please the court my name is richard stoker i represent the appellant's trustees of the iron workers local seventeen pension fund and i'd like to reserve four minutes for rebuttal very well the trustees are here to ask this court to reverse the judgment of the district court and her judgment in favor of the trustees for the reason that the arbitrator made the iranians legal conclusion that the trustees lacked jurisdiction or authority to assess withdraw liability the case arises from work performed by stevens at the us still mill in the rain ohio after stevens had terminated its collective bargaining agreement with local seventeen the facts found by the arbitrator and are the facts found by the trustees and confirmed by the arbitrator established that the work was performed at the mill and met the statutory requirements for withdrawal liability it was work in the jurisdiction of the collective bargaining agreement of local seventeen and it was stevens that it was performing the same work at the same plant that it had performed while it was a party to the collective bargaining agreement but was no longer paying contributions because it had withdrawn from the from the collective bargaining agreement these fact undisputed and the arbitrator found that none of them were wrong these undisputed facts justified a judgment in favor of the trustees on the ground that all the elements of withdrawal liability are met arbitrator found in article one be the collective bargaining agreement that rigging work the type of work at issue here was work the belong to the ironworkers the arbitrator found that stevens while a party to the which they perform the post terminations work in two thousand and thirteen that's the subject of this case but what about the reality that when the new work was done there was a protest by the union that it should be done by iron workers not no workers standard that the congress enacted for the imposition of withdrawal liability tests whether the work was in the club to burke in the jurisdiction of the collective bargaining agreement and of the type or which contributions were previously acquired so what happens in the future the post germination work can be performed by anyone it's irrelevant who performs it it's irrelevant if it's performed by non union members it's relevant if it's performed by members of the trade the typical withdrawal  is irrelevant because whoever got that work is not is not the test for withdraw liability why am i allowed to assume given that history that this is work that under mill worker cbs mill workers usually do and the withdrawal liability is for something aren't workers it done and i mean i read i read the language to talk about two points geography northern ohio and type of work the type of work being ironwork and i realize there's some overlap but the reality is don't one sought a referee at the end of the day this was allowed to be done by mill workers and it seems to me to fail of the type of work requirement you have to have both not either a war right in or the year withdrawal liability right i mean will tell me why i'm wrong i guess because the evidence here shows that this type of work during the collective birdie agreement was assigned to ironworkers it was rigging work was referred to in the clip the burden or agreement  long time workers and on several of these jobs at the similar types of plants including this very same plant what was previously required students assigned to me and what's what's unfair to stevens on this is if you had you'd protested and sought a referee and the referee had said well you know this really is ironwork stevens at that point would have the right to sub contract for it from my own workers who were already paying into the fund would seems unfair and that would have been good right that would because this is the whole point we want to make sure people are contrary to the fun and not getting a free ride what happens to stevens though that seems like a bait and switch is no one and six the referee no one protest so they have the right to assume they're not incurring this liability i mean had they known about this wrist they would have sub contra me clearly that was their mode of operation this is a sub contract out from someone who's already paying into the fund so that just seems unfair to me i mean but tell me why i'm missing it evens was all as a bearer of this risk the evidence in the record is that they withdrew from the collective bargaining agreement because they were or they terminated it because they were fearful of has to be done barren workers they would of course contradict sub contracted out to iron workers who are already paying into the fund and there would be no risk of liability well the funk i i or the fund could not have made a protest i don't know but whoever the union was but i'm but you get my point isn't that the standard but isn't it true that had that happened they would have had no risk here if there is a contract a done workers that's true they would have had no rest but that was a decision they decided to take a risk bargaining agreement between local seventeen and stevens the national maintenance agreement was with the international union the international union shows not to take any action but the funds not bound by that  is not bound by the provisions of the arbitration provision for several reasons first of all what how do the work is ultimately assigned to for purposes of withdrawal liability is irrelevant because that's not the test congress  number two if congress had intended for funds to be bound by contractual agreements procedures congress would have put that into the withdraw liability statute they declined to do so in this court shouldn't be incorporated into a contractual grievance procedure that congress did not make part of the statute further the purpose of the enemy is only to resolve that particular work aside the very provisions of the enemy say no action for damages can be brought on any decision by the umpire under the statute or under this agreement so it would have been a waste of time for the for the fund even if it had the power to do so which it didn't it would