                       RECOMMENDED FOR FULL-TEXT PUBLICATION
                            Pursuant to Sixth Circuit Rule 206
                                    File Name: 11a0011p.06

                UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                  _________________


                                               X
                                                -
 JAMES R. PRICE,
                                                -
                               Plaintiff–Appellee,
                                                -
                                                -
                                                    Nos. 09-3897/4204
          v.
                                                ,
                                                 >
                                                -
                                                -
 BOARD OF TRUSTEES OF THE INDIANA
                                                -
 LABORER’S PENSION FUND; INDIANA
                                                -
 LABORER’S PENSION FUND,
                    Defendants–Appellants. -
                                               N
                 Appeal from the United States District Court
                for the Southern District of Ohio at Columbus.
             No. 07-00933—Algenon L. Marbley, District Judge.
                                  Argued: August 6, 2010
                          Decided and Filed: January 12, 2011
   Before: SUTTON and McKEAGUE, Circuit Judges; JONKER, District Judge.*

                                    _________________

                                         COUNSEL
ARGUED: R. Gary Winters, McCASLIN, IMBUS & McCASLIN, Cincinnati, Ohio,
for Appellants. Tony C. Merry, LAW OFFICES OF TONY C. MERRY, LLC,
Columbus, Ohio, for Appellee. ON BRIEF: R. Gary Winters, McCASLIN, IMBUS
& McCASLIN, Cincinnati, Ohio, for Appellants. Tony C. Merry, LAW OFFICES OF
TONY C. MERRY, LLC, Columbus, Ohio, for Appellee.
       McKEAGUE, J., delivered the opinion of the court, in which SUTTON, J.,
joined. JONKER, D. J. (pp. 15–19), delivered a separate concurring opinion.




        *
        The Honorable Robert J. Jonker, United States District Judge for the Western District of
Michigan, sitting by designation.


                                               1
Nos. 09-3897/4204            Price v. Bd. of Trustees of the Ind. Laborer’s           Page 2
                             Pension Fund, et al.


                                   _________________

                                         OPINION
                                   _________________

        McKEAGUE, Circuit Judge. This appeal arises at the intersection of numerous
areas of complex federal law. We are called upon to sift through this complexity in the
hopes of adding clarity. For many years prior to this appeal, James Price received
occupational disability benefit payments under an employee benefit plan established and
maintained in accordance with the Employee Retirement Income Security Act of 1974
(“ERISA”). Price’s benefits were discontinued after the trustees amended the plan to
limit the payment of occupational disability benefits to a period of two years. He then
filed suit in federal district court, challenging the denial of his benefits and alleging that
the plan amendment violated ERISA because his occupational disability benefits had
vested as a matter of law. The district court determined that Price’s occupational
disability benefits did indeed vest under this court’s Yard-Man line of cases and,
accordingly, found that the amendment as applied to Price violated ERISA. The pension
plan now appeals this determination, arguing that the benefits were not vested. After
considering all of the relevant bodies of law, we conclude that the district court failed
to apply the appropriate standard of review when analyzing Price’s claim. Accordingly,
we VACATE the district court’s opinion and order and REMAND for further
proceedings consistent with this opinion.

                                             I.

        The facts in this case are undisputed. The Indiana State District Counsel of
Laborers and Hod Carriers Pension Fund (the “Fund”) is a multi-employer employee
benefit pension plan established and maintained in accordance with ERISA. As required
by ERISA, the Fund has a written pension plan document (the “Plan”), which sets forth
the terms of the benefits provided by the Fund. The Plan indicates that Fund participants
must be union employees, working under various collective bargaining agreements. In
addition, the Plan also provides that the Fund will be administered by a Board of
Nos. 09-3897/4204           Price v. Bd. of Trustees of the Ind. Laborer’s             Page 3
                            Pension Fund, et al.


Trustees (the “Board”). The Board in turn possesses authority to make benefit
determinations, interpret the Plan, and amend the Plan.           In granting the Board
amendment power, Section 15.1 of the Plan specifically states:

       Any amendment to the Plan may be made retroactively by the majority
       action of the Board of Trustees present and voting in order to bring the
       Plan in compliance with the Act and any subsequent amendments thereto.
       It is the desire of the Board of Trustees to maintain the Plan as a qualified
       Plan and Trust under Code sections 401(a) and 501(a).
       The Trustees who are present and voting may amend the Plan by
       majority action. However, no amendment shall be made which results
       in reduced benefits for any Participant whose rights have already become
       vested under the provisions of the Plan on the date the amendment is
       made, except upon the advice and counsel of an enrolled actuary.
       James Price first began receiving disability benefits under the Plan in 1990, after
a series of work-related injuries left him unable to work. Price’s benefits were initially
approved under the Plan’s “Total and Permanent Disability Benefit” category. In 2001,
the Fund notified Price that he no longer qualified for benefits under this category, but
advised him that he could continue receiving benefits under Article 7A’s provisions for
“Occupational Disability Benefit.” At the time Price began receiving Occupational
Disability Benefits, payment of those benefits was limited according to terms set forth
in Section 7A.5, which stated that “[t]he Occupational Disability Benefit shall be
payable only during continued Occupational Disability and until Early Retirement Age
under section 2.1(n).” In 2004, the Board exercised its amendment authority under Plan
Section 15.1 and amended Section 7.A5 (the “Amendment”) to state the following:

       [T]he Occupational Disability Benefit shall be payable only during a
       Participant’s continued Occupational Disability and—
                *              *               *
       (b) effective for Occupational Disability Benefits commencing prior to
       January 1, 2005, for a period not to exceed December 31, 2006, or, if
       earlier, the Participant’s attainment of Early Retirement Age . . . .

