try thank you your honor and may please the court trustees determination that the local one thirty five c b a's covered mechanics as a classification cannot be sustained under any standard of review this was so primarily for two reasons first any of those documents to contain the word or the classification mechanic because the fund openly admitted that it had no idea that terry cannick at the time that it prepared and entered into the sudden agreement didn't find out that he was a mechanic for nearly a decade after the settlement agreement so we need to remember here right up front why the trustees would determine that the c b s covered mechanics as a classification and the reason is found in the fund rules the fund rules clearly and plainly state that coverage must be by classification and indeed they prohibit coverage through specified individuals and you cannot name a specific individual in a collective bargaining agreement and have that individual now after all this time this fellow was a mechanic and the driver was considered very explicitly in the papers say that is not true because the only mention of mr i want to ask in the c b s is in the pension rate clause and that was specifically put in there so that he could be paid a higher rate under the assumption that he performed  section three o two of the rest makes clear that there needs to provide a detailed basis for the contributions to the pension fund and here again going back to the trustees determination which was not that it covers individual the trustee of the not determined that terri the ascii was covered because his name was in the agreement the trustees determined that terri than ascii was covered only because they say that mechanics were covered as a classification as they must according  it's against the law to make contributions to a pension fund and last the writing contains the detailed basis for contributions and i emphasize again your honor that here the detailed basis according to the trustees must contain the basis for contributions for mechanics as a classification not for terry let me ask you as an individual these c b s state clearly and unequivocally in numerous places that they cover he may have been covered by earlier collective bargaining agreements that those are not in the record and there was a lot that went on over the forty years that he participated in this fund that changed over the course of time in fact the union that he was originally a part of merged with him and we're defending on that basis but second of all when when you say all these years i think that needs to be limited to just the ten years that are at issue before just ten years ten years is not a trivial sure it's it's not about you honor i would emphasize here that i don't understand this mistake by paul well the mistake was it was pretty simple bulk assumed that he had that mr going to ask he was covered by the one poem looking i mean why didn't case and the pension fund knows that better than anyone i don't get it well let seems totally irresponsible behavior by paul well bach was entirely responsible here as i said for you responsible for the first thirty years of  relationship we don't know what the contract said and neither did the district court and you do the trustees that's a fundamental misconception in this case the pension fund wants to rely on some sort of backward evidentiary presumption to say these collective bargaining agreements that x that means none of them for the last thirty years covered can exist and that's with all due respect i think that's absurd as especially given that the national  law by assuming that because players are going i realize i'm really not but it's a it's a company it's not some little individual well you're right and there's a statute that explicitly allows for companies that screw up because it happens all the time and that's the statu of this went down we told him that we would pay his pension of central states did not and that's not in the record and there and put it on the back are going to start a saga separate trust fund so that when all goes bankrupt or distributes assets to creditors as well i think the central states will go bankrupt before paulk well but in any event buck has already told an ascii that they will make good on any pension that he that he gets shafted contract sure but we did we did commit to him just like we committed an act will employment state that you can work for us and we'll pay you and he's done that for forty years and we've made good on it i would emphasize before i said you know in your article i see my rebuttal time has on that if your inclination is to think that we did something wrong and therefore we shouldn't get the refund that's that's perfectly fine because we never even brought this lawsuit for the refund we were never trying to get the money back this was a lawsuit that was brought by central back when the district court said no you took an appeal you're asking us to give you ten years contributions back you can't possibly say we're not here to get the money back short well only because your honor we view this as a proxy war for the withdraw liability arbitration under which central states brought this case not us and they did so in order to try to get it legal determination that there was no legal obligation to contribute on eskies behalf and then have that imported into the withdraw liability arbitration we don't care whether we actually want email advocacy which is when you're in a hole stop digging ok well i didn't realize i was in a hole so maybe that's more of a statement realize that already you should know  good morning or honors may please the court at issue with mr lewinsky is the fact that every shred of time dot that paul did that is in the record in this case supports the fact that he was our position that the feast schedule as distinct from the aaa rules need not be approved by the p b g c those the feast schedule the rules themselves that were approved suggests that the fee schedule can change that the p b g c knew it could change and that the p b g c approved of that fact and it wouldn't be a surprise that a federal agency you look what they did your honor was approved the rules and the rules said that the fee and a fact at the time of filing controls that provision makes no sense if the only way you could get the fees change was to go to the p b g c each time and put in a new schedule because then that would be the controlling schedule there wouldn't be a need to have this provision in there now counsel for ball has made much in the recent filing that the aaa has now sought from the p b g c approval that's not surprising that this litigation is pending arbitrator or go to federal court to get an appointment now it won't surprise the court i believe to know that funds and employers have