next case is hansen versus international union of painters and allied trades industry pension  other central  interpretation of the collective bargaining agreement which is the novo standard and then the benefit determination who is deferential arbitrary and capricious standard if the plan grants discretionary that lays out the the basic criteria that the court has to interpret collective bargaining agreements and pension plan documents according to ordinary contract principles when they're not inconsistent with rule labor policy and you have to read a contract as a whole and give meaning to construe according to the plain language so the michael's case gives the same quote in the opinion that i quoted in hansoms brief and and they really michael's court states the exact same criteria and then the michaels decision goes on and  case basically said if the court had to decide they would be inclined to say that the scope of review is that nobody on the collective bargaining agreement is not is outside the scope interpretation cannot controvert the plain language of the document and the michael's case was one of those cases and so is handsome that's the exact point that i made that the that the trustee said well we just don't count these additional hours without reference to the collective bargaining agreement which was not part of the record outpouring and that was the exact problem that the the plan itself is silent on what hours need to be counted so therefore perfect so we can look at the c b s right and let's say you prevail on hours of service yes you still have to put mail on covered employees correct yes right now why should we say that the benefits that your client received from the government through unemployment compensation and worker's comp was paid in accordance with the agreement yes there's nothing in the agreement that i it requiring those funds to be paid rather those funds were paid through the state through the government yes but i would say two things in the briefs both parties cite the provisions of the collective bargaining agreement which require the time employers to to maintain workers compensation and employment compensation benefits and those benefits are maintain workers comp insurance unemployment compensation yes but what i'm struggling with is how does that requirement the employer maintain insurance collective bargaining agreement kicks and without that i think the trustees are correct the plan itself if you just look at the plan and the trustees did that time again so the district  court it doesn't really answer the question well doesn't that doesn't the doesn't the plan document actually exclude workers comp and unemployment comp no i don't think so and the plan specifically adopts the department of labor say that hours and hours of service does not include payments made for the purpose of complying with markers comp and unemployment cop laws but yes i believe judge kelly dealt with that in the opinion before the remain and obviously this plan is not maintained to provide those type of benefits so the exclusion doesn't apply and i don't believe judge go ahead in extensive footnote on the subject and he determined that the department of labor regulation which is adopted by the plan controls so getting back to the other question i think from being ignored and the crux saying rd when you say this provision you're talking thirteen three hundred and fifteen point three yes but that that also says in accordance with you green that that's why i asked the question yes and that's where the district courts an stopped but then they ignore the last clause of the provision which says shall be counted as hours for which contributions are capable so you've got this category of other have to count those hours even though there have not been contributions by an employer to the plan per say these are other hours where no kind interview shows were made and those hours have to be counted and each employee covered by this agreement received payments as follows and this is one of the ways that those employees under that that cooperation initiative are to be paid let me which adopts the department of labor regulation i believe that is the subject of the the moral decision that the court asked me to of the farm deal with different benefits but i don't believe there are separate completely separate entities that don't refer to each other book form yes they're there payments that are needed for service that was rendered and it's an extra dollar going to a vacation fund not paid into that pension fund but all the more case the plan had the same one thousand hour of a debility rule but there was an undisputed declaration that the intention of the vacation trust was a savings vehicle and was never intended as a of whether payments from the vacation trast what were in the nature of a traditional paid vacation or if it was more in the nature of a voluntary savings plan and because the vacation benefit was always labeled and identified as a vacation then it should be treated like a paid vacation and interesting enough i judge young here from our own eastern district wrote an opinion three years later in anderson nurses bakery confection union pension fund where he cited more and it's the same situation he d the scope of the department of labor regulation that's incorporated into the plan and interesting the judge on plied the din of a standard in reviewing the collective bargaining and in that case the appeals committe decided that the settlement payments were based on longevity and not layout so once again judge john inquired into the nature of the benefit to determine and interpret the  that's part of the wages that are already counted you know that and you know kind of double but what judge leon was saying in anderson and what the court in the th circuit said in more in the dissent is you have to look into the comp arena apparently there's a presumption as you get older it's harder to return