question in this case is who will determine whether the funds forty five contributing employers have made mistakes in self reporting their monthly contribution reports required by applicable collective with nice not the new york state nurses association should the funds independent auditor determine whether an employer is made made mistakes in its contribution reports by reviewing payroll records for all of the nyack hospital agreed to allow one to agreed to be bound by the funds trust agreement or should a contributing employer self audit its contribution reports when the employer decides which employees are in the classifications the order will be allowed to review as the court below mistakenly decided the funds trust agreement authorizes an independent certified public accountant to order  payroll or wage records of any employer in connection with employer contributions and reports there is a connection between the payroll records of all employees and employer contribution  you at this point for minute is there any reasonable this limitation that we should read in to the authority to audit that is set out in the contractual documents if i as i understand your position it's only so long as there's no evidence of bad faith the trustees can audit whoever they want but i have some difficulty understanding why it could possibly be relevant to determining whether correct contribution amounts h that there is a standard there is a list of everyone who's a registered nurse and there isn't one is a generator but the way payroll or it's work is do you that list with the list that's been supplied by the hospital of the people the hospital believes is in the bargaining unit so that at risk if it's true it's true though retic that the collective bargaining agreement co primarily registered nurses the collective bargaining agreement covers all employees who are or who have the permit to work as a registered nurse and any employee who works in a position for which a registered nurse is required that's what the collective bargaining agreement says but don't fund has no way of knowing whether the hospital has accurately classify people as registered nurses that's the reason why you need to look at the entire payroll all the payroll registers to see if there are people whose pay rates indicate they if they might be included in the bargaining unit and that's the purpose of the payment more otherwise norco check there's no he was for the hospital basically to and who is not classified as a registered nurse contribution was not made by the employer in perspective that employee employer he later notwithstanding having not receive it's a retirement plan where everybody has a fixed amount of money they're going to get based on the hours they work all of these employees who are in the fund are eligible for benefits the funding source contributions for the entire group so there won't be many people in the group yet never going to benefit yes that's my question is if somebody is eligible but a contribution is not made in respect of that person is the fund still responsible for paying out that the benefits of the employee nonetheless in roles that is a question that i don't have the answer to but the question i do have the answer to your honor is that the collective bargaining agreement is clear that contributions are owed for people in the bargaining unit whether or not they  and i ask you mr wang to go back to a point you alluded to a little bit ago there is a definition in the collective bargaining agreement that i don't quite understand and it's this description of the bargaining unit as including our ends or people in positions for which you need to be an r n i don't understand how that's not a via a venn diagram where one category is wholly subsumed within the other how can you have a job at last clause of positions for which you need to be an r n that doesn't already fall into the class of people who are our ends is there some sort of higher classification of  somebody who who's more qualified than an r n but is not an r n can you explain what that clause means to me and i'm confused by it your hope i will do my best there is nothing in the staffing shortage where they've assigned somebody to a position right who even though they do or not don't have the formal qualifications they've been assigned to work in that position and the bargaining in the collective bargaining agreement says they're covered even if they don't have the required certification that's my understanding of how it would come up ok let me ask one last question before you sit down which is would you agree that we're on abuse of discretion review we're looking at the district court order or failure to order an audit a specific performance of the contract it seems to me of proof on the fund to prove that the fund would be likely to achieve its goals in the audit or central states require indeed employer rich present evidence that to fund  you your honor may please the court the district court correctly held that the record review sought by the on exceeded any reasonable scope the fund wanted to examine pretty much every financial document that the hospital possesses and scrutinize every salary from c e o to janitor without regard to whether or not these were individuals who could be participants in the fund the district court narrowed that scope to our ends only which recognizes that the universe that might even be marginally relevant to the funds task could expand no further than those records now we ask you to narrow that a little bit further still to the records of bargaining unit employees and that includes the entire universe of eligible participants which are full and part time represented registered nurses and the temporary and pretty i'm registered nurse employees who proper classification might affect the contribution obligation anything more we believe we overstep the limitations imposed by isn't that the point of an audit to make sure you're telling the truth so why should they take it at face value if the question is do we have everybody who's in the bargaining unit you say