morning your honors my name is daniel barnes i represent the appellant i'm from the issue in this case is whether by signing the jobsite agreement appellant grammar c agreed to be bound by written by the respondent union's collective bargaining agreement or c b a including the mandatory arbitration provision in the c b s doesn't doesn't that as you just say the chance they clearly indicate that you agreed to and i quote abide by all terms and conditions of employment for the c p a your honor it does say that but i think you're taking it a little bit out of context i and pension funds for various fringe benefit plans the subset that's your honor what the goal what the what the j s a does is it picks certain clause that certain terms and conditions of the c b a and incorporates those into the j i say these are sophisticated parties your honor particularly the union and the welfare fund if they had wanted full incorporation they could have just simply said the j the collective bargaining agreement and all its terms and conditions are hereby incorporated by reference it's a very simple sentence that's all they had to do they didn't do that have you i mean it seems to me that what about this the wrong way it seems to me you've got a demand for withdrawal liability from the fund right that's correct and then you came running into federal court to get a declaratory judgment against the fund and the union right correct to say that we weren't we did not have withdraw liability but ordinarily under the m p p a there would be an arbitration for an employer who's challenging withdrawal liability right but our position was that the end p p a did not apply because the c p a did not apply and went away so you think that parties can contract out of being an employer under the m p p a will just although we're an employer although we're making contributions to the fund we'll have an agreement among ourselves that that doesn't count you think you can do that i think we can your honor and we did and these j s a is are not uncommon in this industry well but you made contributions to the fund right right and so you were an employer at a time right your honor but the g s a explicitly says in its final sentence the amount of the card payment should be measured by the hours of work performed by the owner operator and subcontractors employee and then finally this agree this agreement is effective as of the date above set forth and shall remain in full for its full force affective and so such until such time as the job described is really that we're not liable under the because we're no longer in the business right isn't that really your argument that's a defense at an arbitration it's not saying you're not an employer you're on a right i think you're putting  the cart before the horse you have to get to the arbitration first and that's the sole issue that was decided before the district court of the m p p a provides for arbitration right it doesn't it doesn't matter whether you contract it or whether it's in the p a requires arbitration for an employer who's challenging withdraw liability right so why isn't that where you ought to be first and then if it turns out that you have withdrawal liability then can try to go against the union to cover the costs that you're stuck with your honor but again it goes back to what i said a moment ago which is we're putting the cart before the horse which is there has to in order to be subject to the  honor because the j s a doesn't make us one so if we if we were to agree with you that the district court improperly dismissed your claims against the fund given that the fund in the union are are separate entities and the fund is not a party to the agreement then why should we just remain to to district court to consider in the first instance whether you are an employer with respect to address that's exactly what we should do your honor that's one of the options this court has and that's that's an option we would advocate for because ultimately your honor this was a motion to dismiss we never considered any of the factual issues that happened there was a on page nine of our brief there's a reference to a sort of an affirmation an affidavit put in by the by the president of grammar c with regard to his communications with the leadership of the union about what the seat what the what the a was going to mean and the court didn't consider that it went solely to the issue of whether or not we incorporated by reference the entirety of the c b a and again if you look on page eight twenty seven of the record that's not what it sets it  subset of c b a provisions that are going to apply to this that to say i'm still confused are you disputing that your client was an employer obligated under the m p a to make payments to the plan to plaintiff pension fund at some point during the life of the period covered by the genocide you disputing that yes you're you're disputing that you were obligated to make payments to the pension plan and now we're not disputing that we were obligated make payments to the pension fund because that's in the g s a but statutorily i don't know we never got to the issue of whether or not the n p a applied because the district court immediately found the arbitration was required we never got to any of those negative sign that your f to understand here your honor there that this was a very small part of a much larger job our clients were called in to do there was a we all know that are familiar with the giant stadium construction project this was the demolition of that  clients had a very small role in that they needed special i services union labor was required our client came in did a very small part of a much larger job it never would have agreed to the c v a and all of this all of this subsequent liability had it known that it was being forced to incorporate by reference the c v a in the j s a it never agreed to that that's agreed to make but they agreed to make contributions to the fun right they did during that during the time they were paying the employees but not after that that's what the j s a sense are there lots of people making contributions to the fund that are not employers your honor the record silent on that that's that's that's not that's not what we're we're here to talk about i make contributions to the fund i'm sorry and i make contributions to the fund i would assume not i soon the fun would probably take your money but no thank you thank you understand the arguments with respect to the claims grammar c's claims against the union but with respect to the fund the and correct me if i'm misunderstanding the district court never addressed whether grammar c is an employer or not because it dismissed the petition on the grounds that grammars he was we just free man for the district court to consider the question in the first place your honor that would be a viable option because it's just a court did not address that issue and i think that is the issue that is the cart before the horse to find out whether or not whether or not they have to go forward with arbitration as i believe once the district court confirms that they are an employer because it did make contributions to the fund and that would be require them to make to submit to arbitration under the rules of mapa as korea shipping in my it's only reason the force in effect until such time as it's destroyed described above that is correct you'll have to make contributions while they're working on this job withdraw liability is a different entity then contributions to the fund they only may have to make contributions triggering withdrawal liability withdrawal liability calculated with the actual number of the liability you know twenty thousand dollars calculated that's based on actual your rates and it's also based on the contributions they've made out of nowhere for six hundred twenty two thousand dollars is that the way this usually works there is no typical way it usually works but that would be initial before the arbitrator too if they wanted to challenge the withdrawal i believe calculations out  something for the arbitrator to