claim of the employer in this case is that w two wage income paid to mr robin act for doing his job is not compensation instead they're free to call whatever they like just don't ask them any questions about purposes isn't the same as capital c compensation for planned purposes and so what i want to know is why was it beyond the discretion of  administrator of the trustees whoever to define compensation narrowly i will grant you to exclude whatever they were the extra payments for the executive board service well i think the two responses to your honor the first is that what the language actually says is that compensation shall not include the value of non wage payments even if such payments are considered income for tax purposes it doesn't say considered wages for tax purposes obviously you can get many forms of income for tax purposes and only some of some forms become are designated as wages so i suppose suppose you all have the executive board money the ten thousand dollars a year which is actually a pretty tidy eight hundred thirty three dollars a month suppose we called that bonus where would it saul in your view under this plan i think that to begin with we'd have to know why it's being called a bonus why would we have to know that i mean they've just put it in a different box say you know you got your monthly payment now we're going to give you some extra money because you're on the executive or the reason is that the employer doesn't get to just call different portions of the amount that they pay you whatever they want to call it and i know trust fund accepted why does not exist with this kind of plan i mean if your plan that you had a different level of review of because the employer doesn't have a level of review the employer doesn't get to interpret the plan language gets to interpret the plan language the employer is the one slapping a label on this and calling it whatever they want to call it well when you look at the plans definition definitions of what they exclude they exclude over time so we know that all compensation is not really compensation short so what we have is the plan isn't that reasonable to compare the over time to the executive committee started because we don't know what the payment for the executive committee is we just have an employer telling the plan we are not calling it salary we're calling it something else we know that we have a whole separate coding for it it's paid quarterly and it's ten thousand a year why doesn't that define it pretty clearly it doesn't define it as anything other than that the employer saying it doesn't it isn't salary well would that would you agree that the company could cut could decide to cut the executive committee stipend say to fifteen hundred dollars a year sure thousand dollars i think it is i have no reason to think that there's a difference between these two types of payment other than that the employer says it is and the employer isn't the one that gets to say it is the pension fund has to decide whether or not there's a basis for distinguishing between these two types of payment the pension fund has no basis other than the employer saying we call it something else and then pension fund is a relying on the fact that some multiemployer pension fund yes which has set up these various categories it's got to get all the employers to chip in the correct amount of money for their employees but that takes you to another problem which is that this employer apparently has been making appropriate contributions to the pension fund for the the salary component to say l a that an employer has for years just decided that some portion of what it pays mr abney after doing its job it just doesn't have to make contributions on that that the trustee has a duty to mr ravenel back to make sure that the employer is making proper contributions not just accept it at its word that it's ok that we just decided not to make contributions on a significant percentage of what we pay this man the employer doesn't provide them any explanation whatsoever as to why they're not paying so under this approach the employer well they say they're not paying because they don't understand this to be within the definition of compensation that's how i read that one sentence or whatever it is that is their reason so they're that they're not saying he isn't really on the board they're not saying all sorts of things you're saying we don't regard for people for money as compensation they say we just decided not to call that compensation we as the employer we have no right to decide what the plan terms mean we just decided some portion of what we pay this guy we're not going to make contributions we don't we're not going to tell you why we don't have an explanation it's not because this was not for something other than doing his job it's not because of the reimbursement for expenses because of course that's something the plan came up with much later months were up in the district  inappropriate to do but i do think it's implausible to think that people who are members of an executive board working for a union are incurring ten thousand dollars a year in expenses for attending meetings that are part of their regular job duties and mr abbott that would have absolutely been able to offer evidence about the fact that there are no expenses and of course nobody on the other side can point to any expenses but we didn't offer things outside the administrative record because that would be inappropriate and we didn't expect  is paying taxes on this money in the employer's reporting these things as wages that are paid no good to keep she went to jail and she had no reason to think that it was anything other than money paid to him for doing his job and this is a man who is a high ranking i mean he's a business representative he's on the board he makes decisions about how much he gets paid and why he gets paid and who gets paid he could have offered explanations on these things but there was never a point during the administrative proceedings that anyone gave them any reason to think that he had to explain that he's getting paid for doing his job because they never refuted that they never said he wasn't getting paid for doing his job they just don't explain it they just say this money isn't we're just not going to make contributions on that money we think this sets a terrible precedent if a plan can just defer to employers saying half of what we pay this guy you know it here it's ten thousand dollars but it could be whatever