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Supreme Court of the United States No. 13-1010 IN THE Supreme Court of the United States M&G POLYMERS USA, LLC, ET AL., Petitioners, V. HOBERT FREEL TACKETT, ET AL., Respondents. ON A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT BRIEF OF AMICUS CURIAE WHIRLPOOL CORPORATION IN SUPPORT OF PETITIONERS EMILY MAKI-RUSK DOUGLAS A. DARCH Senior Counsel Counsel of Record WHIRLPOOL CORPORATION ALEXIS S. HAWLEY 2000 N. M-63, MD 3604 BAKER & MCKENZIE LLP Benton Harbor, Michigan 49022 300 East Randolph Street, (269) 923-3919 Suite 5000 Chicago, Illinois 60610 (312) 861-8000 douglas.darch @bakermckenzie.com Attorneys for Amicus Whirlpool Corporation 254107 A (800) 274-3321 • (800) 359-6859 i TABLE OF CONTENTS Page TABLE OF CONTENTS. i TABLE OF CITED AUTHORITIES . iv STATEMENT OF INTEREST OF AMICUS CURIAE . .1 SUMMARY OF ARGUMENT . .3 ARGUMENT. .5 I. A C L E A R , E X P R E S S , A N D UNMISTAKABLE WAIVER STANDARD IS REQUIRED BY NATIONAL LABOR POLICY . .5 A. ERISA Confers A Federal, Statutory Right To Amend Or Terminate Welfare Benefi t Plans . .5 B. Waiver Of A Statutory Right Through Collective Bargaining Must Be Clear And Unmistakable . .9 C. Yard-Man Is Inconsistent With ERISA, National Labor Policy And The Clear & Unmistakable Waiver Standard . .12 1. Yard-Man Is Incompatible With ERISA . .13 ii Table of Contents Page 2. Yard-Man Conflicts With National Labor Policy . .16 3. Yard-Man Confl icts With Section 7’s Neutrality Requirement . .17 D. U n i f o r m N a t i o n a l L a b o r Policy Precludes Outcomes Dictated By Geography . .18 II. A “REASONABLE SUGGESTION” OR “REASONABLY SUSCEPTIBLE” STANDARD IS NOT CONSISTENT WITH NATIONAL LABOR POLICY . .23 A. The “Reasonable Suggestion” Standard Allows For Further Variation & Disarray Among The Courts of Appeal . .24 1. The Sixth Circuit’s Pension Tying Rule Is Not Indicative Of Vesting . .24 2. The Sixth Circuit’s “Specific v. General” Durational Clause Rule Should Be Rejected . .26 3. Various Sixth Circuit Panels Have Inconsistently Applied Yard-Man . .28 iii Table of Contents Page B. The Clear & Express Standard Lends Clarity To Vesting Law & Should Be Adopted. .30 C. Analysis of Extrinsic Evidence Should Be Subject To A Clear, Express, & Unmistakable Standard . .30 CONCLUSION . .34 iv TABLE OF CITED AUTHORITIES Page Cases Abbruscato v. Empire Blue Cross & Blue Shield, 274 F.3d 90 (2d Cir. 2001) . .31 Aleman v. Chugach Support Servs., Inc., 485 F.3d 206 (4th Cir. 2007) . .11 Anderson v. Alpha Portland Indus., 836 F.2d 1512 (8th Cir. 1988). .27 Ashcroft v. Iqbal, 556 U.S. 662 (2009). .12 AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643 (1986). .10 Baldwin v. Motor Components, 155 F. App’x 16 (2d Cir. 2005) . .27 Barnhart v. Sigmon Coal Co., 534 U.S. 438 (2002) . .5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) . .12 Bender v. Newell Window Furnishings, Inc., 681 F.3d 253 (6th Cir. 2012). 