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MURPHY v. KEYSTONE STEEL & WIRE CO.

May 2, 1994

WILLIAM R. MURPHY, W. DARREL MCCABE, RICHARD L. ADKINS, AND INDEPENDENT STEEL WORKERS ALLIANCE, PLAINTIFFS,
v.
KEYSTONE STEEL & WIRE COMPANY, A DIVISION OF KEYSTONE CONSOLIDATED INDUSTRIES, INC., A DELAWARE CORPORATION; AND KEYSTONE STEEL & WIRE COMPANY HEALTH CARE BENEFIT PLAN, DEFENDANTS.



The opinion of the court was delivered by: McDADE, District Judge.

  ORDER

Plaintiffs William R. Murphy, W. Darrel McCabe, and Richard L. Adkins (the "Retirees") are retired, former employees of Defendant Keystone Steel & Wire Company, a Division of Keystone Consolidated Industries, Inc. ("Keystone"). Plaintiff Independent Steel Workers Alliance ("Union") is and has been the collective bargaining agent for Keystone's active employees during and since the Retiree's employment at Keystone. Defendant Keystone Steel & Wire Company Health Care Benefit Plan ("the Plan") is a self-insured plan which provides health care benefits for certain of Keystone's retirees and their dependents. The Retirees and Union have brought suit against Keystone and the Plan for breach of contract under Section 301 of the Labor-Management Relations Act ("LMRA"), 29 U.S.C. § 185 and for clarification and enforcement of their rights to future health care benefits under Keystone's employee welfare benefit plan including injunctive and other relief under § 502(a)(1)(B) and (a)(3) of the Employee Retirement Income Security Act ("ERISN"), 29 U.S.C. § 1132(a)(1)(B) and (a)(3). This action was given class certification by District Court Chief Judge Michael M. Mihm on September 27, 1993, to include as Plaintiffs all former bargaining unit employees of Keystone who retired from Keystone prior to May 3, 1993, and who had not attained the age of 65 before July 1, 1993, a class consisting of approximately 900 retired workers (hereinafter the "Retirees" include the named Plaintiffs and the class they represent).

BACKGROUND FACTS

This case concerns the obligation of Keystone to provide health care benefits for the Retirees under a series of Collective Bargaining Agreements ("CBAs" or "CBA" when referring to a specific agreement) entered into between Keystone and the Union during the period from February 4, 1960,*fn1 to May 3, 1993.*fn2

The controversy stems from unilateral action taken by Keystone on February 24, 1993, when it announced prospective changes effective July 1, 1993, in its then-current health care benefit plan for those retirees under 65 years of age as of July 1, 1993, namely, the Retirees in this lawsuit. Essentially, this announced new plan provided for a larger annual deductible in varying amounts depending upon age and a larger co-payment percentage for retirees. The Amended Complaint alleges that Keystone was obligated to continue to provide the Retirees with the same health care benefits being provided active employees and other retirees (not included in the class) under the health care benefit plan established and maintained pursuant to the then-current CBA. The Plaintiffs brought this action on June 30, 1993, a day before the new health care benefit plan was to become effective.

The health care benefit plan in effect at the time of Keystone's announced changes was embraced by the CBA dated May 3, 1990 ("1990 CBA"), for a three-year term expiring May 3, 1993.*fn3 The "Insurance and Health Care" agreement referenced in the 1990 CBA was "Keystone Steel & Wire Company Welfare Company Benefit Plan for Bargaining Unit Employees" dated July 1, 1986 ("1986 Plan"). (Ziegele Affidavit, Exh. S). This is the health care benefit plan which was in effect at the time Keystone announced the prospective changes in the health care benefit plan for the Retirees to take effect July 1, 1993. It provided identical health care benefits for active employees and all retirees. Section IV covered hospital, medical, and surgical benefits. Under the terms of this plan, active employees had to contribute $15.00 per month for coverage, and in connection with major medical benefits, there was an annual deductible of $100 per individual and $150 per family, a co-payment requirement of 20%, and a lifetime maximum benefit amount of $50,000 per enrollee. There is no language in the plan requiring Retirees to contribute any money for coverage under the plan, nor is there language specifically applying the limitations on major medical benefits to Retirees. On February 1, 1993,*fn4 Keystone terminated*fn5 (effective June 30, 1993) the health care benefit coverage for the Retirees under this plan. (Supplemental Affidavit of Ziegele, para. 4(a)). On that same date, Keystone adopted a new plan for the Retirees, Keystone Steel & Wire Company Health Care Plan for Bargaining Unit Current Retirees ("Retirees' New Plan"), effective as of July 1, 1993. (Ziegele Supp. Affidavit, para. 4(b), Exh. B).