ok i'll tell you everybody's who's in the bargaining unit well let's say you lie isn't the point of an audit to check you to make sure you're not lying your honor there are checks upon that particular issue which is the union has the list of who's in the bargaining unit we have a list who's in bargain your we provide every month to the fund who we've made contributions on behalf of and we provide them on the annual basis the people who have opted out so they have all of those records to check this it but mr when mr pope if you were were lying if the trustees are the rich trustee is required to rely upon the good faith of the employer in the union i mean isn't that exactly a concern the both the the supreme court and the th circuit which this court cited favorably in the in the virtex case expressed that the trustees have an interdependent obligation to make sure that they are sending out s p g's to the right people that shouldn't be able to be bargained away by the union and the employer well your honor that's that's true if people outside the bargain you know could potentially be relevant and generally be participants that can't be the case here by definition to be a participant in this funding to be a participant in the program you must be a bargain unit there were a hospital who lied and you held back a dozen ahrens isn't the point of the audit to see whether you actually turned it over because it seems to be no answer now for example you could say well you know now before district court in the district court ordered me to turn it over and you know if i didn't turn it over it would be contempt and why would i do that but presumably one would hope that most audits don't end in litigation with court orders right now that is that is the aspiration you are beyond the point of the audit to confirm that you're telling the truth yes and no your honor it is to confirm that we're telling the truth with regard to the universe of people who can be right  right so who's to say you haven't lied about who could be a participant but we don't define who can become a participant your honor is defined in the collective bargaining agreements defined in the trust agreement and it has to be a member of the bargain unit of niceness now that means that nice now has that list we have that list they have a check on us we can't live with what if you left out ten people who are eligible for the bargaining unit and the union doesn't know about it isn't the point of the audit to figure out whether you're telling the truth your honor is not the  trusts obligation to police the bargaining unit when you don't when the union in the trust have both agreed that the bargaining unit are the only people who can be eligible to participate in this loan mr pope let me ask you a hypothetical question look let's assume that the trustees ex ante at the very beginning decide that the best way to preserve the financial integrity of the fund and to make sure that the eligible employees are getting the relevant documents the reforms of their rights is to have an audit of all of the employees precisely to make sure judg they had neither the union nor the employer is misreporting they have an independent obligation they decide that it's in the funds interest to do we audit of all of the employees and they sit down with the employer and they say that the employer and the employer agree and they document that is there anything in a risk paid and let's assume further that they discuss the issues of confidentiality and the trustees agree that they're not going to give this information to the union or anything in a receipt that would prohibit the trustees management and at your age if that's right then isn't our of legation just chip in the judge's obligation surely construe the language of the trust agreement and see whether that is precisely the it what if it increases trustees powers or hell or defines them in a way that you don't like it increases or defines in a way that we don't like then you have to measure it under the various yardsticks that the court put forth princeton's it must prudent actions furthering the legitimate interest of the funds it must not be in further into union objectives and it must not be something that's it's designed to simply expand plan coverage scope of the contribution obligation do they contribute in any way toward the presumption that the employer that the hospitals records are going to be generally accurate because there are other kind of watchdogs in place the other unions the employees know their participation rights contribution amounts are fixed in another way i believe they do a runner and i would add one other watchdogs to speak on top of that which is we're talking about assume that a registered nurse is that that the that the employer and the union both make a mistake or they decide as sometimes happens that they want to compromise the rights of a member and they don't inform that registered nurse of his or her rights the register durst's figures out  that he or she is eligible and wants to enroll is that person going to be able to enroll even though a contribution has not been made you know i honestly don't know how the fund would treat done based on what i've seen of the funds documentation they would not allow personal rule for whom a contribution is not made but that's really their decision i think that the issue there would become a very messy situation of whether or not they could compel their participation somehow and if they can if they were able to get an order that compel their participation then the employer would obviously become obviated for a contribution impact on their trade so let's that let's assume that the employer then becomes you know doesn't have the money to satisfy its obligations doesn't the union doesn't the plan have an interest in financial integrity in making sure that everybody who is potentially eligible they receive contributions for and that they don't have to then after the facts bring a collection action well i mean yes and yes and no they have they have an interest in seeing that the contributions are