it is we're just not considering that salary the trustee takes that at the employer's word and says that's just fine and and the district court agrees with that there's no standard here it's standardless that's the definition of good morning doesn't lean on behalf of apple u b c pension fund so here's what bothers me about your position first you say it's just not confrontation and the come up with this argument that it's just sort of a lump sum for expense reimbursement but a quick arithmetical operation tells you that this is eight hundred thirty three dollars a  month for expense reimbursement and i've been musing about what that would buy you know kind of limo service to and from you know a very distant location walking around money the you know walking around money and the fact that this didn't come up in a way that he was able to come back and say you know it's not expense reimbursement because my expenses are you know twenty five dollars for a cab to and from the meetings it's nothing if remote bike eight hundred thirty three dollars i'm i'm very concerned that that just your say so that this isn't compensation is enough without any opportunity for him to test it well i can answer that in a couple of ways you know there are a number of well with respect to the amount of the expense the stipend that's been paid to him the stipend take your word with no evidence in the record whatever to suggest that that sit and one place in your brief you argue that you don't must be expense reimbursement because he's already getting his salary that it that the employers able to make determinations on behalf of the plan in this case the plan didn't also know what they were they asked the employer the employer gave them a response this is what the light on it makes a difference to him if his last his highest three years have an extra ten thousand and ninety one to the pension that he's going to be able to get and that the fund isn't being diligent to make sure that employers are making only way payment act this is something he should have known i think everybody knows the illinois wage payment act provides that for salaried employees the latest you can pay a salaried employee is one month when this is coming every three months that should give you an indication this is not honor those allow and in those particular cases all the plan did there was to ask the sponsor what are these payments for and what they did was they relied on what the plan sponsor said and the answer that makes any sense to that question here and it's actually not mr been expressed on the air travel under the illinois wage payment law which may not even apply to the charge of the general term of wage payment of this are using a different term and the plan uses the plan uses the term compensation but he's using the fact that this is something that's compensation for his services when that occurs you can obviously you can obviously say that this no matter how much you think it may be is clearly not or something very different than what is considered compensation for your services on it extra compensation for his service  simple well i think for the reasons we stated our brief well we have we have a lot more we have evidence here where it shows that again we're relying on the sponsors intent something that the  the sponsor or the something that both again those two cases relied on i'm not sure those are the statements that were relied on in those two particular cases the before his particular part he could have pill was going on for instance the at the time he wrote the letter for instance on august thirtieth to the plan raising this particular issue he could have easily have then asked the employer  what are these payments for he could have obviously have done that and if he would ask the employer his employer the chicago regional council of carpenter's what this was about he would have gotten the same answer and they're saying that this was never with some employers is they will give you things like a correlates and a car allowance will sometimes be paid for nothing ok suggest anything like this because that's it's a way of an employer you didn't give him a chance to explore this issue he well the issue with respect to that we submit is for in gallo they say that we have court that you're provided enough information to make a challenge in court to what's going on what he should have done is to maybe again petition the the board to submit for more information he also makes the disagree with of the court did order remount the problem with his point is that this is an abuse of discretion review and and he may be able to try and pick apart you know on a didn't over even a strict scrutiny basis and that's basically what he's doing here he's running afoul of the standard of discretion in this particular case afforded to the plant here in the plan all they have to do is have been to an interpretation of the the stipends here that's not a salary they have never been had any of the never had any contributions that were made on these particular things this is clearly a reasonable interpretation much less a downright and reasonable interpretation of this  on this idea of the plans repeatedly citing to gallo and referencing that they're allowed to take the plan sponsors explanation into account and i think the cases gallo in other cases are not dealing with a situation where you have a multiplayer plan and one employer just saying we don't have to make contributions on this money because we decided we don't have to do it it's considering a situation where an employer sets up a plan to take care of its employees and says this is what we meant by the language that we drafted in our plan that's a very different scenario than we have here i think when counsel makes a number of suggestions of what mr abbott i could have done he could have asked his employer for a better explanation well he says himself he would have gotten the same answer and the point is the employer didn't give an answer other than well because we said so and that's not good enough trust you shouldn't accept that this is standard list that the trustee does have the right to they have discretion to make decisions but they have to make those decisions on the basis of standards otherwise it is arbitrary  and if the standard is just we take whatever the employer says as you know to be that the truth then that's not a standard and that's why this case of yours all right thank you very much thanks to both counsel will take a center