A new CBA dated May 3, 1993, with a term expiring on May 3, 1996, ("1993 CBA") was negotiated to replace the 1990 CBA. (Ziegele Affidavit, Exh. V). This is the current CBA and, like its predecessors, contains the same language in Article XXIII, Section 23.0 referencing certain agreements which are to remain in force during the term of the CBA, one of which is the "Insurance and Health Care" agreement.*fn6 According to Keystone, the "Insurance and Health Care" agreement referenced did not include the "Retirees' New Plan" but was meant to refer only to the health care plan covering active employees and certain retirees other than the Plaintiff Retirees. (Ziegele Supp. Affidavit, para. 12-15). The Plaintiffs do not dispute this assertion.*fn7 As far as the Court can tell, this would be the 1986 Plan previously mentioned.

The Retirees' New Plan differs from the 1986 Plan in several major respects. The dichotomy of "basic" and "major medical" coverage in the 1986 Plan is replaced by "comprehensive medical benefits" in the Retirees' New Plan. The deductible in the Retirees' New Plan is increased and varies depending upon the age of the retiree. The co-payment percentage is increased to 25%. The lifetime maximum benefit is increased to $750,000. (Ziegele Supp. Affidavit, Exh. B).

CLAIMS

Counts I and III are brought under § 301(a) of LMRA. In Count I, Plaintiffs allege that each of the CBAs negotiated over the years constituted a binding contract obligating Keystone to provide "certain medical, surgical, hospital, and other health care benefits to retired employees, their spouses, and eligible dependents," and to continue these health care benefits "throughout the lifetime of each retired employee and each surviving spouse of a retired employee" ("the Retirees"). (Amended Complaint, para. 18). By terminating the health care program established and maintained pursuant to each of the CBAs and unilaterally creating a new health care plan for the Retirees, which shifts a larger portion of the cost of health care benefits to the Retirees, Plaintiffs claim that Keystone has breached the CBAs. The theory of Count III appears to be that the various health care plans in effect over the years, pursuant to the various CBAs, acquired the mantle of a CBA, and they themselves constitute binding contracts between Keystone and the Union, enforceable under § 301(a) of LMRA. According to this theory, these health care plans were breached by Keystone when it separated the Retirees out of the 1986 Plan and created the Retirees' New Plan which shifted a larger portion of insurance benefit costs away from Keystone to the Retirees.

Count II is an ERISA action. The claim is that the CBAs and health care plans maintained pursuant thereto were "employee welfare benefit plans" within the meaning of ERISA. Based upon the same allegations underlying Counts I and III, Plaintiffs claim that they are entitled to lifetime health care benefits as negotiated between Keystone and the Union. They seek enforcement and clarification of their rights under the ERISA protected employee welfare benefit plans.

LEGAL STANDARDS

Before the Court are cross-motions for summary judgment on Counts II and III of the Amended Complaint. Although not briefed by either of the parties, the Court will also include Count I in its consideration of the cross-motions for summary judgment since the CBAs are an integral part of any analysis. Each of the parties argues that no genuine issues of material fact exist since the question is one of contract interpretation.

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there is no genuine issue of material fact.

As to materiality, the substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.

As to genuine issue, summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). As stated in Anderson, "at the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." When a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial. There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, or is no more than a scintilla, a summary judgment may be granted.