32, 33 Bidlack v. Wheelabrator Corp., 993 F.2d 603 (7th Cir. 1993) . .15 v Cited Authorities Page Bland v. Fiatallis N. Am., Inc., 401 F.3d 779 (7th Cir. 2005) . .31 Cent. Penn. Teamsters Pension Fund v. McCormick Dray Line, Inc., 85 F.3d 1098 (3d Cir. 1996) . .11 Cole v. ArvinMeritor, Inc., 549 F.3d 1064 (6th Cir. 2008) . .33 Curtiss-Wright v. Schoonejongen, 514 U.S. 73 (1995) . passim Deboard v. Sunshine Mining & Ref Co., 208 F.3d 1228 (10th Cir. 2000) . .7 Dewhurst v. Century Aluminum Co., 2009 U.S. Dist. LEXIS 120014 (S.D. Ohio Dec. 23, 2009) . .20 Diehl v. Twin Disc, Inc., 102 F.3d 301 (7th Cir. 1996). .24, 31 Dolge v. Dolge, 75 N.Y. Supp. 386 (App. Div. 1902). .13 East Tenn. Baptist Hosp. v. NLRB, 6 F.3d 1139 (6th Cir. 1992). .11 Fort Halifax Packing Co. v. Coyne, 482 U.S. 1 (1987). .21 vi Cited Authorities Page Fraser v. Magic Chef-Food Giant Markets, 324 F.2d 853 (6th Cir. 1963) . .20 Gable v. Sweetheart Cup Co., 35 F.3d 851 (4th Cir. 1994). .6 Ginter v. Whirlpool Corp., 2009 U.S. Dist. LEXIS 56579 (W.D. Mich. July 1, 2009) . .21 Golden v. Kelsey-Hayes Co., 73 F.3d 648 (6th Cir. 1996) . .16, 25 Heheman v. E.W. Scripps Co., 661 F.2d 1115 (6th Cir. 1981) . .28 In re Lucent Death Benefi ts ERISA Litig., 541 F.3d 250 (3d Cir. 2008) . .5 In re Unisys Corp. Retiree Medical Benefi t “ERISA” Litig., 58 F.3d 896 (3d Cir. 1995) . .32 Int’l Bhd. of Teamsters, Local 1199 v. Pepsi-Cola Gen. Bottlers, Inc., 958 F.3d 1331 (6th Cir. 1992). .28 Int’l Chem. Workers v. PPG Indus., 236 F. App’x 789 (3d Cir. 2012) . .27 vii Cited Authorities Page Inter-Modal Rail Employees Ass’n v. Atchison, Topeka & Santa Fe Ry., 520 U.S. 510 (1997) . .3, 6, 8 John Morrell & Co. v. UFCW, 37 F.3d 1302 (8th Cir. 1994). .14, 25 Joyce v. Curtiss-Wright Corp., 171 F.3d 130 (2d Cir. 1999) . passim Leiter Minerals, Inc. v. United States, 352 U.S. 220 (1957). .10 Lewis v. Allegheny Ludlum Corp., 2011 U.S. Dist. LEXIS 148584 (N.D. Ohio Dec. 21, 2011) . .20 Lewis v. Benedict Coal Corp., 361 U.S. 459 (1959) . .10 Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399 (1988). .10, 16, 23 Litton Fin. Printing Div. v. NLRB, 501 U.S. 190 (1991) . .11, 20, 27 Livadas v. Bradshaw, 512 U.S. 107 (1994) . 9, 17, 18 Local 65-B, Graphic Commc’ns Conference v. NLRB, 572 F.2d 342 (7th Cir. 2009) . .11 viii Cited Authorities Page Local Union 1395 v. NLRB, 797 F.3d 1027 (D.C. Cir. 1986). .11 Local Union 36, IBEW v. NLRB, 706 F.3d 73 (2d Cir. 2013) . .31 Loskill v. Barnett Banks, Inc., 289 F.3d 734 (11th Cir. 2002). .6 Marine Eng’gs Benefi cial Ass’n v. GFC Crane Consultants, Inc., 331 F.3d 1287 (11th Cir. 2003). .11 Maurer v. Joy Techs., Inc., 212 F.3d 907 (6th Cir. 2000) . 