have been a waste of time for the fun to  attempt to invoke those procedures that would have had a worthless decision to set that the purpose of the enemy was to have a very streamlined process the purpose of which not worthless from the perspective of protecting our workers and making sure i and workers do our w and workers are supposed to do that when the been worthless while the funds interests are different than the interests of the union as the supreme court held in snyder moving versus robins the union has an obligation to its members know pat already having had many iron workers assigned to the parts or through subcontractors so that the union made its decision based on factors totally apart from what the fund producers have to determine the fund trustees  consider the fact that they have a fiduciary obligation to the pensioners to to assess withdrawal liability and to bring this action and all the elements of the statute it didn't matter it's only if the focus the focus of the arbitrator and the focus of the district court was on how this work was assigned but that's irrelevant under the statutory it is relevant for determining jurisdiction unless we accept your geographic geography on say let's look at specifically how it was assigned and it was assigned ironworkers or you could say more generally it was assigned pursuant to an enemy and happened at that time to be signed armor iron workers but now is being assigned person to the may and it's going to the mill workers so that's exactly the way it was done in the past right so it's you know it just depends on how specifically you look at what was done in the past well all the evidence in the past is that on these projects is the erb a traitor himself found it is a district court found that stevens had assigned ironworkers suited to the enema not conflicting with the enemy which was incorporated into the agreement  pursuant to the local seventeen collective bargaining agreement in twenty thirteen after stevens has terminated you're not really answering my question i'm sorry if you're on a perhaps and you're talking about the way it was previously done right right right how what was previously required you could say previously it was done by the arm workers understand literally true but legally you could say previously it was done pursuant to a contract which sometimes assigned it to iron workers and sometimes  it's being assigned just as it was in the past to someone who is one of those two choices under the enemy when the pair were doing it the same so it's either the same or different depending on how how you define what it is you're looking at in the past i see my time is expired i mean well police would say i mean in the past it was assigned in part pursuant to the rigging agreement but that agreement didn't take the way of the work from the iron workers it simply provided either the work belong to the iron workers belong to a composite crew and our position is based on the statutory language that what's happens in the future is divorced from the statutory inquiry that congress imposed by the requirement that the court is supposed to look at the trustees the arbitrator and supposed to look at what was previous that but that precludes us from looking at this assignment provision in the enemy i believe so your honor because the maze says that assignment provision is how we determine jurisdiction those are all agreements that happened after term after stevens terminated the contract so whatever happens in the future the only question is was that work that was previously  was with it was within the i workers jurisdiction and was work on which stevens was previously required to pay contribution issue arbitrator sans an arbitrator with more than four thousand withdrawal and labor and withdrawal of liability disputes under his belt correctly found that stevens proved by a preponderance of the evidence that the trustees withdraw withdraw liability assessment was both on reasonable and clearly erroneous that was the issue he was charged to decide under fourteen zero one a three a and he found that because the funding liability for work which is not in the i'm workers jurisdiction and was not of the type for which contributions to the phone were ever required that the form was wrong the trustees were wrong and unreasonable when they assessed liability in this case and that the crux of this discussion really is the withdrawal liability provisions the construction exemption thirteen eighty three b be to that the statutory language is really what we're talking about here in the find is is ignoring the plain language of the statute the statute requires that that withdrawal only occurs if an employer that ceases to have an obligation obligation to contribute under the plan resumes work in the jurisdiction of the c b a of the c b a it says right in the statute are the type to which contributions were previously required so of the type i mean so that could be the way it's assigned to the m and an m a and on terms whether it's given a mill rights or iron workers but you could also just ask yourself what kind of work is this and i'm not really going to get caught up and what label you put on whether someone's a mill right or not i am work of this is a similar type type of work and since we're really focused on withdrawal liability in an underfunded fond that's all that matters and i going to get caught up in so the type can be just described to work and when you agree this is work that you could have no rights doing one day and i'm workers doing another i'd agree that this was work that no rights were doing all during this period of time as well as when i was arm workers right both for sure but was it the type for which contributions were required no it wasn't because that takes you to labels and labels i mean i don't mean to be disparaging of the word labels but i'm just saying that's how it sandra's they do it based upon what were the needs of the job and once it was established that seventy one was no longer a handcuff on anyone they were free to assign it for fish and sea and they testified at the hearing they assigned it for efficiency in this case