MEMORANDUM*

Bazzone appeals from summary judgment in favor of the Automotive Industries Welfare Fund (the Fund) and denial of his own motion for summary judgment in an action to recover retiree dental and health care benefits. Bazzone brought claims on behalf of himself and others similarly situated for recovery of benefits under Sec. 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. Sec. 1132(a), for breach of a collective bargaining agreement under Sec. 301 of the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. Sec. 185, and for breach of fiduciary duties under both acts, 29 U.S.C. Sec. 1104, 1106 and 29 U.S.C. Sec. 186(c)(5). The district court granted summary judgment in favor of the Fund on all claims without ruling on Bazzone's class certification motion. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

Sam Bazzone was a member of the Automotive Machinists Lodge No. 1305 when he retired in June 1982. Upon retirement he was eligible to receive pension, dental and health care benefits, including coverage for dependents, under a 1980-83 collective bargaining agreement. Benefits were provided pursuant to Section 18(b) of the collective bargaining agreement which stated:

The Employer further agrees to pay the Administrator of the Automotive Industries Retiree Fund, effective September 1, 1981, not less than Twelve Dollars and Fifty Cents ($12.50) per employee per month which shall provide Retiree's Health and Welfare Benefits as described in the Summary Plan Description date: September, 1979, including Maintenance of Benefits.

The document referred to as the Summary Plan Description was actually a booklet entitled "Retiree Plan" which contained both a supplement to the summary plan description and the full text of the retiree medical benefit plan (Retiree Plan). The booklet was distributed to plan participants and cautioned them to "[r]ead this booklet carefully as it contains retiree plan provisions." The text of the Retiree Plan described retiree benefits then available and set forth the following express limitations:

If necessary to maintain Plan solvency, a contribution rate may be established for coverage of those persons not eligible for Medicare.

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Retiree coverage shall be limited to funds available, and the trustees may terminate the Retiree Plan if assets are inadequate to cover liabilities.

The Fund is an employee welfare benefit plan within the meaning of Section 3 of ERISA, 29 U.S.C. Sec. 1002(1), and a trust fund within the meaning of Sec. 302(c)(5) of LMRA, 29 U.S.C. Sec. 186(c)(5). It is a multiemployer plan administered by a group of trustees pursuant to a trust agreement originally adopted in 1956. During the 1980-86 period relevant to this appeal the Fund received contributions under more than 400 different collective bargaining agreements.

Upon retirement Bazzone initially received the benefits described in the 1979 Summary Plan Description, but the trustees later reduced certain of those benefits in response to financial difficulties the Fund was facing. Dental coverage was terminated in September 1983, and, beginning in September 1984, retirees were required for the first time to contribute to the cost of coverage for spouses who were not yet eligible for Medicare. In December 1985 Bazzone formally requested the Fund administrator to return his benefits to the level in effect on his retirement date, indicating his belief that Section 18(b) of the 1980-83 collective bargaining agreement provided vested benefits which could not be diminished during the life of employees who retired while that agreement was in effect. The trustees denied Bazzone's request, based on the financial necessity of the benefit changes which he sought to have reversed. They disagreed that Section 18(b) created obligations which outlived the agreement and asserted that the trustees of multiemployer welfare plans have the legal authority to reduce benefits when financially required. This suit ensued.

We review the district court's grant of summary judgment de novo, viewing the evidence in the light most favorable to the party against whom summary judgment was granted. Ariz. Laborers, Teamsters and Cement Masons Local 395 Health and Welfare Trust Fund v. Conquer Cartage Co., 753 F.2d 1512, 1515 (9th Cir.1985). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to prevail as a matter of law. Id.; Fed.R.Civ.P. 56(c).

Bazzone's contention is that his health and welfare benefits could not be diminished during his life because they were contractually "vested." Although benefits provided under an employee welfare benefit plan are expressly exempted from ERISA vesting requirements, 29 U.S.C. Sec. 1051(1), the parties to a collective bargaining agreement may provide that such benefits are vested in the sense that they continue beyond expiration of the agreement. See Bower v. Bunker Hill Co., 725 F.2d 1221, 1223 (9th Cir.1984); Int'l Union, United Auto. Aerospace, and Agricultural Implement Workers v. Yard-Man, 716 F.2d 1476, 1479 (6th Cir.1983), cert. denied, 465 U.S. 1007 (1984). In order for Bazzone's benefits to be "vested" as he uses that term, the collective bargaining agreement must have made two distinct provisions. First, it must have obligated his employer to make contributions beyond the term of the agreement, and, second, it must have eliminated the trustees' power to modify the type or level of benefits, as they reserved the right to do in the Retiree Plan.