The Seventh Circuit Court of Appeals has recognized that summary judgment is particularly appropriate in cases involving the interpretation of contractual documents. Ryan v. Chromalloy American Corp., 877 F.2d 598 (7th Cir. 1989). In that context, the Ryan opinion stated:

  ". . . summary judgment should be entered only if
  the pertinent provisions of the contractual
  documents are unambiguous: it is the lack of
  ambiguity within the express terms of the
  contract that forecloses any genuine issues of
  material fact. Id. If a district court determines
  that the pertinent provisions of the contract are
  unambiguous, it need not consider extrinsic
  evidence. At that point, the district court should
  proceed to declare the meaning of those
  provisions."

Id. at 608.

Pursuant to the controlling legal standards, the threshold matters to resolve are ascertainment of the relevant contractual documents in connection with each claim and whether their pertinent provisions are ambiguous or not. If they are ambiguous, extrinsic evidence submitted by the parties may be considered in interpreting their meaning, and summary judgment would probably not be appropriate. Hickey v. A.E. Staley Mfg., 995 F.2d 1385 (7th Cir. 1993) (after a court rules that a contract is ambiguous, it may consider extrinsic evidence to resolve an ambiguity).

What are the relevant contractual documents between Keystone and the Union? The various CBAs, standing alone, clearly are not meant to be the complete and final expression of the parties' agreement with respect to Keystone's obligation to provide health care benefits to its employees and retirees. The health care plan document referenced in the CBAs must necessarily be included in order to have a complete and fully integrated contract since they are the documents which set forth and govern the provision of health care benefits.*fn8 Therefore, the relevant contract documents for purposes of Counts I and III are the CBAs and related health care plans maintained pursuant thereto.

A related task is to identify the specific CBA and health care plan controlling the issues involved in this case. One approach, apparently pled in the Amended Complaint, but neither argued nor briefed by the parties, would be to analyze for each member of the Retiree class the particular CBA and related health care plan in force at the time he or she retired, thereby requiring the Court to interpret all such contracted documents since 1960. The approach taken by the parties in their briefs and argument (which also has some presence in the Amended Complaint) assumes that the last CBA in force prior to the changes establishing the Retirees' New Plan, namely the 1990 CBA and related health care plan (the 1986 Plan), are the pertinent contractual documents which apply to all members of the Retirees' class. This latter approach has been accepted by the Court in deciding the issues in this case.

APPLICABLE LAW

The issues for determination have already been considered by the Seventh Circuit Court of Appeals, albeit in context of varying factual nuances, in a recent trilogy of cases. Ryan v. Chromalloy American Corporation, 877 F.2d 598 (7th Cir. 1989); Senn v. United Dominion Industries, Inc., 951 F.2d 806 (7th Cir. 1992); and Bidlack v. Wheelabrator Corporation, 993 F.2d 603 (7th Cir. 1992).

  ERISA provides a private right of action to any beneficiary
or participant to enforce the terms of either a pension or a
welfare benefit plan. See 29 U.S.C. § 1132(a)(1) and (3). The
plan in this case is a welfare benefit plan; however, unlike
pension plans, ". . . ERISA does not require the vesting of
health or other 'welfare' benefits (citations omitted), . . .
but equally it does not forbid their vesting by a written
contract, . . . which could be part of a collective bargaining
agreement." Bidlack v. Wheelabrator, 993 F.2d at 604.
Therefore, the efficacy of the Retirees' claim under ERISA in
Count II turns solely upon the terms of the written instruments
governing the 1986 Plan. As stated in Ryan:

   . . ERISA requires that '[e]very employee
  benefit plan . . . be established and maintained
  pursuant to a written instrument.'
  29 U.S.C. § 1102(a)(1). Through those instruments, the
  parties are free to subject such welfare benefits
  to vesting requirements not provided by ERISA, or
  they may reserve the power to terminate such plans.
  As the Sixth Circuit has stated in Hansen v. White
  Farm Equipment Co., 788 F.2d 1186 (6th Cir. 1986),
  'the parties may themselves set out by agreement or
  by private design, as set out in plan documents,
  whether retiree welfare benefits vest, or whether
  they may be terminated.' (citations omitted.)

Ryan v. Chromalloy, 877 F.2d at 603.