Because Price began receiving Occupational Disability Benefits prior to January 1, 2005,
his benefits were discontinued after December 31, 2006, according to the Amendment.
Nos. 09-3897/4204           Price v. Bd. of Trustees of the Ind. Laborer’s          Page 4
                            Pension Fund, et al.


       Price appealed the discontinuation of his Occupational Disability Benefits to the
Board, arguing that the Amendment as applied to him violated ERISA. The Board
denied Price’s appeal and stated in a written letter to Price’s attorney that Occupational
Disability Benefits could be amended under the terms of the Plan. Price then filed suit
in federal district court under 29 U.S.C. § 1132(a)(1)(B). His complaint alleged that the
Amendment violated ERISA because it deprived him of a benefit that had vested as a
matter of law.

       After a short period of discovery, the parties cross-filed for summary judgment.
The district court granted judgment in favor of Price under this court’s precedent in Int’l
Union, United Auto., Aerospace, & Agric. Implement Workers of Am. v. Yard-Man, Inc.,
716 F.2d 1476, 1482 (6th Cir. 1983). Price v. Bd. of Trustees of the Ind. Laborer’s
Pension Fund, et al., 2:07-cv-00933 at 7 (S.D. Ohio Mar. 24, 2009). According to the
lower court, Price’s Occupational Disability Benefits vested under Yard-Man at the time
he began receiving the benefits because the Plan promised benefits “until Early
Retirement Age.” Id. at 8. The district court read this provision as an indication that the
parties intended the benefits to vest. Id. In separate orders, the lower court ordered the
Fund to reinstate Price’s benefits and pay Price’s attorney’s fees. The Board and the
Fund bring this appeal, challenging the district court’s determination that Price’s
Occupational Disability Benefits vested and its award of attorney’s fees in favor of Price.

                                            II.

       We review a district court’s grant of summary judgment de novo. Noe v.
PolyOne Corp., 520 F.3d 548, 551 (6th Cir. 2008). “[S]ummary judgment is appropriate
‘if the pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled to
judgment as a matter of law.’” Schreiber v. Philips Display Components Co., 580 F.3d
355, 363 (6th Cir. 2009) (quoting Fed. R. Civ. P. 56).
Nos. 09-3897/4204            Price v. Bd. of Trustees of the Ind. Laborer’s           Page 5
                             Pension Fund, et al.


                                            III.

        We begin by noting that disability benefits are a welfare-type benefit under
ERISA, and as such, ERISA’s statutory vesting requirements do not apply. See 29
U.S.C. § 1002(1); Robinson v. Sheet Metal Workers’ Nat’l Pension Fund, Plan A, 515
F.3d 93, 98 (2d Cir. 2008).        When a benefit is exempt from ERISA’s vesting
requirements, no barrier exists to the modification or discontinuation of the benefit.
Curtiss-Wright Corp. v. Schoonejongen, 514 U.S. 73, 78 (1995). While ERISA does not
require vesting, the parties may nevertheless provide for vesting of welfare benefits
through agreement. Schreiber, 580 F.3d at 363. If the parties intended for the benefits
to vest and this agreement is breached, an ERISA violation occurs. Id. Neither party in
this case disputes that there is no express agreement providing for vesting of Price’s
Occupational Disability Benefits. Our inquiry does not end here, however, because
while Price’s benefits may not have vested under any express agreement, this court has
long recognized that under certain circumstances an intent to vest can be inferred from
specific language in the parties’ agreements. See, e.g., Yard-Man, 716 F.2d at 1482.
When these circumstances are present such that the inference exists, the benefit vests in
favor of the recipient. Accordingly, a unilateral decrease in these vested benefits would
result in an ERISA violation. The question for this case then becomes whether the
inference is present here.

        To answer this question properly, we trace Sixth Circuit case law creating the
inference that the parties intended for benefits to vest. The inference first appears in this
court’s seminal decision in Yard-Man; indeed, the inference has been renamed in many
of our cases simply as the “Yard-Man inference.” In creating the Yard-Man inference,
this court addressed the specific question of “whether retiree insurance benefits continue
beyond the expiration of the collective bargaining agreement [based] upon the intent of
the parties.” Yard-Man, 716 F.2d at 1479. To answer this question, we applied
traditional rules of contract interpretation, consistent with federal labor law, and
determined that the provision of the relevant collective bargaining agreement (“CBA”),
which specifically provided for retiree benefits, was ambiguous as to whether the parties
Nos. 09-3897/4204           Price v. Bd. of Trustees of the Ind. Laborer’s          Page 6
                            Pension Fund, et al.


intended the benefits to vest. Id. at 1480. Due to this ambiguity, we looked to extrinsic
evidence, including durational provisions within the CBA and the context of the
bargaining process, and determined that the parties did in fact intend for the retiree
benefits to vest. Id. at 1480–83.