because the mill rights were working on machinery with work and it doesn't make sense to read the statute that way your honor the reason it doesn't is because it leads to a tortured interpretation where anytime someone picks up a wrench because there's overlapping jurisdiction  fund that's going to try to assess liability can say up you picked up a ranch we have overlapping claims of jurisdiction on the reality of the enemy is that in the reality of this whole area is that the die was cast in this case when the union chose not to seek a referee and re characterized this is something that had to be done by an workers know the die was cast when the job when the work was assigned the work was assigned well let's look at the stat wouldn't it have changed things if they had protested the referee and said i am workers then you then you would have satisfied this i think if they would have taken it to a conclusion and referee said that this was on work or work then i think that that that would have been work within the jurisdiction of the arm workers and it but it wasn't that didn't happen but the point here in this is this is sudden sasson would that have changed the result you said no but now you're saying yes if they had taken it to an umpire and the umpire determined it was arm work or work yes no i'm saying that it may have changed the result because then they would have been doing work within the jurisdiction of the c b i it's not it's not the end of the world concession but i'm just you know i know it would have changed the outcomes that's why i said the die was cast when that happened but what i'm saying is i think that you're right but but there's a this waiver argument isn't really a waiver because i'm not i don't think i use the word waiver for for future or anything remotely no you don't you're i'm talking about in the fines briefs they were give waiver waiver waiver i understood your opposing counsel to suggest and maybe no the thing was that the senate maces been in amman and email through all i mean true i think an enemy jobs yes but the one of the things that was heavily disputed in the case was there was also something called the one nine hundred seventy one rigging agreement and let me let me back this up to the statute because it gives you a clear roadmap on how to do this the statute says that the work has to be resumed in the jurisdiction of the c b i well how do you figure out what that means you have to look to the c p a the c b a of the arm workers specifically defined stress addiction as crap as crap jurisdiction number one roman numeral one of the c p a and it says that it's subject to trade agreements and agreements national in scope the seventy one rigging agreement for a period of time was one of those agreements and it for a period of time defined jurisdiction and tim mccarver used to chairman of the fund was also the head of the arm workers assertive in his november first letter when he was claiming the initial dispute you're doing work in the trade jurisdiction of the iron workers and it  said any side of the seventy one ringing agreement the problem with that is he knew it had already been abrogated he knew that at the time that he scented to that is for colleagues on the fine but he never shared that with them he never shared with them that stevens had assigned this work to union no rights under the enemy that the work stood as a sign none of that was shared with the fine arbitrator stance sat through several days or four days of testimony on this and he got that he understood what was really going on here was this he referred to it as a cat's paw amerie i think it was referred to as a bait and switch earlier today but so that there was no the testimony showed that there was no work ever done within the ironworkers jurisdiction and it's a simple interpretation the statute you have to if it says resumes work in the jurisdiction of the c b a you have to be both within the territory and within the jurisdiction of the union and this work was never there because it was assigned under the enemy initially from from the star to the mill writes so this isn't a waiver argument there was never a claim to jurist there was never work subject to a contribution in the first place it was up to the ironworkers had the ability to challenge that through the process and they did for a while and then they abandon it but the real important point here is it was assigned to mill right so it was never on work or work and and so the statute says was it within the jurisdiction and it also says of the type for which previous contributions were previously required i would suggest that what makes a sensible reading of  it's asking ok right here and now are you doing work that's within the jurisdiction of the c p a and if and it also recognizes the jurisdictions of the c p a can shrink and they can grow and so it also says and wasn't the type for which contributions were previously required because if if an employer is no longer a signatory a c p a can increase its jurisdiction or or close over or shrink it the question is not just are you doing the work within the jurisdiction but was it the type to which contributions were previously required they were never required to give contributions formal right were written were yet under the animate the work is as assigned it stands as a sign from the beginning standard of review arbitrator sans has eminent has had an eminent career reviewing withdraw liability cases we have to review the legal determinations and yes your honor no question about that i think i think interpreted the laws to know but in order to interpret this case you have to look at the plain language of the statute and judge or arbitrator stands in the district court recognized then you have to go through a factual analysis of what happened you have to look at the c b a you have to look at what work was assigned you have to look at what was well as the basis of the funds decision i submitted that subject to a clearly erroneous to standard he looked at some of the testimony that's raised in the briefs but wasn't discussed here about other work performed on that job and he said that it wasn't