas Pension Fund, 269 F.3d 811, 815-16

(7th Cir. 2001) (interpreting a CBA together with an earlier

agreement that had not expressly been incorporated into the CBA,

where the parties intended that the plan be considered with the CBA

and the CBA would not exist without the earlier agreement (citing

Transp.-Commc'n Employees Union, 385 U.S. at 161)); Cent. States,

Se. and Sw. Areas Pension Fund v. Kroger Co., 73 F.3d 727, 731 (7th

Cir. 1996) ("Every indication surrounding the execution of the CBA

points to the conclusion that the Union and Kroger intended the

Master Agreement and the Local Supplement to comprise one

agreement, and any consideration of the CBA must begin with the

-31-
recognition that it is one contract we are examining -- not two.");

Am. Fed. of Labor v. W. Union Tel. Co., 179 F.2d 535, 538 (6th Cir.

1950) (holding that a CBA had implicitly incorporated the specific

terms of a separate benefit and pension plan where the CBA stated

that the company would not "abandon . . . its existing Benefit and

Pension Plan."); see also Murphy v. Keystone Steel & Wire Co., 61

F.3d 560, 567 (7th Cir. 1995) (rejecting an argument, in an ERISA

case, that a welfare benefit plan should be read in isolation from

a CBA, where the CBA and plan were negotiated together, rested on

the same consideration, and the CBA expressly incorporated the plan

terms).

It is also important to look at the broader context of a

CBA because the "source of law is not confined to the express

provisions of the contract, as the industrial common law -- the

practices of the industry and the shop -- is equally a part of the

collective bargaining agreement although not expressed in it."

Warrior & Gulf Navigation Co., 363 U.S. at 581-82; Transp.-Comm'cn

Employees Union, 385 U.S. at 161. This rule is not simply a rule

about the power of arbitrators. The rule has been recognized and

used by courts, including the Supreme Court, as substantive law of

labor contract interpretation. See Consol. Rail Corp. v. Ry. Labor

Executives Ass'n, 491 U.S. 299, 311-12 (1989). In Consolidated

Rail Corp., the Court stated:

[I]t is well established that the parties'
"practice, usage and custom" is of

-32-
 significance in interpreting their agreement.
This Court has observed: "A collective
bargaining agreement is not an ordinary
contract for the purchase of goods and
services, nor is it governed by the same old
common-law concepts which control such private
contracts. . . .[I]t is a generalized code to
govern a myriad of cases which the draftsmen
cannot wholly anticipate . . . . The
collective agreement covers the whole
employment relationship. It calls into being
a new common law -- the common law of a
particular industry or of a particular plant."

Id. (citations omitted) (alteration and omissions in original)

(quoting Transp.-Comm'cn Employees Union, 385 U.S. at 160-61); see

also Sprague v. Cent. States, Se. & Sw. Areas Pension Fund, 269

F.3d at 815-16 (holding that when interpreting a CBA "a court must

consider . . . practices, usage and customs pertaining to [related]

agreements" (quoting Transp.-Comm'cn Employees Union, 385 U.S. at

160-61)); Maurer v. Joy Techs., Inc., 212 F.3d 907, 915-16 (6th

Cir. 2000) (same); Bidlack, 993 F.2d at 605 (reviewing prior CBAs

and prior custom and usage to interpret a later CBA); H.K. Porter

Co., 872 F.2d at 62; accord Cherry, 441 F.3d at 483 (relying on

"parties' practice" to find that "neither party understood the

benefits to be permanent or inalterable").

Whether related agreements are to be construed together

under the LMRA depends on the facts and circumstances of the

individual case. See 11 Lord, supra, § 30:26 ("To what extent the

various provisions in another connected document should be

interpreted as part of the writing in question depends on the facts

-33-
and circumstances of each case . . . ."). Here, there are a number

of factors that lead us to construe the ERP agreements together

with the underlying CBA and the plan documents. The same parties

-- the union and the company -- were involved in the formation of

the CBA and the ERP agreements. These parties negotiated the ERP

agreements against the background understandings they had under the

CBA and the plan documents, and there is no evidence that the

parties intended the ERP agreements to stand independently of the

CBA or the plan documents.