        Subsequent to Yard-Man, this court has consistently applied its analysis to cases
involving the issue of whether parties in the collective bargaining process intended for
retiree benefits to vest according to the terms of the CBA. We have specifically inferred
this intent that benefits vest where an ambiguity exists in the retiree benefits section of
the CBA and where extrinsic evidence evinces the parties’ intention that the benefits
vest. See, e.g., Noe, 520 F.3d at 553 (finding intent to vest where CBA contained
general durational clause, retiree benefits were tied to pension benefits, and promises in
CBA would be illusory without vesting); Yolton v. El Paso Tenn. Pipeline Co., 435 F.3d
571, 581 (6th Cir. 2006) (finding intent to vest could be inferred where CBA contained
general durational clause); Maurer v. Joy Techs. Inc., 212 F.3d 907, 917–18 (6th Cir.
2000) (finding intent to vest where durational clause of CBA was general rather than
specific); Int’l Union, United Auto., Aerospace, & Agric. Implement Workers of Am. v.
BVR Liquidating, Inc., 190 F.3d 768, 774 (6th Cir. 1999) (holding that district court
should have considered terms of insurance agreement where CBA was ambiguous as to
intent to vest). Price now seizes upon our reasoning in Yard-Man and its progeny and
argues that the intent to vest can be inferred in this case.

        Admittedly Yard-Man contains many similarities to this case, which would make
its application attractive. Price’s Occupational Disability Benefits are arguably similar
in nature to the retiree health benefits at issue in Yard-Man. Additionally, the Plan in
this case indicates that Price was a union member, working under a CBA. Yet before
we plunge headlong—and perhaps haphazardly—into finding a Yard-Man inference
here, we pause to consider whether Yard-Man’s framework is even workable with the
facts present. In considering this issue, we note that principled distinctions exist
between this case and the Yard-Man line of cases. After careful consideration, we
Nos. 09-3897/4204           Price v. Bd. of Trustees of the Ind. Laborer’s           Page 7
                            Pension Fund, et al.


believe that these distinctions caution against applying Yard-Man’s set of rules in this
context.

        Chief among these distinctions is that, unlike in Yard-Man, where the benefit at
issue was a retiree health benefit, the benefit at issue here is an occupational disability
benefit. Our case law has not addressed whether the Yard-Man inference can be
appropriately applied outside the context of retiree health benefits.          This was a
distinction that the district court apparently did not find significant. Instead, that court
reasoned that “occupationally disabled” was a status similar to the “retiree” status
because both are open to their benefits being negotiated away by future bargaining
parties. Price, 2:07-cv-00933 at 6. We are not persuaded that the occupationally
disabled status and retiree status can be quite so easily analogized. And we again believe
that Yard-Man’s own language makes that case difficult to apply outside the context of
retiree health benefits.

        To begin with, the Yard-Man court specifically recognized a uniqueness in the
retiree status because retiree benefits are considered a form of delayed compensation or
reward for past compensation. 716 F.2d at 1482. Because these benefits are a form of
delayed compensation, it is unlikely that the parties would leave them subject to future
negotiations. Thus, the court may properly infer that the parties intended for retiree
benefits to vest. Id. While this reasoning may hold true for retiree benefits, it resonates
less in the context of disability benefits. Specifically, occupational disability benefits
generally cannot be considered a form of delayed compensation. And, unlike retiree
benefits where everyone meeting the length-of-service requirement will realize the
benefit, only a small portion of those meeting the length-of-service requirement for
occupational disability benefits will actually realize the benefit. Thus, rather than
representing a form of delayed compensation, disability benefits are more appropriately
characterized as an uncertain potentially realized benefit.

        Moreover, Yard-Man notes a uniqueness in the retiree status because unions do
not owe retired persons any obligation to bargain for their continued benefits. Id. Thus,
Nos. 09-3897/4204                Price v. Bd. of Trustees of the Ind. Laborer’s                   Page 8
                                 Pension Fund, et al.