made for the people who are wrecking who are reported to them is participating in this fund as as i mentioned kind of in passing not everybody is has a right or not everybody has and has to participate in front of your full time employee you can choose to opt out and you get paid an incentive by the employer for that you get paid and that's a negotiated incentive twelve thousand five hundred dollars for not participating in  in the health care benefit so there are a lot of moving parts there your honor about it and that's not two thousand five hundred dollars the fungus that's two thousand five hundred dollars that the individual gets so the fund can't count on whether or not somebody is going to be a part of this or not and whether or not how that's going to happen to their financial integrity their financial integrity issue is that they receive the contributions from people who are reported to them as participating in a particular month so we're in contribution the monthly contribution for each one of those and that's what their interest is because they have those people down on their books those are people they have to cover if somebody is as you say when found out that they were left out at some point in the past there w i don't think there would be any obligation on the fund for them not having participated in the past they would be entitled to participate in the future that's that's my point they're titles of projects debate in the future but yet and yet the last year for an employee who participates this year who plays can change from year to you know whether or not you choose to participate and you don't have to choose to opt in or out on the st day of employment and be stuck with that throughout the term of your employment so it can change from year to year and just like any other type of health care you know we pay the price we're paying to them essentially a premium i believe they even use i think they go out and purchase in the market health insurance in order to cover their own obligations so you know the premiums are being covered for the time in which the person is participating and that's really what the fund is about and that's what our contribution obligation is about is to ensure that they receive the money that will allow them to pay the premiums for people who are  i asked one more question i pollock eyes and we're keeping you be on your time but i'd like to ask you the same question i asked opposing counsel as to the meaning of the term in the collective bargaining agreement i understand how it covers  but i don't understand what that additional term is that says and i can't remember the exact language which is every person employed in a position which requires a registered professional nurse i imagine that it's not supposed to be superfluous language but i guess i'm not familiar enough with the situation understand so again if you could maybe do your best to explain to me what that term is and let me just skip ahead obviously the one of the reasons i want to know that is if by the text of the c b s there's a category of person who may be covered by the collective bargaining agreement who is not in fact an n then wouldn't the district court's ruling be erroneous whether an abuse of discretion whatever if it limited disclosures in the audi it and the audit only are ends so i don't know if you could shed any light on what does that term in the c being mean your honor i believe what it means and i don't think it means that there is such a thing as a position where you do not have a registered nurse permit and you're working were that requires a registered nurse permit i believe that it refers to and if you look at the list of exemptions you'll see that there are some exemptions in that list that tell you the types of jobs that are not strictly speaking what you might describe a no way discount our nurses and hospital we absolutely treasure but the there are none there are nontraditional jobs which actually require an r and degree you know they're not your traditional nursing home floor and relist exemptions for some of those and some of those are are included but they are a lot is that just to go back how does that add anything to the definition in the c b a that already as we cover all registered nurses the only way i can imagine that add something your honor and mr warren is right that there's not a thing on the record in this there is there is a category known as nurse practitioners which is  a higher level of training that some registered nurses receive put them almost to doctors but they're not quite to the point where their license is talking as they do many more responsibilities i would think that group falls within that to the extent they're not otherwise exam to be agreement i can't think of what else that covers except that it may be a way for the union to negotiate with the employer about positions that they think require a registered nurse and it even though you know let me just and that and i understand it's not the record so i know we're a little bit hypothetical here but if i could just pursue that just one more question on this and i'll let it go which is if we were to see him that that's correct that say that's aimed at capturing a level of nurses with additional training those people who fall into that additional basket have been covered by the disclosures ordered by the district court that is all reds nurses yes your honor the end they would be covered by a standard that i people as well who fall into this rd kind of anomalous category the judge nineteen he has been discussing with you with a every seemed receiver of annual communication from the fund asking whether they want to opt in or opt out so they're kind of in the conversation is that is that correct or is that a misunderstanding i honestly can tell your honor there's not any anything in the record about how communications are conducted between fun and would because we have in the open season just like you do in the federal government just like my firm going to is we have the open season fall where you make your decisions about health care