determine you know what made up the six hundred twenty two thousand dollars it would be based on their highest contribution rate the hours worked and also the funds deficiency at the time of the door withdraw l the answer the district judge explicitly and this is in the decision on one sixty eight appendix says contrary to both parties contentions the issue in this case is not whether petitioner should be deemed an employer under arrest exposing it to withdraw liability for benefits contributions petitioner would have had made had the parties j s a continue at least that is not the issue yet so it didn't i mean you you you can see that the district court didn't address that question right there on the answer may seem common sense on this that's correct and so what would be the inquiry what's the factual dispute or what would be the faction of the relevant facts to determine whether the where the grammar season was an employer i don't believe there are any facts in dispute i believe grammar c make contributions pursuant to the fucked up argument to the fund and that by definition makes them an employer on their map and that would require them to go to arbitration when you say pursuant to the collective bargaining agreement the collective bargaining agreement determined what the rates would be and what the how you could devise the ultimate payment schedule sixty local five sixty submits that there is no contractual dispute between the union and grammar c it is unequivocal as judge kogan recognize that the j a say explicitly a actually doesn't apply to local five sixty that is an issue for the pension fund my sole issue and the union sole issue is whether or not there is a contract between the two parties and there is there's the j and the second piece of my argument of the unions argument is that joad judge kogan opinion provides for contractual arbitration as opposed to withdraw liability arbitration to which the union is not a proper party i mean if we send it back to judge hogan we find that there is no real factual dispute that grammar c is an employer seems to me it's all premature for you isn't it in other words there could be withdraw liability found or not found and if that's the case then there's no need to drag you into this at all that is the union's position yes that the union does is not privy to anything that happens with the pension fund that is a totally separate as i set forth in my brief that is a totally separate legal entity the notices don't go out to the point their argument is that if they're on the hook for all this withdrawal liability it was based on misrepresentation made by your union and so they're planning to come after you for indemnification or some other equitable remedy and that very well may be their argument but as mr barnes acknowledge these were sophisticated parties if there was some kind of an agreement well first of all if the union if the union if the president of the union had somehow been given the authority by the pension fund and by the board of trustees of the pension fund you would have to first have that authority in order to even enter into that kind of agreement second if there was that kind of agreement it would have had to be reduced to writing because these are sophisticated parties and second there would have to be a question of whether or not the parties could even agree to circumvent the law and the statute so those would have to be questions that would need to be answered before the union is even brought into this case after the ritual liability proceedings are completed the g s a doesn't reference  terms regarding arbitration correct it does not specifically say the word arbitration or arbitration clause no but it does say that that the company agrees to abide by abide by all terms and conditions of employment for its employees so you put you into the situation if there was a disciplinary matter would the individual the greven be entitled to grieve that pursuant to the arbitration procedure i would submit in the union would submit that the union could bring that prevents pursuant to the arbitration procedure on behalf of that employee you think there's any dispute as to whether or not graham or she was an employer under the contract or under i don't think it's the union position to weigh in on that because the union isn't involved in that kind of a determination pension fund is part of the litigation you know i'm i'm i mean the fund itself on the risk of the terminations not weighed in on the pension fund is a part of the litigation the pension fund is the one who issues then the notice and demand for withdrawal liability of the union has no part in any of that that is all the pension funds actuaries and the pension funds board of trustees they handle that entire piece the union is completely separate from that the fund is not a party to use what i mean that is correct that the fund is not the fund does not negotiate with employers for the provision of terms and conditions of employment for employees that's there are couple of different things that are driving this but mostly it's the deficiency in the economic deficiency that the welfare fund has i think that the court or the panel rightly asked about the amount of the liability as compared to the actual amount of money our clients paid to these particular employees and when you understand the minimal amount of of money that was paid to these employees you understand that our clients never would have agreed to the c v a given the small role at the job new york law as we said no briefs and as the court acknowledged requires clear evidence when you incorporate extremes of documents into your actual contract that didn't happen here ok if you read the j s say it's selecting certain provisions at the very least the district court could have found that it was ambiguous and considered the act the affirmation of mr percy l who testified about his  conversations with the union about what was being done here what so what is the inquiry to determine whether or not grammars he was an employer whether among other things whether or not it was making contributions pursuant to the  a or whether or not it was making contributions for to him pursuant to the c v a that it accepted it was make it was a purely contractual matter under this under the j s a what they could have done is taken the actual written language of the c b a actually spelled it out in  in the j s set that they could have said these are the rates of payments these are the the this is the amount of how we're going to count of how we're going to make you calculate what other liabilities you have in they could have done that but it said that that would make them not an employer your honor that's an inquiry for the district court well and i know but i'm trying to figure out what is the district what are you asking to this record to do and is there a dispute about the fact whether or not this was purely a matter of contract under the j s a or or not it was whether or not the c b i was incorporated entirely ok but what's your basis for saying that parties can contract around employer status for purposes of contributions to a pension  this goes to the larger issue of what was going on here this was a very small part of a much larger project our clients would never have agreed to this liability and certainly the affirmations that were no word by the district court bear that out this is a situation where a very long her church risk a there and with that that was borne out of future liability was imposed upon this employer based upon the based upon representations that turned out not to be true but i mean look seems to me your defense is really one for an arbitration on withdrawal liability you're saying i think your brief indicated that your client is no longer in the business in the in that jurisdiction that's correct so that's the reason why you would be subject to all this withdraw liability right but our position is that we were never in the business in that jurisdiction because the g s a said we weren't you just made contributions to the farm without being an employer yes thank