Yard-Man teaches, it is more likely that the parties would intend the retiree benefits to
vest to avoid the benefits being left to future negotiations. Id. Unlike this feature of
retiree status, the occupationally disabled status does not necessarily leave itself open
to unrepresented future negotiations. This status is not as likely to be a permanent status,
as is the case with the retiree status, because an occupationally disabled person might
expect to recover at some point and return to a position of union representation. A more
fundamental issue related to the occupationally disabled status is whether a person in this
status is still considered an “employee” for the purpose of union bargaining. The record
in this case is silent as to whether Price remained an employee for the purpose of union
membership. However, it is likely that at least some persons in the occupationally
disabled status would be employees—and union members—due to the requirements
imposed by federal law. Specifically, the Family Medical Leave Act mandates that
employers must provide an eligible employee with twelve workweeks of leave during
a 12-month period if the leave is required due to “a serious health condition that makes
the employee unable to perform the functions of the position of such employee.” 29
U.S.C. § 2612(a)(1)(D). In addition, while the Americans with Disabilities Act does not
require employers to grant a specified amount of leave to disabled employees, this act
does require employers to reasonably accommodate disabled employees, unless the
employer demonstrates undue hardship. 42 U.S.C. § 12112(b)(5)(A). Also, this court
has specifically noted that an employer might be required to provide an extended leave
period as part of a reasonable accommodation. See Cleveland v. Fed. Express Corp.,
83 F. App’x 74, 79 (6th Cir. 2003) (holding that a question of fact existed as to whether
six month leave was a reasonable accommodation). Thus, it is possible that some
disabled persons would never leave the confines of union bargaining. This possibility
strongly cuts against applying the Yard-Man inference to this status.1

         1
           Furthermore, we note that even if the Yard-Man framework was applicable to occupational
disability benefits, Price has not produced any CBA upon which we can infer that the parties intended for
his benefits to vest. To apply the Yard-Man inference in the absence of a CBA would require a court to
assume—without any evidence confirming—that Price’s Occupational Disability Benefits were provided
for in the CBA. Moreover, our case law has consistently stated that the parties can establish a lack of
intent to vest by including language within the CBA stating that the specific benefit would not survive the
expiration of the CBA. Noe, 520 F.3d at 562. These so-called specific durational clauses allow the parties
to overcome any inference that otherwise might exist regarding their intent for a benefit to vest. Applying
Nos. 09-3897/4204               Price v. Bd. of Trustees of the Ind. Laborer’s                 Page 9
                                Pension Fund, et al.


        Our analysis leaves us convinced that Yard-Man’s framework cannot be applied
here. Yet, our inquiry does not end there because the Board argues that in the absence
of Yard-Man, we should apply this court’s precedent in Sprague v. General Motors
Corp., 133 F.3d 388, 400 (6th Cir. 1998) (en banc). In Sprague, we evaluated whether
retiree health benefits vested in favor of salaried, non-union General Motors employees.
Id. at 393. We ultimately held that when a benefit is unilaterally provided by an
employer, the plan documents must contain a clear and express statement of intent to
vest. Id. at 400. Because that language was lacking in Sprague, the benefits did not
vest. Id. Applying Sprague to this case also presents an attractive solution. Yet for
many of the reasons stated above, we do not believe that Sprague governs the outcome
of this case either. The benefits at issue in Sprague were specifically characterized as
unilaterally offered benefits. Id. at 393, 402-03. Here, however, the administrative
record makes clear that Price’s Occupational Disability Benefits were bargained-for and
not unilaterally provided. Again, we are not convinced that the factual distinctions in
this case can so easily be dismissed. Moreover, we believe that this case is properly
understood under a different framework, one that does not include either Yard-Man or
Sprague.

                                                 IV.

        If Price’s Occupational Disability Benefits do not vest under ERISA’s statutory
vesting requirements and the Yard-Man and Sprague frameworks are inapplicable, then
the only possible source for vesting of Price’s benefits is the Plan itself. Section 15.1 of
the Plan clearly gives the Board authority to amend the Plan. Yet it also specifically
prohibits any amendment “which results in reduced benefits for any Participant whose
rights have already become vested under the provisions of the Plan on the date the
amendment is made, except upon the advice and counsel of an enrolled actuary.” The



the Yard-Man inference to this case, without the benefit of consulting the relevant CBA, might
inadvertently thwart the parties’ intent to specifically prevent the vesting of Occupational Disability
Benefits. At minimum, this application of Yard-Man would undercut future parties’ ability to prevent
vesting through specific durational clauses, which would undermine Yard-Man’s carefully balanced
reasoning.
Nos. 09-3897/4204           Price v. Bd. of Trustees of the Ind. Laborer’s       Page 10
                            Pension Fund, et al.


issue then becomes whether Price’s Occupational Disability Benefits became vested
within the meaning of the Plan such that the Amendment could not be applied to him.

       At the outset, we pause to determine whether the Board’s decision denying
Price’s appeal should be given any deference. The answer to this question lies in how
the issue is framed. The district court reviewed the Board’s decision de novo by framing
the issue as whether the “Plan Amendment violate[d] ERISA.” Price, 2:07-cv-00933
at 3. Yet we have already determined that neither ERISA nor Yard-Man provide for
vesting in this case. Moreover, Price’s own complaint, filed following an appeal of the
denial of his Occupational Disability Benefits, was brought under 29 U.S.C.
§ 1132(a)(1)(B), which allows for civil actions “to recover benefits due to [a claimant]
under the terms of his plan.” When the issue is properly framed as whether Price’s
Occupational Disability Benefits vested under the terms of this Plan, then de novo
review seems less appropriate. Rather, the standard for reviewing an administrator’s
determination on an individual’s claim for benefits seems most appropriate.