i'm sure that there is some mention in that you know as to what is no fun people might need to do but i can't imagine that we're deeply involved in it ok but no thank you for your arguments we kept you well past your time now we'll he soir hospital owes contributions for all full time employees covered by the collective bargain if that's true whether those people who roll or not enroll they only cease to open obligation if the contribution obligations by paying for the people we reported that is untrue the hospital fulfills its contribution obligations by paying for all people for whom it's obligated to contribute and turning to the the issue about distinguishing central states there were two plaintiffs in the central state's case the central state's pension fund and the central state's health and welfare fund so the court's discussion about why the funds cannot rely on participants apply to both funds not just pension you know about about the language in central states where the justice marshall pointed out that there was a very specific grant of trustee power to demand an exam an employer records for its employees and there was a debate about whether that capital employee you know exactly that meant but still there was an affirmative disclosure obligation in central states that i didn't see in the trust in other documents that pertain to your client and i'm missing something the article reporting up to gauge and then the nd sentence says the trustees may have such times and places as may be appropriate have an audit made by independent certified public accountants of the payroll and wage records of any employer in connection with the contract employee contributions now there's a critical difference between this language and central states and it's favorable to the funds because the defined term capital he employee eight which is a defined term in the trust agreement also this trust agreement nowhere appears in the section of the trust agreement there is a defined term employee contributions that is a separate defined term refers to contributions that are employees make either directly or through payroll deductions but has nothing to do with the states because no there is no issue in the record there is nothing in the record that discusses or didn't cut employee contributions so unlike the trust agreement in central states where the district court found its unambiguous lee requires all employee records to be audited the six circuit held in only ambiguously is limited to capital he employees in the supreme court said we're going to construe the agreement the way the trustees of construed it because they have the power to construe the agreement here there is no limit on the audit authority to employees in the trust agreement says that it applies to all wages all understanding whether you think that the scope of having a legitimate purpose for an auditor for a week a request that the trustees make is kind of coextensive with these are concepts that have been thrown around and i would love you to explain their boundaries to me as i understand the central state's decision the court looked at thirty three  purposes there were two legitimate purposes presented in central states st to identify all d covered employee is who are eligible to participate in the fund and nd to collect identify contributions that are owed to the front those are the identical purposes at the trustees had here is undisputed evidence of the record that those with the purposes that they had those are the purposes that trustees that it was not made to further the legitimate gentleman purposes of the fund while i could imagine circumstances were not mine occur here what the ny act hospital is basically saying because you're going to find registered nurses in the payroll registries of the hospital that makes it illegitimate purpose all that does is reverse the burden of proof but let me ask if there were only thirty registered nurses working in this in a medical center and you had the same documents in place and the there were ten thousand workers overall but only only ten registered nurses would you still be taking the position that not it was necessary in order to determine whether the correct amount of contributions would have been made no it registered here says ten registered thirty net registered nurses say and ten thousand employees stakes can be intentional hiding of employees can occur employees the supreme court recognize that to tearing sample of the ten thousand people rather than looking at all of them well if i left here today isn't the district court entitled and ordering that an audit occur to take into consideration some of the facts such as mistakes at the margin no one contests that mistakes can be made nonetheless you know ordering an audit you know and ordering a specific performance has some element of discretion committed to the district court say you employer did not believe in limits but we're going to do it for you the court does have discretion in putting into place confidentiality provisions that are requested by so for instance one of the cases that are orders could check that those people were actually who they could cross checked the records of all the employees against the payroll registered yet they protected confidentiality so the district court has equitable discretion to protect confidentiality interests not by limiting the scope of the audit but by looking at confidentiality requirements to protect be employers interests ok mr mr loued that the just a record earned by not construing the language of the trust agreement and conflated the contractual rights of the trustee smith with unambiguous it there are no limits on the payroll in wage records that can be reviewed and the trust agreement remember this is a trust agreement that applies to all forty five contributing employers so the fact that i say will look at our collective bargaining agreement it doesn't fit well with that that's not how you construe a trust agreement that applies to all of the employers and there is no evidence of any other collective bargaining agreement in the