Ryan, Senn, and Bidlack provide controlling guidelines. Ryan v. Chromalloy teaches that: (1) summary judgment should be entered only if pertinent provisions of contractual documents are unambiguous, and it is the lack of ambiguity within the express terms of the contract that forecloses any genuine issue of material fact; (2) extrinsic evidence cannot create an ambiguity in otherwise clear documents, and if the pertinent provisions of contractual documents are unambiguous, the Court need not consider extrinsic evidence, but should at that point proceed to declare the meaning of those provisions; and (3) a document should be read as an integrated whole so that all of the provisions, if possible, will be given effect.

Senn v. United Dominion teaches that: (1) silence of the contractual documents concerning vestment of welfare benefits does not give rise to ambiguity warranting admission of extrinsic evidence but, rather, silence and explicit repudiation of vesting demonstrates that the parties did not intend vestment of lifetime right to benefits; and (2) the default rule in this circuit is that entitlements established by collective bargaining agreements do not survive the agreements' expiration or modification and, thus, it requires more than a statement in a bargaining agreement that welfare benefits "will continue" to create ambiguity about vesting, as the logical interpretation under the default rule is that benefits "will continue" for the duration of agreement.*fn9

Bidlack v. Wheelabrator teaches that the default rule is not an "irrebuttable presumption," and where the collective bargaining agreement is vague, rather than silent on the subject of vesting, resort to extrinsic evidence is proper. However, if a preponderance of the evidence does not show that the parties intended the benefits to vest, the presumption is that they did not.

ANALYSIS

Article XXIII, Section 23.0 of the 1990 CBA plainly and unambiguously states that the "Insurance and Health Care" agreement referenced therein "will remain in effect during the term of this agreement all as heretofore agreed upon and as revised." The plain meaning of this language is obvious: the parties were agreeing that during the term of the CBA, the health care plan would remain in effect. The use of the word "remain" implies a prior existence. The CBA says nothing about the status of the plan after the CBA expired. Applying the default rule in this circuit (as stated in Senn), entitlement to health care benefits pursuant to the CBA did not survive the expiration of the term of the 1990 CBA which was May 30, 1993. Therefore, the 1986 Plan was no longer binding on Keystone after that date. The other language in Section 23.0 that "the language of such agreements is separate from and not a part of this agreement" arguably suggests that the 1986 plan preserved its separate identity, but did this language give the 1986 Plan an independent legal existence, binding upon Keystone, without regard to the 1990 CBA?

The 1986 Plan does not reference or mention any CBA. The 1986 Plan provides that a retiree's coverage terminates upon the date the Plan is terminated or amended to terminate the retiree's coverage. This language clearly and unambiguously indicates that the Plan can be terminated or amended to terminate a retiree's coverage, but the Plan is silent as to how such action is to be done, and who has the right to act in this regard. If the Plan itself can be terminated or amended to eliminate a retiree's coverage, then it logically follows that the provision of health care benefits for retirees cannot be a lifetime proposition. This conclusion is compelled by the plain reading of the language of the Plan.

In opposition, the Retirees point to other provisions of the 1986 Plan which, they argue, strongly suggest lifetime benefit language. They emphasize Section IV dealing with the effective dates of retirees' coverage and language that the coverage of a retiree continues until death.

SECTION IV

HOSPITAL, MEDICAL, AND SURGICAL BENEFITS

Medical benefits set out in this booklet are available to Company Employees who are employed by Keystone on or before May 2, 1984.

A. GENERAL INFORMATION

EFFECTIVE — ACTIVE EMPLOYEES

Active Employees

Basic and Major Medical Expenses coverage is effective on the first day after an Employee has worked 520 hours of full-time employment, provided he is working on that date and has applied for the coverage and agreed to make the required contribution, if any. If not, coverage is effective on the day he returns to active work.

Dependents of Active Employees

When a Retiree who retired after May 1, 1972, with thirty (30) years or more of accumulated services dies, his spouse shall be eligible to receive continued Basic and Major Medical Benefits (for which the spouse is eligible as though the Retiree had survived) at no cost. Coverage shall cease when the spouse remarries.

When a Retiree who retired after August 1, 1975, with twenty (20) years or more of accumulated service dies, his spouse shall be eligible to receive continued Basic and Major Medical Benefits (for which the spouse is eligible as though the Retiree had survived) at no cost. Coverage shall cease when the spouse remarries.