       When an ERISA benefits plan gives the administrator discretion in interpreting
its terms or making benefits determinations, both this court and the district court review
the administrator’s decision under the arbitrary and capricious standard. See Kovach v.
Zurich Am. Ins. Co., 587 F.3d 323, 328 (6th Cir. 2009) (citing Firestone Tire & Rubber
Co. v. Bruch, 489 U.S. 101, 111–15 (1989)); Jones v. Metro. Life Ins. Co., 385 F.3d 654,
659–60 (6th Cir. 2004); Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th
Cir. 1998). Under this standard of review, “we must uphold the administrator’s decision
if the administrator’s interpretation of the Plan’s provisions is reasonable.” Kovach,
587 F.3d at 328 (alteration and internal quotation marks omitted). While federal case
law has created confusion on the applicable standard of review applicable to cases
involving vesting of welfare benefits, court-fashioned common-law principles for
interpreting ERISA welfare plans “are properly understood as aids to determining
whether the denial of benefits by the administrator is reasonable, rather than as warrants
for a court’s resolving interpretive disputes without any deference to the administrator’s
Nos. 09-3897/4204                 Price v. Bd. of Trustees of the Ind. Laborer’s                   Page 11
                                  Pension Fund, et al.


exercise of interpretive discretion.” Marrs v. Motorola Inc., 577 F.3d 783, 786–87 (7th
Cir. 2009).

         Applying these mandates here, we conclude that, if the Plan gives the Board
discretion to interpret its terms, the essence of this case turns on the reasonableness of
the Board’s decision. And, indeed, the Plan does give such discretion, and that
discretion was invoked by the Board in terminating Price’s benefits. Section 11.9
provides that “[t]he Board of Trustees shall have the exclusive right and discretion to
interpret the terms and provisions of the Plan . . . .” Therefore, the Board’s decision
must be reviewed under the arbitrary and capricious standard of review, using common-
law principles as aids in undertaking this review, and looking to the terms of the Plan to
determine whether or not the Board’s interpretation was reasonable. See Marrs, 577
F.3d at 786–87.

         We pause briefly to note that, while agreeing that the arbitrary and capricious
standard applies to review of Price’s claim, our concurring colleague nonetheless
suggests that Price’s disability benefits became vested at the time they were awarded,
regardless of the use of the terms of the Plan or any intent inferred therefrom. In fact,
our concurring colleague states that the subsequent amendment to the plan had “no
proper impact at all” on Price’s receipt of benefits. The concurrence claims that when
the Plan found Price eligible for disability benefits, it effectively issued an “IOU” that
was “a single and discrete event that was complete at the time the Plan made the award
decision.” Yet, our colleague provides no support for such assertions, either from the
Plan itself or from the controlling statutory or case law.2 Contrary to the claims in the
concurrence, review of the Board’s decision necessarily entails looking to the terms of


         2
           The Second Circuit has held that where an employee benefits plan provides for disability
benefits, those benefits vest “no later than the time that the employee becomes disabled.” Feifer v.
Prudential Ins. Co. of Am., 306 F.3d 1202, 1212 (2d Cir. 2002). Yet, in both Feifer and in Gibbs ex rel.
Estate of Gibbs v. CIGNA Corp., 440 F.3d 571 (2d Cir. 2006), where that same principle also was applied,
the welfare benefits plans at issue did not contain explicit language reserving the right to amend or revoke
the challenged benefits, while the Plan at issue here does. See Gibbs, 440 F.3d at 577; Feifer, 306 F.3d
at 1211. In fact, in Gibbs, the plan contained a provision expressly stating that “[a]ny modification or
termination will not affect [the employee’s] right to benefits from a covered disability that occurred before
the termination or modification.” 440 F.3d at 577. Thus, these cases are distinguishable from Price’s case,
and the Second Circuit’s holding does not alter the outcome here.
Nos. 09-3897/4204                  Price v. Bd. of Trustees of the Ind. Laborer’s                     Page 12
                                   Pension Fund, et al.


the Plan to determine if Price’s disability benefits vested, as it is the Plan itself that sets
forth the terms by which benefits are conferred, vested, or terminated.3