Bazzone claims the district court committed three errors in concluding that his welfare benefits were not "vested." First, he says that the court mistakenly read Section 18(b) of the collective bargaining agreement as incorporating by reference the entirety of the 1979 Summary Plan Description, including the limitations noted above, rather than only the description of benefits. Second, he argues that it gave effect to declarations of union and employer association negotiators which were allegedly inadmissible because they included statements of the bargainers' intent to limit retiree benefits to the duration of the collective bargaining agreement. Third, he claims that the court did not recognize the force to be accorded to the inference in favor of vesting. Alternatively, Bazzone claims that there were genuine issues of material fact which precluded summary judgment in favor of the Fund. We consider each claim of error in turn.

The district court found that the collective bargaining agreement incorporated the document entitled Summary Plan Description by reference. That document contained the full text of the Retiree Plan which stated that coverage was limited to funds available and provided that the trustees could terminate the plan if assets were inadequate to cover liabilities. It also allowed the trustees to establish a contribution rate for persons not eligible for Medicare if necessary to maintain plan solvency. The court held that these provisions put Bazzone and other retirees on notice that benefits were subject to modification or termination; Bazzone, however, claims they do not apply to him because they were not specifically mentioned in the collective bargaining agreement. He contends that only the section of the Summary Plan Description which described benefits then available was incorporated by reference, and that related sections limiting or conditioning the right to benefits are not to be deemed included. Apparently no evidence on this issue was tendered, other than the language of Section 18(b) itself. Bazzone simply reasons that the failure to specifically mention the limiting sections defeats incorporation. He also suggests a conflict between the trustees' power to modify benefits and the employers' obligation to make minimum contributions as an additional reason why the Summary Plan Description should not be deemed fully incorporated.

We do not agree. Section 18(b) cannot be read as incorporating the benefit provisions free of the conditions and limitations specifically stated in the Retiree Plan. There is simply no evidence that the parties to the collective bargaining agreement either intended or had the power to effectively rewrite the Retiree Plan by selectively incorporating certain of its provisions and omitting others. Nor do we find a conflict between the pertinent provisions and the minimum contribution requirement. Reducing benefits when financially necessary would not release the employers from their contribution obligations. While there may be some tension between the trustees' power to reduce benefits during the term of the collective bargaining agreement and the "maintenance of benefits" provision therein, this falls short of a direct conflict and is not sufficient to persuade us that the Summary Plan Description was not incorporated in full by the language in Section 18(b).

The district court correctly concluded that both the benefit provisions and the related limitations and conditions were incorporated by reference and that the collective bargaining agreement did not create benefits which were beyond modification by the trustees.

Even if the language of the collective bargaining agreement were deemed ambiguous on the issue of contractual vesting, we would conclude that the retiree health and welfare benefits were subject to modification by the trustees according to the terms of the Retiree Plan. When the meaning of a collective bargaining agreement does not appear from its language, extrinsic evidence may be considered to determine the intent of the parties. Ariz. Laborers, 753 F.2d at 1517-18. The record included declarations of the union and employer association negotiators. The union negotiator explained that prior collective bargaining agreements between these parties had not covered the subject of retiree health and welfare benefits. Consequently, the Retiree Plan, which was an existing benefit program, was discussed at length during the negotiations. The union negotiator recalled telling the employers' negotiator, and other employer representatives in subsequent negotiations, that benefit levels were set by the trustees and could be increased or decreased by them at any time. He also explained that the term "maintenance of benefits" used in Section 18(b) has a fixed and well-understood meaning that benefits will be maintained at the stated level during the life of the collective bargaining agreement. He had never known that term to mean that benefits would be maintained beyond termination of the contract. The negotiator for the employers indicated a similar understanding of the term and also stated that it was the practice of the employer association and union that all provisions of their collective bargaining agreements lasted only during the term of the agreements. Both negotiators said it was their understanding that the retiree medical provision, like all the other provisions, conferred no rights or obligations extending beyond the term of the collective bargaining agreement.

Bazzone offered some unrelated extrinsic evidence to support an inference that the benefits were vested, but he offered no evidence controverting the negotiators' statements. He argued that the declarations were inadmissible, but his argument was based on cases dealing with efforts to modify, interpret or avoid the unambiguous terms of a written agreement on the basis of contrary oral representations, such as Operating Engineers Pension Trust v. Giorgi, 788 F.2d 620, 622-23 (9th Cir.1986); Kemmis v. McGoldrick, 706 F.2d 993, 997 (9th Cir.1983); San Pedro Fisherman's Welfare Fund v. Di Bernardo, 664 F.2d 1344, 1345 (9th Cir.1982); Waggoner v. Dallaire, 649 F.2d 1362, 1366 (9th Cir.1981).