to work and so rather than litigate ready even though he was hurt and that he would have qualified he you know he would have had plenty of more way more than a one thousand hours  asked yes he made a determination with his worker's comp lawyer to stipulate that his data disability was his th birthday because that made that worker's comp decision he didn't realize the implication that would have for losing his pension yeah he really it's unfortunate that that decision was made because we wouldn't be here if the be no question he had more than a one thousand hours and the timing was so bad because he got hurt the st week of january so he only had eighty eight half hours in th at year i would like to be able to argue that but he really unfortunately that really hurt him in the pension case and you know now we're dealing with this you have a one thousand hours you have to count the additional international painters now is an important test is the trustees determine eligibility for benefits under the plan in this case they reviewed the c d a in order to make that determination but mr hansen's i would ability and found that workers comp unemployment and the vacation hours were not covered employment judge kelly viewed the trustees decision and her viewed the terms of the c d a in his decision and ultimately agreed but we don't dispute that the review of this d b a is not a lot of the deferential review standard we were like other if you argue that in the district court no we it had ban misrepresents throughout but it was in our brief noted that it was limited to that even the language of it however says that for each our work including ours attributable show up time and other hours for which pays received by the employee in accordance with the agreement shall be counted as ours for which contributions are payable in this case the contribution we would argue that that does not support additional credit to mr hanson anyway but that section going through all of article thirteen there are individual headings for each of the fringe benefit funds that the employers agree to make contributions to under the or i guess your fallback position is it's immaterial that if it did apply here you're saying these payments were made in accordance with the agreement because unemployment carbon workers comp are paid pursu which seems to be a general reference to article thirteen which would cover this and as well it we are the funds position is that the language of thirteen quite fourteen three even if it were to be applied would not result in additional hours of coverage employment to be credited to mr hanson what it which is what is required by the plan document for eligibility for disability pension benefit because there are no hours  mr hanson states in his briefs the vacation benefits would result in a maximum going to dish in all twenty six hours of credit if his the amount of the benefit which was eight hundred and twenty two dollars were divided by his wage rate at the time which still leaves him short of the one thousand hours required in the two years prior to the data just ability for eligibility well i understand the vacation fund payments it's a separate issue but but here i want to can we just go back what point what should we make of the language for purposes of this article does it cover all of article thirteen in terms of how  fund then aren't we back to within the definition of current employment that these become hours of service for which an employer is obligated to make contributions opiate the obligation to make contributions plan document is simply the relevant subsection being a hours of servitude for which an employer is obligated to make contributions to the clan or the transfer credit to the plan the actual requirement and to the plan is that the contributions are required by the terms i do not believe that the team's argument extends the obligations of the employer for additional contribution the other important point going to the big hours is the acknowledgement more regarding the prohibition against double counting even in the distance which mr berman refers to when it goes into the regulation for the hours of service vacation it references the calculation whereby the or the amount of the benefit is divided by the wages in this case so that sorry the double counting issue is clearly prohibited by the regulations if there weren't i was all surprised at that because i thought you were going to argue that we shouldn't do that because that would violate the war against double counting it what is your argument is that if you're making the father go if you're wrong about that you don't get credit for the with these are made on the basis of units of time that is by our why would we view this as one dollar per hour the gullah per hour is the rate at which the contribution is paid by the employer to the fund the benefit to the employee when it's paid is simply paid as a benefit the employee to my understanding would not take up eight hundred and twenty two hours in a worst case scenario  as covered employment and as of the methodology for identifying the number of hours would we be looking at a rate of one dollar per hour rather than his regular hourly rate and i'm not saying we get to that point but if we did and not three i follow why given the two differing options that are provided in the regulation this by by way of the examples that are given doesn't  example of going through the regulation detail someone who has an hourly wage and receives a benefit which seems the most analogous to this who have a really cation benefit and in those examples the methodology to that works certain hours the employer pays contribution to a variety of funds including the vacation fund and the pension fund and those hours have been counted when worked and paid but about your colleagues argument that this is in the actual language describing the vacation benefit in the collective bargaining agreement it's not clear