         In reviewing the terms of the Plan, it would be tempting to find that the language
of the Plan indicates an intent to vest because the Plan provides that amendments may
not reduce benefits that have become “vested” in Section 15.1. However, an analysis
of the context in which the word is used shows that it applies to retiree benefits and not
disability benefits. Article 7A, which governs Occupational Disability Benefits, does
not use the term vested or accrued to refer to or to modify the term “Occupational
Disability Benefit.” Nor does it provide any other vesting provisions for disability
benefits. Thus, one must look to other sections of the Plan for a definition of vesting,
since the Plan does not expressly provide one. The closest the Plan gets to a definition
of “vesting” is Section 9.2, titled “Vesting Schedule,” which states that “[a] participant
who begins benefit payments on or after June 1, 1997 shall be vested in his Accrued
Benefit . . . .” This section then points to the term “Accrued Benefit,” which is defined
in Section 2.1(a) as “the monthly benefit that has been earned by a Participant for the
years of Service he worked for an Employer according to the benefit formula described
in section 4.2 hereof.” Moving to Section 4.2, which is titled “Amount of Normal
Retirement Benefit,” this section provides a detailed formula for calculating a
participant’s monthly “Normal Retirement Benefit.” Specifically, Normal Retirement
Benefits are calculated using the sum of a participant’s “Past Credited Service Benefit”
and his “Future Credited Service Benefit.” The Future Credited Service Benefit
provision provides differing formulations depending on the participant’s retirement date,
and the Past Credited Service Benefit specifically references the “retired status.”

         3
           For example, the Plan requires that anyone seeking receipt of Occupational Disability Benefits
must have at least ten years of service at the time of his disability. The Plan also requires that the recipient
provide a copy of any federal income tax form reporting income earned from supplemental employment
in order to continue receiving benefits. Most importantly, the Plan explains that benefits may be
terminated for a number of reasons, including if the recipient’s annual income from supplemental
employment exceeds 150 percent of his annual Occupational Disability Benefit, if the recipient fails to
provide the Board of Trustees evidence of income from supplemental employment, or if the recipient
refuses to undergo a medical examination as requested by the Board of Trustees. Accordingly, though our
colleague in the concurrence suggests that the terms of the Plan become irrelevant at the moment an
individual first receives disability benefits, in fact, it is the very terms of the Plan that determine the ways
that such benefits can be terminated even after they have already been provided to a recipient.
Nos. 09-3897/4204                Price v. Bd. of Trustees of the Ind. Laborer’s                Page 13
                                 Pension Fund, et al.


          Reading all of these provisions together, it would not seem unreasonable for the
Board to determine that Price’s Occupational Disability Benefits were not “Accrued
Benefits” and therefore did not vest. As noted above, Article 7A, which covers
Occupational Disability Benefits, does not contain specific vesting language. Nor do
Sections 9.2, 2.1(a), or 4.2 contain language including the Occupational Disability
Benefit within the meaning of “vested” or “Accrued Benefit.” Instead, Section 4.2
specifically refers to the “retired status” and provides amounts based on retirement
dates.4

          Price nevertheless argues that his benefits vested under Section 7A.2 because that
section provides that “[t]he Occupational Disability Benefit shall be a monthly benefit
equal to 65 percent of the Participant’s vested Accrued Benefit, unreduced for early
payment.” Although Price’s alternate interpretation of Section 7A.2 could be plausible,
that would not render the Board’s interpretation unreasonable.                       Further, Price’s
interpretation does not seem to be the most logical reading of that section. The term
“vested” modifies the phrase “Accrued Benefit,” and the definition of Accrued Benefit
in Sections 2.1(a) and 4.2 does not contain any language indicating that Occupational
Disability Benefits are Accrued Benefits. To adopt Price’s reading of Section 7A.2
would seemingly rewrite that section to state that “the vested Occupational Disability
Benefit . . .” or would insert the term “Occupational Disability Benefit” within the
definition of Accrued Benefit. A more logical reading of Section 7A.2 would seem to
be that rather than providing a vested right to Occupational Disability Benefits, Section
7A.2 merely provides a formula for calculating the benefit amount.




          4
           We pause to note that, despite the assertion made by our colleague in the concurrence, we do
not suggest that the difference between pension benefits and welfare benefits alone justifies the Board’s
decision to revoke Price’s Occupational Disability Benefits. As we explained above, the difference
between pension and welfare benefits does compel our conclusion that Yard-Man cannot be applied to this
case. However, whether the Board properly decided to terminate Price’s disability benefits requires a
review of the Board’s interpretation of the terms of the Plan as applied to Price, and whether such
interpretation was arbitrary and capricious. Thus, our discussion of the reasonableness of the Board’s
decision focuses on the Plan’s use of the term “vest” in relation to the use of the terms “Occupational
Disability Benefit,” “Retirement Benefit,” and “Accrued Benefit,” and not, as the concurrence suggests,
on the difference between those benefits.
Nos. 09-3897/4204                Price v. Bd. of Trustees of the Ind. Laborer’s                Page 14
                                 Pension Fund, et al.


         The district court, however, did not review the Board’s determination under the
arbitrary and capricious standard, and neither party addressed the issue using the proper
standard of review in the district court or before this court. Accordingly, we believe that
the matter must be remanded to the district court. There, the parties will have the
opportunity to brief the issue with the correct standard in mind and the district court may
properly review the Board’s decision regarding the interpretation of the terms of the Plan
and the resulting termination of Price’s benefits using the arbitrary and capricious
standard.5 Additionally, because we vacate the district court’s judgment in favor of
Price, the award of attorney’s fees in favor of Price is no longer appropriate. See Sec’y
of Dep’t of Labor v. King, 775 F.2d 666, 669 (6th Cir. 1985) (stating the factors for
determining fee awards in ERISA cases). Accordingly, we vacate this decision as well.