Bazzone's cited decisions are not controlling here because we are concerned only with interpreting what we have assumed arguendo is an ambiguous provision, and we are not considering whether to allow oral modification of an unambiguous written agreement. In such cases " 'the trier of fact may look to the circumstances surrounding the contract's execution, including the preceding negotiations....' [and] should also 'consider the scope of other related collective bargaining agreements, as well as the practice, usage and custom pertaining to all such agreements.' " Ariz. Laborers, 753 F.2d at 1517-18 (quoting Laborers Health and Welfare Trust Fund v. Kaufman & Broad, 707 F.2d 412, 418 (9th Cir.1983) and Kemmis v. McGoldrick, 706 F.2d at 996.) See also Kemmis v. McGoldrick, 767 F.2d 594, 596-97 (9th Cir.1985) (oral evidence of industry custom is admissible).

Bazzone cites Bower v. Bunker Hill Co., 725 F.2d 1221, as authority that retiree benefits are entitled to a "strong inference of vesting" and that he need only show that the collective bargaining agreement did not affirmatively limit the duration of retiree benefits. This argument is lacking in several respects. First, it oversimplifies. Bazzone would have to show both that the collective bargaining agreement did not affirmatively limit the duration of his employer's obligation to make contributions and that it restricted the trustees' power to modify benefit levels. Whether or not Bazzone showed that contributions were not affirmatively limited, incorporation of the summary plan description precluded the latter showing.

Second, the asserted rules cannot be gleaned from Bower, where a panel of this court merely held that because the labor-management agreement failed to explicitly address the duration of retiree insurance benefits and there was extrinsic evidence that the benefits were intended to vest, summary judgment in favor of the employer who terminated benefits was improper. Id. at 1225. Somewhat more support for the asserted rules is found in certain Sixth Circuit cases which hold that retiree benefits provided under a single employer benefit plan are "status" benefits which carry an inference that they continue so long as retiree status is maintained. Policy v. Powell Pressed Steel Co., 770 F.2d 609, 616 (6th Cir.1985), cert. denied, 475 U.S. 1017 (1986); Int'l Union, United Auto. Aerospace, and Agricultural Implement Workers v. Cadillac Malleable Iron Co., 728 F.2d 807, 809 (6th Cir.1984); Yard-Man, 716 F.2d at 1482. However, Bazzone would not prevail even under the rules established in these cases, as they stop short of creating a legal presumption that retiree benefits are vested if not expressly limited in duration. Yard-Man, 716 F.2d at 1482; Cadillac Malleable Iron Co., 728 F.2d at 808. They merely establish one more inference of intent, to be considered along with others. Standing alone, retiree status would be insufficient to find an intent to create interminable benefits. Yard-Man, 716 at 1482.

In this case, the negotiators' affidavits clearly rebutted any inference arising from retiree status. Furthermore, contextual factors undermine the inference. The benefits at issue were provided through a multiemployer welfare benefit plan, not a single employer plan as in the Sixth Circuit cases. The trustees, not the employer, set the level of benefits. Setting a different level of benefits for each of the hundreds of different collective bargaining agreements through which contributions were made would have significantly increased the administrative burden of the trustees. Even assuming the parties had not incorporated the summary plan description and that they had the power to circumscribe the trustees' right to modify benefit levels--and there is some doubt whether they did--the circumstances suggest that they would have stated their intent explicitly. They did not do so.

In an effort to support an inference of vesting, Bazzone makes arguments based on a letter he received from the Fund and oral advice a trustee gave to a prospective retiree. Contrary to Bazzone's assertions, neither of these communications suggested, even indirectly, that retiree welfare benefits were not subject to modification or were interminable. Bazzone also points to variations in durational language in other contract provisions. In the absence of direct evidence of intent this might support an inference of vesting, but in light of the negotiators' affidavits, it does not do so here. Bazzone's emphasis on the absence of "maintenance of benefits" provisions in other collective bargaining agreements under which contributions were made to the Fund is similarly unavailing. This fact simply has no bearing on whether Bazzone's benefits were intended to vest.

Finally, Bazzone claims that summary judgment in favor of the Fund was inappropriate because there were genuine issues of material fact concerning the parties' intent. Summary judgment was inappropriate if a rational trier of fact could reasonably infer that the parties intended to create the type of benefit Bazzone claims. T.W. Elec. Service v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 631 (9th Cir.1987). We have previously noted that "[t]he type of evidence frequently utilized to show intent, such as the bargaining history between the parties, could in some instances be so clear and unambiguous as to preclude contrary inferences as to the parties' intent." Ariz. Laborers, 753 F.2d at 1518 n. 9. We think this is such an instance. The only reasonable inference which can be drawn from the facts before the court is that the collective bargaining agreement incorporated the Retiree Plan provisions which allowed the trustees to modify or terminate benefits and that the parties did not intend to create interminable benefits free of these limitations.

The Fund raises a serious question whether it would be bound by the collective bargaining agreement even if the parties had intended to dictate a particular level of interminable benefits. Because we find that the parties had no such intention, we do not reach the issue.

The judgment is AFFIRMED.