Second, the practice, usage, and custom of the parties

make the other CBAs and the plan documents20 relevant. Retiree

dental benefits had been provided for a number of years and

entitlement to dental benefits upon retirement was a subject

treated variously either under the plan documents alone, or under

both the CBA and the plan documents. It would move away from the

"practice, usage and custom" of the parties to now read the ERP

agreements as standing alone. Third, the terms of the ERP

agreements are summary: the agreements are only two pages, refer to

"dental insurance coverage" but do not refer to a particular plan,

and leave out many details which are only provided in the dental

20
The plaintiffs' claim here, it is important to note, is
limited to an LMRA § 301 challenge based solely on the 1997 and
1999 ERP agreements, not the amendment to the 1993 CBA. Plaintiffs
do not argue that in the amendment to the 1993 CBA the parties
intended that dental benefits would be vested. Indeed, the parties
agree that the 1993 amendment only changed eligibility
requirements, not the level of benefits.

-34-
plan documents, such as the level of reimbursement for various

dental health services. Fourth, all other documentary evidence

related to the ERPs, including that relied on by the plaintiffs,

states that the plan documents "will govern in all cases."

Thus, we look here to related agreements, the practices

in the company, and the custom and usage as to retiree dental

benefits. The company had long provided retirees -- both union and

non-union -- with post-retirement dental benefits. These benefits

were not originally provided for under a collectively bargained

agreement. Rather, during that time, the relevant terms of retiree

dental coverage were provided in the dental plan documents, not the

collective bargaining agreements. These dental plan documents, at

all times, reserved the right of the company to amend, modify, and

terminate plan coverage. Plaintiffs do not claim that, during this

time, the company had in fact been providing vested lifetime dental

benefits that could not be changed by the company.

In 1993, the union and the company agreed to amend the

CBA then in effect, to change only the threshold eligibility

requirements for retiree dental benefits. That 1993 CBA did

incorporate the dental plan documents. This change to eligibility

requirements locked in the date at which employees would be

eligible for retiree dental benefits, so that only employees who

met the age and length of service requirements as of January 1,

1993 would continue to be eligible for dental benefits (which they

-35-
would receive if they also met the "Rule of 75" at retirement).

This change reflects the parties' understanding that employees who,

by 1993, had served a certain number of years and were of a certain

age should continue to eligible for company's preexisting retiree

dental benefit program, while other employees would not get such

benefits.21

It was against this background that the union and the

company entered into the CBA governing the years 1996 to 2002.

Although that CBA (in effect when the plaintiffs retired) did not

itself expressly mention retiree dental benefits, the plaintiffs

acknowledged that such benefits continued into the relevant period

under the amendment to the 1993 collective bargaining agreement.

It is clear under that CBA that no employee, retired or current,

had lifetime dental benefits which could not be changed by the

company. This was clear at the time the ERP agreements were being

negotiated. The effect of the ERPs was to give the employees who

retired under them the same dental benefits the other employees

had. Plaintiffs argue that the ERP went beyond this position of

parity: that the ERP in fact put the ERP retirees in a better

position than all other employees and retirees of the company. As

we shall see, there is no language anywhere incorporating the

plaintiffs' interpretation.

21
All the individual plaintiffs here met the threshold
eligibility requirements as of January 1, 1993.

-36-
 If the intent of the bargain contained in the ERP

agreements was to remove the reservation of rights the company had

always retained and to advantage plaintiffs over all other

employees, one would expect the agreement, or some other relevant

document, to say so. As we discuss, the bargaining history shows

nothing of the sort.

The ERP agreements contain nothing which purported to

change the terms of dental benefits that had been offered to

company retirees since 1993 under the CBAs.22 Indeed, the

description of retiree dental benefits in the 1997 and 1999 ERP

agreements matches almost exactly the description of those benefits

in the 1993 CBA, which, in turn, reserved the company's right to

alter the benefits.23

We have considered the specific bargaining history of the

ERP agreements. The plaintiffs offer no evidence that the issue of

the reservation of rights came up at bargaining or that the union

22
This course of dealing casts considerable doubt on
plaintiffs' argument that the union would not have entered into
these agreements, and that the retirees would not have taken
advantage of the ERPs, without the promise of perpetual dental
benefits. It also makes clear, as we explain, that in interpreting
the terms of the agreement, consideration must be given to the
dental plan documents.
23
The plaintiffs note the reservation of rights language is
"subject to the provisions of any collective bargaining agreement."
They argue that the company cannot unilaterally "amend, modify, or
terminate" the dental plan, but must honor the retirees' bargained-
for rights in the ERP agreements. As we explain, under no
reasonable reading of the ERP agreements were the retiree dental
benefits under the ERPs vested and unchangeable.

-37-
and the company understood that the company was giving up the right

of termination it had always maintained for dental benefits offered

to retirees. The ERP agreements themselves do not say that

retirement dental benefits are not governed by the terms of the

plan documents, or that the benefits are not subject to the

reservation of rights. The provision of retiree dental benefits

free of the reservation of rights that the company had always

maintained on such benefits would have been an important concession

by the company.