                                                  V.

         For the foregoing reasons, we VACATE the decision of the district court and
REMAND for further proceedings consistent with this opinion.




         5
           Although we have undertaken a brief and cursory review of the terms of the Plan and its use of
the term “vest,” we do not intend to prejudge the outcome of this case on remand under the arbitrary and
capricious standard. Rather, we do so both in response to the arguments raised by Price in his brief and,
in light of the alternative framework proposed by the concurrence, to provide a clear and appropriate
starting point from which the district court may engage in its own analysis on remand.
Nos. 09-3897/4204           Price v. Bd. of Trustees of the Ind. Laborer’s        Page 15
                            Pension Fund, et al.


                               _____________________

                                  CONCURRENCE
                               _____________________

       JONKER, District Judge, CONCURRING. I agree fully with the lead opinion’s
analysis and conclusion that Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609 (6th
Cir. 1998), rather than Int’l Union, United Auto., Aerospace, & Agric. Implement
Workers of Am. v. Yard-Man Inc., 716 F.2d 1476 (6th Cir. 1983), establishes the
appropriate framework of review here, and I have no objection to remanding the case to
the District Court for application of the Wilkins framework in the first instance. I do not
believe a remand is necessary, however, because in my view a change in the framework
of review does not alter the correct outcome in the case. I would readily vote to affirm
the District Court’s original decision now under the Wilkins standard.

       The key insight of the District Court, and the practical hinge of its decision, was
recognition that this case involves a decision to terminate already awarded benefits, not
a decision to grant or deny benefits in the first instance. In my view, this is a critical
difference. Everyone agrees Mr. Price originally qualified for and received an award of
complete disability benefits in 1990. At that time the Plan by its terms promised to pay
the benefit all the way to early retirement age, as long as the qualifying participant
remained disabled. Everyone further agrees that Mr. Price later qualified for and
received an award of the Plan’s occupational disability benefit in 2001. At that time the
Plan by its terms promised to pay this benefit all the way to early retirement age, as long
as the qualifying participant remained disabled. And everyone agrees that Mr. Price
remains disabled to this very day. Even so, the Plan stopped paying Mr. Price the
promised disability benefit on January 1, 2007, not because he reached early retirement
age, and not because his disability status changed, but solely because the Plan adopted
an amendment after Mr. Price’s award that cut the occupational benefit off effective
December 31, 2006. Of course the amendment applies by its terms to anyone who first
qualifies for the benefit after the date of the amendment; the Plan had no obligation to
continue to offer the same package of welfare benefits to potential beneficiaries that it
Nos. 09-3897/4204            Price v. Bd. of Trustees of the Ind. Laborer’s          Page 16
                             Pension Fund, et al.


had previously offered. But for someone like Mr. Price, whose disability benefit was
first awarded by the Plan before the amendment, when the Plan promised to pay the
benefit until the later of early retirement age or the end of disability status, I believe the
amendment has no proper impact at all.

        What happens when the Plan awards a disability benefit to a qualified participant
like Mr. Price? In my view, when the Plan initially decides that a participant qualifies
– that the participant has worked the required ten years, has demonstrated disability
status and has otherwise satisfied the requirements for coverage – and awards the
disability benefit, something fundamentally changes: the Plan’s disability benefit
package generically offered to all qualifying participants confers enforceable contractual
rights and obligations on the Plan and on the particular qualifying participant. Those
contract rights and obligations, in my view, are defined by the terms of the Plan in effect
at the time of the initial qualification decision. It is as though the Plan effectively issues
the participant a benefit package IOU promising to pay the terms of the benefit in effect
at the time of qualification. In the case of Mr. Price, the benefit package promised
payment until the later of early retirement age or the end of disability status. The Plan
remained free to require Mr. Price to demonstrate his continuing disability status from
time to time, because the Plan terms said so at the time Mr. Price originally qualified.
But each such review was not a new decision to award benefits; rather, it was a simple
implementation of the terms of the benefit package conferred upon Mr. Price in the first
instance. The decision to award the benefit package was a single and discrete event that
was complete at the time the Plan made the award decision, and that conferred
enforceable contract rights and obligations on each party.

        The lead opinion is quite correct to observe that I have cited no case or statute
that describes or applies the disability benefit award in the terms I have just used. It is,
I believe, equally correct to observe that the lead opinion cites no authority that applies
the general rules upon which we all agree to the particular fact pattern we have here. In
my view, citations to a particular case or statute cannot settle the precise dispute here
because there is no such authority, at least none that the parties have cited or that our
Nos. 09-3897/4204           Price v. Bd. of Trustees of the Ind. Laborer’s         Page 17
                            Pension Fund, et al.


independent research has uncovered. It is the apparent dearth of on point authority that
leads to my effort to articulate for the first time a framework of analysis that is both
faithful to the agreed general rules and at the same time respectful of what I believe are
the real, reasonable and enforceable contractual expectations of the parties.

