the next case is international union u a w versus goodrich prompt thank you arbitration under a collective bargaining agreement is fundamentally a matter of contract and the parties intentions and so whether a particular dispute as been submitted to arbitration should turn on ordinary benefit yeah so as i understand the claims by the twenty six employees in this case they are seeking benefits solely from the goodrich plant and so i don't think in this particular case there's any confusion about  who from whom they should seek benefits i think the claims here are that they would like to get an extra early retirement benefit reduced the ending of their rights like bargaining agreement with make no they do not want to alter the collective bargaining agreement but here's what they do but but represent one when these letters were submitted took the position the goodrich's obligations under the plan were frozen at the time of the transaction certainly he said that but but is that his determination to makers that the plan of ministers determination ultimately that's the plan administrator is determin answered well why wouldn't he say you should submit this the plan administrator and he'll determine what your benefits he did your honor in that letter and in subsequent letters and then a stranger disagreed with him would use are you telling us a plan benefits were i e that the that the obligations continued after that after the sale of the plan is in two thousand and thirteen that's a that's absolutely right the merits of the of the dispute are not before the court what is before the court is who should decide and under the plan very specifically as incorporated into the c p a the power to determine the amount the manner and the timing of the payment of any benefits to is the plan administrator so this dis individual they make clear that what they are seeking is enhanced early retirement pension benefits twenty six individual claims of pension benefits and if you just follow the district court's analysis look at  article seventeen of the c p a which describes the pension plan makes clear reference to it even has the serial number of the plan it's a clear reference it is unmistakable the document that is being referred to and it works no surprise at all to hold that that is under normal principles of contract interpretation incorporated into the c v a my problem is i really  under the age of fifty five at the time of the sale in two thousand and thirteen right correct they after they've achieved the age of fifty five or they're over the age of fifty five such that under the goodrich plan they would be entitled to early retirement with with a different set off than if they retired before they were fifty five they file a request for a determination of what their benefits are or an indication that they feel that they're entitled to early retirement benefits at having achieved the age of fifty five is that your understanding of what they're saying that's my understanding yes that is it also your understanding that their claim is in essence that that notwithstanding the fact that the did reach the age of fifty five they were no longer their benefits would be identified as early retirees having fifty five my understanding of their claim is that they do not view themselves as having been terminated from employment under the plan rather they are making an argument that some combination of the plan terms or perhaps certainly which in the c b a should mean that notwithstanding the separation from plymouth notwithstanding the fact that their employment terminated before they turn fifty five they should still get the early retirement benefit as if they had continued to work for goodrich after the age of fifty if the contract stated in fact is if their their contract with goodrich was not interrupted by the say that's their view well their view is that the c p a remained in effect that's one thing i think it's a separate matter as to whether their employment terminated at that time  amount based on the form no i don't think that that's an accurate characterization of it i think what they were saying was look as of this day you'll be separated from goodrich and you'll be put on to the triumph plan and you continue to accrue benefits you'll have no net detriment because you'll be you'll be kicked in under the triumph plan as of the day of the new employment you'll have all of your benefits from your time with goodrich but i think it's very important not to get too in the weeds on the merits issues because these return as as we read this c b and with the plan incorporated into it the fundamental question is are they seeking a determination of the amount the manner and the timing of the payment of pension benefits do they are now that may well unitary agreement and the question under these very detailed speedy resolution procedures is clearly vested in the administrator to determine the amount of pension benefits do and in doing that they're going to have to look at this contract we think they're going to have to look very closely at the very detailed early retirement provisions in the incorporated plan my brother is going to say well you also have to look at certain provisions in the c b s that affects the two you have to determine how they should be read together in order to determine the amount of pension benefits these workers are due and perhaps on the bush case a wholesale incorporation we said in the seventh circuit case a number of others six the fifth circuit case as does happen with some frequency there's a lot of cases on it and they generally hold that when you have an incorporated into the agreement that is an explicit exception to a thomas mikel john for the u a w i agree with the initial point that counsel made this is just a simple question of contract interpretation and i actually think at its heart it is a very simple question the question of which dispute resolution mechanism applies turns on first and foremost language of the documents and if it's a dispute over that involves the end interpretation of the pension plan which most pension calculations may be then the pension plan says that that issue is to be resolved according to this administrative i ask you your opponents to to to have them to be able to take the early retirement at fifty five you have to be employed by  the collective bargaining agreement is that what the pension plans us i think the pension plan is ambiguous on that point however i don't think this dispute ironside well let me ask you that i did i was in mean stop let me stop and let me ask a question you can't tell what the question is until you hear so if it's ambiguous i'll take your answer it's ambiguous who has the right to determine the ambiguity of the plan a minister absolutely i'm so bad it's not the issue in this well it is for me right now because i can understand what you what your claim is and so so york i take it that your claim is that these people were not fifty five when the plan was sold somehow continue to be employed by four have some form of status that allows them to continue to accrue benefits under the sand they're not being good rich employees and that therefore when they do reach fifty five they are entitled to early retirement benefits under the plan now that your position no our contention is that the collective bargaining agreement says that the reduction factor for early retirement will be a flat five percent per annum between the ages of fifty five and sixty one and early retirement will be an reduced between ages sixty two and sixty five