In the end, the plaintiffs' argument depends not on

affirmative evidence of the parties' understanding but on negative

inferences they say can be drawn from a series of omissions by the

company to repeat at every instance that the company continued to

reserve its right to change dental benefits. From the bargaining

history, plaintiffs allege "union negotiators and members were not

told that these benefits could be changed by the Company, that they

were anything less than lifetime benefits, or that other plan

documents, such as summary plan descriptions, could modify or

terminate the benefits." This is disingenuous: at the time of the

negotiations it was clear that all dental benefits were subject to

a reservation. If the union wished to change the status quo, it

could have bargained to do so.24

24
Plaintiffs also negatively infer a guarantee of vested
lifetime benefits from the fact that the ERP agreements do not
themselves contain express references to the plan documents, which

-38-
 The plaintiffs also rely on the omission of a discussion

of the reservation in two documents, and on oral statements they

say company representatives made to them.25 The plaintiffs rely on

the individualized benefits summaries given to the retirees, which

state: "Your dental coverage will be for your life. Your spouse

and/or eligible dependants will be covered for 12 months after your

death."26 These representations, considered in full, do not create

a triable issue for the plaintiffs. Rather, the summaries

specifically refer to the dental plan documents, which contain the

reservation of rights language, and say these plan documents are

governing. This reinforces the company's consistent

interpretation. Nor are we able to conclude, in light of these

circumstances, that any oral representations to the individual

reserved to the company the right to amend, modify, or terminate
the plan. The argument has two flaws. The language does not
establish that plaintiffs are entitled to what they seek, as we
noted. And we have determined that the ERPs should be interpreted,
in accord with custom and usage and normal contract principles, in
light of the CBAs and plan documents.
25
The plaintiffs point to United Steelworkers of Am. v.
Textron, Inc., 836 F.2d 6 (1st Cir. 1987), as supporting their
position. It does not. That case involved review of a grant of a
preliminary injunction in favor of retired workers seeking
continuation of benefits, and a deferential standard of review.
Id. at 8.
26
Plaintiffs also point to the fact that the version of the
VSP program brochure distributed to non-union employees stated
"[t]he Company reserves the right to change or terminate coverage
for current and former employees at any time," while the version of
the program summary given to union employees, including the
plaintiffs, did not contain this particular disclaimer. Again, the
argument from omission to repeat what is stated elsewhere fails.

-39-
plaintiffs could have created a material issue of fact as to what

the company and union intended.

The plaintiffs rely on the Seventh Circuit decisions in

Bidlack and Rosetto, in which the court held that particular labor

agreements were ambiguous as to whether welfare benefits were

vested, making summary judgment inappropriate. Those cases do not

help the plaintiffs here. Both cases dealt with the very different

issue of whether parties to a CBA had agreed that retirement

benefits would survive past the expiration of that CBA. See

Rosetto, 217 F.3d at 541; Bidlack, 993 F.2d at 606. Here, the ERP

agreements have not expired; the question is whether those

agreements withdrew the company's long-standing right to alter the

dental plan at a time when, under both a contemporaneous CBA and

past custom and usage, it was perfectly clear that the company

retained such a reservation. Furthermore, the cases are factually

distinguishable. In Rosetto, the court relied on the fact that

while the plaintiffs' labor agreement did not contain a durational

clause, a similar labor agreement between the company and a

different union specifically limited retirement benefits to the

term of the agreement. Rosetto, 217 F.3d at 545-46. In addition,

the company had continued to provide the plaintiffs with the

disputed benefits well after the expiration of the agreement. Id.

at 546. Ours is the opposite situation: reference to related labor

agreements works against the plaintiffs because the reservation was

-40-
part of those agreements. Further, here the company has not

behaved in a manner that is contrary to its interpretation of the

ERP agreements.

Furthermore, in Bidlack there was bargaining history

supporting the plaintiffs: a company executive who had participated

in negotiations with the union stated that the CBAs "were intended

to provide retired employees with vested rights to health

benefits." 993 F.2d at 606. The bargaining history here, as

described above, does not help the plaintiffs. Finally, in Bidlack

there was no discussion of whether the company had reserved its

right to alter benefits in any of the documents; here we have such

a reservation of rights in the dental plan documents.

In fairness we should mention that the company's position

is that at the time of the ERPs, while it did reserve the right to

withdraw benefits, it also hoped to provide those who took the

program, as well as others, lifetime dental benefits, but found

later, given the economics, that it was unable to do so.

IV.

For the reasons stated above, we affirm the grant of

summary judgment. The parties shall bear their own costs.

-41-