18, 26, 28, 29 Maytag Corp. v. UAW, 687 F.3d 1076 (8th Cir. 2012). passim McCoy v. Meridian Auto. Sys., Inc., 390 F.3d 417 (6th Cir. 2004). .33 McNevin v. Solvay Process Co., 52 N.Y. Supp. 98 (App. Div. 1898) . .13 Mello v. Sara Lee Corp., 431 F.3d 440 (5th Cir. 2005) . .32 Metropolitan Edison Co. v. NLRB, 460 U.S. 693 (1983). passim ix Cited Authorities Page Moore v. Metro. Life Ins. Co., 856 F.2d 488 (2d Cir. 1988) . .8 NLRB v. Savair Mfg. Co., 414 U.S. 270 (1973) . .17 Noe v. PolyOne Corp., 520 F.3d 548 (6th Cir. 2008) . 26, 29 Oddie v. Ross Gear & Tool Co., 305 F.2d 143 (6th Cir. 1962). .20 OCAW, Local 1-547 v. NLRB, 842 F.2d 1141 (9th Cir. 1988). .31 Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) . .10 Reese v. CNH Am., LLC, 574 F.3d 315 (6th Cir. 2009). .18, 29 Rosetto v. Pabst Brewing Co., 217 F.3d 539 (7th Cir. 2000). .23 Ross v. Rail Car Am. Group Disability Income Plan, 285 F.3d 735 (8th Cir. 2002) . .6 Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062 (7th Cir. 1997) . .3 x Cited Authorities Page Senn v. United Dominion Indus., 951 F.2d 806 (7th Cir. 1992). .19, 27 Shaw v. Delta Airlines, Inc., 463 U.S. 85 (1983). 21 Sigman v. Rudolph Wurlitzer Co., 11 N.E.2d 878 (Ct. App. Ohio 1937) . .13 Sloan v. BorgWarner, Inc., 2014 U.S. Dist. LEXIS 24856 (W.D. Mich. Feb. 27, 2014). .22 Sprague v. Gen. Motors Corp., 133 F.3d 388 (6th Cir. 1998). .18 Texas & New Orleans Ry. Co. v. Jones, 103 S.W.2d 1043 (Tex. Ct. Civ. App. 1937). .13 Timken Roller Bearing Co. v. NLRB, 325 F.2d 746 (6th Cir. 1963). .7, 30 UAW v. BVR Liquidating, Inc., 190 F.3d 768 (6th Cir. 1999). .28 UAW v. Skinner Engine Co., 188 F.3d 130 (3d Cir. 1999) . passim UAW v. Yard-Man, Inc., 716 F.2d 1476 (6th Cir. 1984) . passim xi Cited Authorities Page United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indus. & Service Workers Int’l Union, AFL-CIO-CLC v. Kelsey Hayes Co., 750 F.3d 546 (6th Cir. 2014). .25-26 Upholsterers’ International Union v. American Pad & Textile Co., 372 F.2d 427 (6th Cir. 1967). .15 Vallone v. CNA Fin. Corp., 375 F.3d 623 (7th Cir. 2004) . .6 Wise v. El Paso Natural Gas Co., 986 F.2d 929 (5th Cir. 1993) . .6 Witmer v. Acument Global Techs., Inc., 694 F.3d 774 (6th Cir. 2012). .19, 29 Wright v. Universal Maritime Service Corp., 525 U.S. 70 (1998) . .3, 10, 11 Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d 571 (6th Cir. 2006) . .19, 33 Zino v. Whirlpool Corp., 2013 U.S. Dist. LEXIS 121750 (N.D. Ohio, Aug. 27, 2013) . passim xii Cited Authorities Page Statutes 29 U.S.C. § 157 . .17 29 U.S.C. § 1051(1) . .5, 13 29 U.S.C. § 1102(a)(1). .3, 32 Employee Retirement Income Security Act, 29 U.S.C. § 1001 et seq. .3 Other Authorities BLACK’S LAW DICTIONARY (8th ed. 2004) . .5 1 STATEMENT OF INTEREST OF AMICUS CURIAE This Amicus Brief is submitted with the consent of the parties in support of Petitioner M&G Polymers USA, LLC.1 Amicus Whirlpool Corporation (“Whirlpool”) seeks reversal of the Sixth Circuit’s decision below.
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