this turns on the definition of retirement under the collective bargaining agreement which is which  is influenced or which is affected by seniority under the collective bargaining agreement but that this issue turns on the meaning of article seventeen section one one one section one of the collective bargaining re appendix a twenty five and twenty six where the  the mandate for an early retirement benefit is spelled out in the collective bargain if i can if i could go back to your earlier question about the meaning of the pension plan contend that it depends on how that way which is interpreted if the language is interpreted to be inconsistent the language of the player is interpreted to be inconsistent with the language of the collective bargaining agreement then whether you call this a modification or a failure or some other inconsistency or failure to follow a book like the part of the agreement the pension plan would not be in compliance with the mandates of the collective bargaining and that is the that is an issue that is vested with the arbitrator's to determine if the collective bargaining agreement says it's in that sense the disputes under the collective bargaining agreement i'm familiar with ok i'm certain my colleagues are to the pension plan says that disputes under the pension means i don't believe it contains an actual definition of retirement no your honor so the only scription were definition as an article seventeen of the c b d that doesn't sound  right but there is a a retirement process which requires submitting paperwork but i do not believe there is anything in the pension plan that says that one retires says either way whether retirement requires leaving one job or starting another job or being terminated it is true that these individuals continued their employment with triumph when the plant was so but as as as your question pointed out there is nothing in either the pension plan or the collective bargaining agreement or any agreement entered into by the union say that benefits from those at that point the letters that language come from the letter  that the the company wrote back to the union in or to the individual twenty six employees in response to their initial inquiry about their benefits it was a unilateral statement on the part of goodrich yes  wasn't accepted or rather fine anyway by the union workers was challenged by the union the union at that point the union representative expressed an interest in pursuing your grievance to determine whether that interpretation of the pension plan or of the series of transactions is consistent with or inconsistent with the collective bargaining agreement and today we're faced with the question of whether arbitrate under the c b i prevails over any dispute mechanism in the pension plan is that the issue before us i think i would frame it the opposite way and say whether the fact  that the pension plan is incorporated into the collective bargaining agreement displaces the dispute resolution mechanism of the collective bargaining agreement but i know  wrong that you're suggesting that any interpretation of the plan also requires interpretation of the c b a is that is that going too far i think that's going to ok so what is i'm saying that an interpretation of it and say the question is what is the issue being raised by the union if the union is right or the employees if they're raising  it's an issue about a specific provision of the collective bargaining agreement which is what the union has sought to raise here then it's to be resolved under the collective bargaining agreement basic principles of contract interpretation and i know you feel that this is twenty six twenty six documents that were filed by the twenty six employees asked for certain pension benefits associated with their age correct and that's a request for pension benefits that's a claim for pension benefits and are you saying that those are subject to arbitration or subject to the  pension dispute mechanism i'm saying that they're subject to arbitration because a quote the question to be resolved requires interpretation of a particular provision of the collective bargaining agree but i'm looking at article seventeen and i don't see that it defines or further describe as retirement in that case the dispute was how fractional then years of service were to be credited under the pension plan and under the collective bargaining agreement the elective bargaining agreement mandated that all that the employees receive so many credited years of benefits aren't so much so so so many dollars worth of benefits per year of service and the contention was that by interpretating the that language in a certain way in the collective bargaining agreement that the pension plan was inconsistent with the collective bargaining agreement here our contention is that if the employees are not treated as retiring when they submit their retirement papers that the pension plans interpretation is inconsistent with the collective bargaining agreement and if i know i'm over there i just would i would call with this observation that i believe that the questions being asked by the court go very very close if not over the line into an issue of the merits of what these employees are entitled to receive we have raised a question under a specific provision of the collective bargaining agreement there is nothing in the pension plan that gives the pension administrator my brother council said look our claim is under article seventeen early retirement pension full stop it's a c b issue but hold on a second the pension plan has been incorporated by reference into the i so in order to determine what early retirement means in article seventeen i think that whoever decides the merits of this is going to have to go to a one thirty seven to capital h which is a provision of the plan the chandler evidence section of the plan early retirement pension which defines early retirement pension says what it is says it's a it's for employees who had a term a nation of employment after they reached their fifty fifth birthday so there's questions that the opera trader if we decide that arbitration is required it would be if you decided that yes but here's why you shouldn't decide it's for the arbitrator article seventeen also incorporates that plan by reference that plan is very specific in saying that all determinations of the amount the manner the timing of the payment of pension benefits from the plan have to be determined by the administrator so clearly we have twenty six claims for benefits under the plan and clearly that's going to involve some interpretation of this pension plan now i grant you my brother counsel has said well i'm going to raise some issues about the c b a and how they relate to the provisions of the plan but from the beginning of that analysis to the end of that analysis it's going to be a determination of the amount the manner and the timing of the payment of pension benefits from the plant i just want to end briefly with the schweitzer case which was mentioned by case i think when the court looks at it and also some of the other second circuit precedents that were raised in the briefs as the district court recognized those cases are not directly on point because in none of those cases did the court confront the question that is faced with here which is what do you do with an incorporation by reference of a pension plan known corporation by reference issue addressed in twice or where it was addressed by the sixth circuit and then has a bush case and we think that's a persuasive