EFFECTIVE DATE — RETIREES

Retired Employees

Coverage is effective on the date an Employee retires under the Company's retirement plan. Provided, however, that an Employee who leaves the Company with a deferred vested pension and later retires under the Company's retirement plan shall not be eligible for Basic and Major Medical Benefits.

Dependents of Retired Employees

Coverage for Dependents of retired Employees become effective on the date the Employee's coverage is effective.

However, the 1986 Plan must be read as an integrated whole so that all of the provisions, if possible, will be given effect. See Ryan v. Chromalloy, 877 F.2d at 604. In doing so, the distinction must be kept in mind between a non-terminable plan, which may or may not provide lifetime health care benefits to retirees and their surviving spouses and eligible dependents, and a terminable plan which may or may not provide such lifetime health care benefits. Due to the fact that the 1986 Plan has a termination clause, it falls into the latter category. In that context, the question remains whether the language proffered by the Retirees indicates that (while the 1986 Plan is in effect) the benefits provided are lifetime in duration. In the Court's judgment, the proffered language is unambiguous: a retiree is provided lifetime coverage and coverage continues after his death for his spouse and eligible dependents so long as the 1986 Plan has not been terminated or amended prior to the occurrence of his death. Because the 1986 Plan is terminable, the Retirees are not entitled to have health care benefits continue after the proper termination or amendment of the 1986 Plan.

Having decided that the Retirees' benefits under the health insurance plan are not guaranteed for life, in the sense that they survive the termination of the 1986 Plan, (and before getting to the question of whether the 1986 Plan was properly terminated or amended for the Retirees), I am left with the suspicion that this issue of lifetime benefits is not and was not the crux of Plaintiffs' real complaint. In fact, Plaintiffs' counsel admitted during argument that their legal theory allowed them to accept the benefits of any favorable changes in the health care plan over the years since 1960 from collective bargaining but not unfavorable changes, a position made easier by the fact that he could not recall any unfavorable changes prior to the action by Keystone giving rise to the controversy at issue. It appears to the Court that this candor on behalf of Plaintiffs' counsel reveals their true complaint. The new Retirees' Plan treated them differently from active employees and other retirees over 65 years old to their financial detriment. As previously, mentioned, the 1986 Plan provided the same health care benefits for active employees and all retirees.*fn10

Whether Keystone's unilateral acts constituted a breach of the contract documents requires the Court to identify who has the right to terminate or amend the 1986 Plan. If Keystone had the right, the ball game is over for the Retirees. The 1986 Plan document is silent on this issue, or in other words, does not expressly say. Keystone argues that the aforesaid 1986 Plan's provision for termination implicitly allows them to terminate or amend the Plan unilaterally. This is consistent with their theory that the plans are similar to a revocable trust wherein the settlor reserves the right to terminate or amend the trust. In counterpoint, Plaintiffs point to other Plan provisions dealing with the effective dates of retiree coverage and language that the coverage of a retiree continues until death as suggesting that the benefits are lifetime and therefore cannot be terminated unilaterally by Keystone. The Court fails to see the logic of this reasoning on the issue of right to terminate or amend.

The strongest case Plaintiffs make for a requirement of bilateral action is the argument that the various plans since 1966 have all been the product of an agreement between Keystone and the Union negotiated by the Joint Insurance Committee which was created by the 1966 CBA. Therefore, argues the Union, since the plans are agreements, they cannot be terminated or amended without the consent of the Union. In support of this theory, Plaintiffs point to the language in Article XXIII of the current CBA dated May 3, 1993 ("1993 CBA"), that the "company agrees that the . . . [insurance and health care] agreement (s) will remain in effect during the term of this agreement all as heretofore agreed upon and as revised." (emphasis added). This underlined language first appeared in the CBA dated February 4, 1966,*fn11 and the plain meaning suggests that the parties considered that the insurance and health care plan was an agreement and was the product of previous agreements between Keystone and the Union.