that that distinction as to a benefit  it is a fringe benefit i don't know that that distinction changes the interpretation of the plan the c b a or the regulations regarding hours  says for the purpose of this article article is capitalized clearly it's referring to article thirteen not just the c i phone i think the  immaterial and even if applies here it doesn't result in the desired additional hours because you go back to the definitions in the plan of hours of service uncovered employment and therefore you know section article thirteen dollars does apply to the entire article and the deeming provision has to be applied and require the additional hours even though the narrow plan definitions would exclude the article and reporting purporting to change the eligibility requirements and how could it do that for the pension plan and the trustees who are not even parties to the collective bargaining agreement well unfortunately they're stuck with this bad language they may not like it but it is part of the collective bargaining agreement does define the how the contributions are made by employers to the f that's been adopted by the trust agreement and i believe the trustees are bound by it even though it changes the need definitions that they have it doesn't make perfect sense because what is workers comp when you get hurt on the job you can't work your pay to substitute for wages if you don't get credit for that they're not going to fund no not by the funding and that's sort of the point here the the reason why i tell me if i'm mistaken on this because it is a bit of an ok so the government fulfills its obligation to the worker then why should the the pension plan take a hit is whoa the pension plan is discharge its duty by making sure that if that person were injured on employed the government would step in and take care of the person well there's nothing in the plan that prohibits the you know payment by a rd party or that says that if the payment is made pursuant to the agreement to carry the insurance that that's somehow excluded from cover to hours of service and cover employment and in terms of fairness open you know workers comp is a substitute for lost wages so you're really penalizing the hurt employee who got hurt on the job can't work by saying well we're going to only give you credit for the hours that are actually contributed but we're requiring our employers to maintain this insurance and you get paid by a rd party but we don't count those hours even though that's a substitute you would have been had you not been heard you would have been working you would have been accruing hours so the hurt loyal employee winds up you know really getting hurt from a fairness and point i think it just makes perfect sense to count these hours are you suggesting they count for the employee is covered by this collective bargaining agreement isn't that kind of a would employ it would apply to the category of any worker who's been heard on the job or in this case an industry plan that deals with all right so there's five hundred people working in a plant there's a terrible accident all five hundred  them are injured on january th they all get disability insurance and all the hours for the rest of the year they would have worked the meter is running so to speak against the pension plan for the remainder of should do in exchange for their labor right but you want you want the company and the pool the plan which is the collection of companies that pay into the plant they're going to be getting no labor but they're going to be footing the bill ready every step of the way while these folks are insurance plan so i don't see how the planet would be hurt the plan the plan wouldn't be heard and you know then everybody would be getting what they're supposed to get whether they were heard with the plan b heard because the unemployed or disabled that that makes sense from a fairness standpoint because mr hanson didn't get hurt you know through a fall of zoning off a ladder sure he will never work again your team will play as some of those employees and not other employees who are covered under the same exactly and that may not be what the parties intended because they created these definitions in the plan but i do believe they're stuck with this language which does change the eligibility that is the exact point of  appeal i just want to just quick i'm not sure i follow that but as i understood judge cross question in show correctly from wrong she's asking whether or not the same universe of people are governed by the multi employer pension plan as are covered by the assumption that if it's a that in a typical multiemployer pension plan situation there would be a veritable conjuror reserve cbs out there ready that's sort of the whole point of an n p p is to spread the risk is broadly and deeply as you possibly can well my eye but you know a lot more about risk than i do i should have believed that's not correct and mr could have a comment on it my impression is there's one collective bargaining agreement that signed address the double counting issue which is also on your mind clearly me miss knitter admitted that the vacation pay is a fringe benefit and that if you read the pony's brief they cite the section the collective bargaining agreement on fringe benefits and referred to the cation as a firm's benefit based on one dollar for will work so if that's true there's no double  if this is a fringe benefit that is being paid on top of wages then mr hanson deserves credit for the the pay and it doesn't violate the double pay just like if you are an employee and you're getting paid you know an hourly wage and you're also getting paid vacation time those hours camp but the other point i just wanted to make briefly is i don't see any reso rules and regulations so i believe that provision applies here and that's why the trustees should have not just stuck to their rigid definitions and they keep coming back well employers