differing opinions as who the best arbitrators will be in a case that's why the  rules work so well that aaa provides a panel the parties can strike the arbitrator's that they don't approve of and that aaa then makes the appointment from the mutually agreed upon arbitrators th saddled so is no longer pending litigation i'm not aware that there is any other litigation pending now i know that there are other employers who have raised the issue in in the context of making their arbitration demand or have reserved to the issue but most employers have simply paid the fee because it's cheaper to go through the aaa process and to simply pay the fee then it would be for them to spend thousands of dollars more litigating the issue and frankly i believe most of them realize that the aaa appointment system is superior to what the the the the so first of all p v g c can revoke if if somebody either on it's own initiative or if somebody petitioned p v g c to do so secondly because the arbitrator award costs to either party like a filing fee and a district court case presumably if an employer prevailed in an arbitration it could ask to get those fees back now i don't think the fund or the employers would continue to participate in a system where the feed you initiate outrage is a million dollars because that would mean that one side or the other in every case is going to be paying that amount so that that is a constraint add that practical concern is also a constraint on aaa zwilling is to do so because there are a business to a non not for profit business but still a business and if nobody comes to their door because  the fees are outrageous then they cease to exist as an entity so all of those things really counsel against this parade of horribles that bob says indeed in the filing the most recent filing last week in the federal register notice the approval was asked for the fee schedule itself not for the new rules so aaa and the federal register and the p t c in describing the application has treated the fee schedule as something separate and distinct from the rules and as we've argued in our briefs as the district and in our belief the fee schedule does not need approval separate from the rules particularly here where the rules that were approved say that the fee schedul hundred eighty six rule aaa rules say that the fee schedule in effect at the time of filing controls and those rules were proved by the p v g c so the last thing i'd like to touch on this issue is the fact that the district courts lap straight payout to the district i find that the triple the two thousand and thirteen aaa rules were invalid which is not the case because they're identical to the one thousand and six rules which were approved judge even if the judge was right that that the two thousand and thirteen aaa rules needed approval which we don't believe they did because they were exactly the same as the rules already approved the fee schedule didn't need to be but the judge and instead of saying well then the two thousand and thirteen rules apply or the nine hundred eighty six rules apply which as i've said are the same thing said the p v c default rules apply and that ruling can't be upheld even if the court found  fee schedule did need to be honor and thank you i would like to again return to the refund issue and point out that the trustee determination here was that mechanics are covered as a classification was what i can do the trustee determination that you're being asked to affirm that the mechanics are covered only as a classification again the c b s nor the settlement agreement even contain the word mechanics and the funder rector testified under oath that it would be a pretty steep climb to prove that a that does not name a classification explicitly somehow covers that classification and he said he had never seen a c p a that does that so in order to affirm the trustees you have to find that this is a c p a that has never been seen and central states not only that there's no reason for these contracts to include mechanics as a classification because at the time the that they entered into the settlement agreement the fund assumed that when asking was a truck driver he already would have been covered by the c b s and so they proceeded under that basis there was no reason to say that they were adding something else or over even if the fund attempted to add something and they did not because they didn't know but even if they did that's not their place under labor law it's the bargaining representatives right to bargain over who's covered already you think is the source of the mistake throwing him in with the driver point because he had been working in one forty two territory for so long the the unions merged to ninety eight merged into one thirty five he got somehow lost in the shuffle and they've because we treated him as being under one forty two that whole time  still thought that he would get a one thirty five pension because he was a one thirty five member indeed the one thirty five members themselves referred to the one thirty five pension as a one thirty five pension they didn't call it central states they called it one thirty five pension so this was a mistake of was that  had that they just thought he's a one thirty five member he'll get a one thirty five pension and remember central states came out and i did it well transport for more than two years with terry when i ski at the heart of that audit and at the end of it they never said hey terry when i ask you shouldn't be contributed for he shouldn't be covered here that we had no reason to think otherwise and so we continued to contribute and the fundus soon to that he was a driver all along so there was no reason for anyone to catch this it was only caught when we got hit with the seven hundred thousand dollars worth of withdrawal liability and said wait a second we never should have been contributing for him in the first place and that is consistent with what al nelson said when he said he'd never seen a c b s does what this one has to do in order to hold the trust the bill turner who was the union business agent was deposed and testified under oath that he did not include mechanics in the c v a and in fact he didn't intend mechanics to be included and that and see my time is up i thought to finish this point and that the work that terry the rescue performed was not covered by the c b i and i think that it was clear that it wasn't and i asked your honour's to look at that and i would emphasize again that the the legal doctrine here as to whether we had a legal obligation to contribute is different from whether we get the money back that legal obligation is at the heart of the withdraw liability case and i think this is just a proxy more for that and i would ask you to give that for consideration thank you ok well