Also in the 1966 CBA a Joint Insurance Committee ("JIC") was first created which Plaintiffs claim was responsible for negotiating the health insurance plan with Keystone in succeeding years. Although there is no specific language in the 1966 CBA explicitly authorizing the JIC to "negotiate" the health care plan, the affidavits of John W. Gay and Art Hannon submitted in support of Plaintiffs' Motions for Summary Judgment state that this was one of the actual functions of the JIC. This is disputed by Keystone, but Keystone has failed to submit counter affidavits; instead Keystone has moved to strike the affidavits as irrelevant. That motion is hereby denied. The language creating the JIC follows:

  23.214 IT IS HEREBY AGREED that a Joint Insurance
  Committee will be established as of the date of the
  signing of this Agreement in the following form and
  for the following purposes:
    23.2141 The Joint Insurance Committee shall be
    composed of three members from Management and
    three members from the Union, said members to
    serve five-year terms and to have the
    qualification of having knowledge and
    understanding of insurance benefit programs.
    23.2142 The Joint Insurance Committee will meet
    in regular scheduled meetings and at such time
    and place as is agreed among its members, but in
    no event will the meetings be less often than
    semi-annually.
    23.2143 The basic purposes and responsibilities
    of the Joint Insurance Committee will be
      23.21431 to consider ways to help Keystone
    employees better understand the insurance
    benefits available to them under the Keystone
    Insurance Plan; the rules and regulations
    enumerated thereunder; the methods of claim
    filing; and where insurance carriers are
    providing benefits, the rules and restrictions of
    the insurance contracts thereunder.
      23.21432 to review and make an earnest effort
    to resolve the problems arising under the
    administration of the Keystone Insurance Plan
    which lead to excessive cost factors to the
    Company and/or to complaints from the employees
    relative to the services rendered by the
    insurance carriers.
      23.21433 to review and make an earnest effort
    to resolve the specific claim problems relating
    to the individual status of claims when the
    following procedure has been first followed:
      23.214331 All claim problems and the individual
    status of claims must first be referred to the
    Company's Personnel Department who will
    investigate and attempt to resolve said problem.
      23.214332 If no solution is arrived at by the
    Personnel Department and the employee involved, a
    complaint embodying the facts of the case in
    writing can be referred to the Joint Insurance
    Committee at least 48 hours prior to a scheduled
    meeting of the Committee who will then review
    said problem.
      23.21434 Insurance claim problems, except life
    insurance claims, that are not resolved by the
    Joint Insurance Committee may be filed as a
    written grievance directly into Step III of the
    grievance procedure and into arbitration if
    required as defined in Article XVI.

As proof of the involvement of the JIC in negotiating the health care benefit plans with Keystone, the Union points to a language change in the CBA dated May 3, 1966, when referencing the health insurance plan. The word "the" was substituted for the possessive pronoun "its" in recognition that the health insurance plan had been transformed from Keystone's unilateral largess into a negotiated agreement.

The pertinent relevant language in the May 3, 1966, CBA and the preceding ones dated February 4, 1960, and February 4, 1963, follow:

February 4, 1960, Agreement (Ziegele Affidavit, Exh. A).

Article XVI at page 67 provided:

 PROFIT SHARING, RETIREMENT, INSURANCE AND SECURITY
      BENEFIT PLANS
    The Company agrees to continue its present Profit
  Sharing Plan, its Pension and Retirement Plan, its
  Group Insurance Plan, and its present Security
  Benefit Plan during the term of this Agreement.
  (emphasis added).

February 4, 1963, Agreement (Ziegele Affidavit, Exh. B).

Article XXIII, Section 23.0 at page 78 provided:

PROFIT SHARING, RETIREMENT, INSURANCE,
      AND SECURITY BENEFIT PLANS
  23.0 The Company agrees to continue its present
  Profit Sharing Plan, its revised Pension Plan, its
  Group Insurance Plan, and its Security Benefit Plan
  during the term of this Agreement. (emphasis
  added).

May 3, 1966, Agreement (Ziegele Affidavit, Exh. C).

Article XXIII, Section 23.0 at page 77 provided:

  PROFIT SHARING, RETIREMENT, INSURANCE, SECURITY
    BENEFIT PLANS AND ...

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