relevant to the analysis because he found it wasn't part of the two points raised in before the pretty job conference where laborers were drilling holes for rebar the records show that that was assignable work to laborers and it was properly done by laborers there was someone loading the machinery by mill rates to avoid demurrage charges truck for truck sitting around idle that was properly assigned under the enemy there was two situations where stevens found out a bit of a couple of no rights had done work on the job day in the one the day they were  in what are the facts that he found that are subject to clearly erroneous review every time i hear you talk about a fact that usually connected to an agreement an agreement usually is in writing and we can construe the agreement to say what it says or doesn't say it doesn't say i think one of the facts was what was the fines basis for their for determining to assess withdraw liability and it was based soley on the job conference so that all this other work raised in the briefs is irrelevant i think that was a clearly erroneous standard determination because he weighed the evidence and said you know what that's not what they base their decision on he looked at them a letter from the fine back to stevens actually said hey by the way you said that the the alleged abrogation of the seventy one rigging agreement gives you gets you off the hook well it still applies here in northeast ohio despite their testimony at hearing that they knew it no longer apply so he recognized that it was based on the assessments based upon the assignments of work in rights came in and said hey wait a minute i was at the meeting with this was abrogated and it was abrogated for a lot of good reasons to avoid to avoid the situation we were handcuffed and we can't do work in an efficient way no longer applies and tim mccarthy the chairman of the foreign testified when he was in the hearing on cross examination yeah i was aware at the time that i presented this it would have been abrogated if they still adhere to it so that was wrong and that was i would say that would be something to be subject to a clearly erroneous determination i would subcontractor had poured put it in they had a concrete truck coming so they threw in a three by four foot piece of rebar when stevens found out about it they said look that work is assigned iron workers our workers are to perform and they were actually trying to protect the assignments of the iron worker sobs and as soon as they found out about it they said that's not something you're supposed to be doing i would submit though since they were doing it with a concrete truck coming the enemy envisioned situations where for safety and efficiency and to avoid job delays you can do an assignment to avoid those problems and it was still properly assigned but it's really not relevant because they they never stevens it was done without their knowledge or direction as was some work done on a handrail  engraving for the charge discharge machine that was the subject some discussion in the breeze none of these were none of these were the subject or basis of the funds assessments they were mentioned in the briefs but those were all done as soon as stevens found out that any work was being done they said that's not no right work that work was assigned ironworkers workers need to do it there was one situation on a sunday there was some testimony on the record it was raised in the brief where stevens had there was a some hydraulic piping on a sunday high drug piping no rights for flushing the play ping it was described in the record by harry mertz at pages two eighty one to two ninety two of the record that he there was a problem because the hydraulic flushing was finished before anybody thought it was going to get done they were in an outage they had u s steel workers coming in to work on this machinery and they needed to put at the end it was unsafe to work on until they put this plate over this checker plate cover so that they could stand on it not get injured and so that they could continue the work so he said it was a sunday i had us steel wanting to get the plant back operational and so i had i had no right to put a check or plate over the piping because it was a rat's nest i did that for safety reasons for efficiency and to avoid delays in the job the enemy may the very first page recognises safety efficiency and avoiding delays in the work as proper reasons to have someone do something so i would also submit that while arbitrator stands clearly found that that wasn't figuring all at ourselves i don't think you need to it was dry it was looked at it was reviewed by arbitrator sands he heard testimony on a huge is what he said was that i find that the basis of the funds assessment was was  solely the assignments to most of the rigging work so i'd say that's a clear that was a finding of fact that subject a clearly erroneous standard of review and that you need not go back through because he's already he's already heard testimony on and didn't feel that triggered withdrawal liability the close in closing i'd just like to say i got a question that he did he didn't look at it because he said it wasn't properly before them he said it wasn't properly before it was never raised before or discussed in detail at least in just to rely on the fact that it wasn't raised before i'm i'm not the arbitrator didn't make the argument that you're making your say well he must have because he made the final conclusion right i'm saying well why why can't we assume that instead he relied on the fact that this was not something that was part of the original claim that was brought by the phone when we know it wasn't part of the claim brought by the bankers it was not it was done in november when when the fund is a liability but doesn't know i got the impression that that was his fallacious basis for not reaching out rather than the argument that you're making well such that maybe remained might be appropriate i don't i don't know that's my question i'm not saying that c i mean i don't know that he's not really answering i understood weston i understand what you're saying your