        The framework I am advocating has the salutary practical effect of treating this
case, which provides disability benefits through a trust fund created under a collective
bargaining agreement, in the same way federal courts routinely treat ERISA disability
cases involving benefits provided through a private insurance contract. Such cases are
a staple of the federal district court docket. I know of no such case in which any party
or the court has suggested that a change in disability benefits offered by the employer’s
disability Plan reaches back to change the terms of a previously awarded disability
benefit under the terms of the Plan, and the insurance policy funding the Plan, in effect
at the time of the initial award. The parties and the courts appear to assume – properly
in my view – that the governing terms of the disability award are the ones in effect at the
time of the original award. In my view, a union employee like Mr. Price, whose
disability benefit is funded by a Trust created under a collective bargaining agreement,
rather than by a private insurance contract, reasonably expects nothing less: the terms
of the Plan in effect at the time of the initial benefit award should define the contractual
rights and obligations of the parties.

        Using the terms of the Plan in effect at the time a participant qualifies for the
initial disability award also works with the other welfare benefit funded through the
Trust in this case. The Plan at issue here provides for not only pension and disability
benefits, but also a death benefit. A death benefit, like a disability benefit, is a welfare
benefit under ERISA and therefore subject to the general rule against vesting of welfare
benefits. Suppose a covered and qualified employee dies and triggers the death benefit.
Does the Plan have the lawful power to amend the terms of the death benefit after the
employee’s death in a way that would prevent payment of the benefit? Under the lead
opinion’s analysis, it would seem the Plan could do so because the amendment would
allow the Plan to deny what had been in place on the original qualifying date. In my
Nos. 09-3897/4204            Price v. Bd. of Trustees of the Ind. Laborer’s           Page 18
                             Pension Fund, et al.


view, the Plan would be obligated to pay the death benefit if the terms of the Plan in
effect on the qualifying date – the date of death – required it. Once again, I believe that
result is consistent with both the agreed general rules governing ERISA welfare benefits,
and the reasonable contractual expectations of the parties.

        Finally, if the lead opinion’s view of the disability benefit prevails, then I would
submit that union employees whose disability benefit is protected only by a Trust like
the one here had better purchase their own private disability insurance policy, too,
because they really do not have meaningful disability protection. I say that, because
once a person is disabled, they are by definition not able to engage in income-generating
work, or at least not income-generating work of the kind they are accustomed to
performing. Nor, obviously, are they able to purchase private disability insurance after
they are already disabled. If the Trust obligated to fund their promised disability benefit
also has the power to amend the Plan after the qualifying disability event in a way that
cuts off the benefit even for people who have already qualified, then there is really no
reliable disability protection at all. Mr. Price, of course, is in exactly that position if the
lead opinion’s view of the Plan’s power prevails.

        The lead opinion suggests that the well-established difference under ERISA
between pension benefits, on the one hand, and welfare benefits – including disability
benefits – on the other hand, may justify the Plan’s decision here to revoke the disability
benefit package it originally awarded to Mr. Price. I respectfully disagree with that
because in my view it overlooks a critical difference between the Plan’s undeniable
power to change the terms of a generally applicable welfare benefit – including a
disability benefit – prospectively for people who have not qualified for the benefit, on
the one hand; and the Plan’s quite different claim to have the unilateral power to change
or even eliminate disability benefit packages it has already awarded. I see nothing in the
ERISA welfare benefit cases, including those dealing with retiree health care benefits,
that suggests the Plan's undisputed power to make prospective changes in available
benefit packages not yet awarded includes the power to unilaterally change or eliminate
a benefit already conferred. A disability benefit award is not a recurring annual
Nos. 09-3897/4204           Price v. Bd. of Trustees of the Ind. Laborer’s       Page 19
                            Pension Fund, et al.


decision; rather, it is a one time decision to grant or deny the benefit package followed
by ongoing administration – including periodic review of disability status – of any
package awarded.

       For this reason, I do not believe it is even necessary to reach the reasonably
possible constructions of the amendment provision of the Plan. I simply do not believe
it applies by its terms to this unique situation. The provision permits amendments to the
benefits offered by the Plan, but this in my view is not the same thing as changing or
eliminating a particular benefit already conferred. Nothing in the Plan language purports
to permit a retroactive change to the contractual terms of a benefit already conferred.
Once the Plan awarded Mr. Price the disability benefit, I believe the Plan was
contractually obligated to pay the benefit by the terms as defined on the date of the
award. And in this case these terms did not permit the Plan to cut off benefits before Mr.
Price reached early retirement age as long as he remained disabled, as all agree he is to
this very day.

       Accordingly, I would readily vote to affirm the District Court now, but I do not
object to a remand to give the District Court the first opportunity to apply the Wilkins
standard to this record, or to any expanded record the District Court may find proper.