honor i would say remained is not appropriate because it would be there was already testimony given credibility of the witnesses who talked about this was waived and it was determined that first of all it had been weighed if the reason that the arbitrator didn't address it is that is that he didn't think it was properly be for well i think he thought it was it was not part of what the funds basis of their decision was and and i would say that if if he would made that finding of fact that he had the discretion to do that after hearing the testimony of the various witnesses to see what ze i just i just want to get absolutely judge clay i wanted to say was that the purposes of the n p a are really what's at issue here the the the the one goal that it was designed for was to protect the pension funds the pension fund was protected here the arm workers received over nine thousand hours of contributions in this case and the work that stevens assigned to mow rights was properly assigned to no rights and went to miller its pension fund this is not a case where stevens was bringing in nonunion employees to do  nworker work that did not happen i submit that the decisions of the arbitrator and the district court were correct and that this court should have from thank you very much honor we agreed that every man might be appropriate in this case to consider the evidence that was presented to the arbitrator relating to work and work or work performed by stevens employees that was not available to the trustees at the time they made their assessment of this evidence where it was admitted that stevens employees perform and work or work was discovered during the course of prayer patrician discovery work accord occurred prior to the pre conference conference where stevens indicated how it was assigning the work and the union was never the union unfun were never never had access to that information until the arbitration in concrete pipe the court held that the arbitrator may he evidence during his review the law is that the assessment may be confirmed on any basement basis apparent in the record the evidence was permitted to the it was presented to the arbitrator he made no mention of it and the district court concluded that the district court as well would not make any judgment as to the relevance or credibility of that information simply because it was not before the arbiter before the trustees at the time they made the assessment in my initial remarks i didn't mean to suggest that the enemy wasn't in effect prior to stephen's determination of the collective bargaining agreement but my point was that the agreements that stevens enters into as to how it's going to do work in the future after it terminates its agreement with local seventeen simply aren't relevant based on our view of the congressional tossed the arbitrator held that because the work was assigned to no rights it was no rights work district court recognize the circularity of this argument  to allow an employer to control what work triggers law withdrawal liability simply based on assignment would allow all employers to basically avoid withdrawal liability our position and schneider vs robins in our brief but also mention briefly that we made an argument that the arbitrator exceeded his authority as did the district court in finding that there was an exception for  congress has already considered that issue in determining that certain work certain withdraw liability less than fifty thousand dollars may be de minimus it's undisputed that the work in issue was done by stevens employees stephens control the jobsite stevens management approve the time sheets paying the employees to do their own work or work and stevens project manager harry murdoch admitted that he was wrong and that he had that the stevens mill right should not have performed the iron work or work it's been the rule in the circuit that defense is based on ignorance and lack of authorisation do not apply to fund claims under the enemy put this case in context someone is going to pay stevens position is that other employers or taxpayers should fund the pensions of stephen's former employees congress through anatman of the withdrawal liability statute chose withdrawing employers as the entities who are required to fund the pensions of their employees and former employees if the court as the district court creates judicial exceptions to statutory liability the cost of funding pensions will fall on other employers but that's the nature of the exception that congress created is construction industry that you don't have to pay if you get out of the business if you get the business for five years correct once you resume work in the jurisdiction within that i believe the criticism that you're making is a criticism that would apply even to situations where they validly complied with the statute you're still got a company that's getting out of the business and not having to pay for for the previous but here are talking about money for her previously accumulated that they're behind right that's what they really issue is here we're not concerned about how much these particular people are getting paid so much as whether this triggers stevens requirement that they contribute to the deficit prior to when they left is that correct that's correct your honor but the point is that's going to happen whenever stevens complies with the statute it's going to get out of having to pay for part of that short fall but if you work in the jurisdiction within five years writing subject to the exceptions where you are about the exceptions but you safe we it doesn't make sense to rely on a policy of full funding when statute is creating a section to full funding base i understand your honor this is this even the congress came up with is the name they came up with you know i mean or maybe it doesn't make sense but we just have to follow it the way it's written by just talking a little bit at the idea that we have to look at the at the some sort of perceived fallacy in the very fact that congress has created this exception we've just got to buy this exception the way they created it your other it makes sense or not right