at the basic level this case involves a relatively simple dispute and a relatively simple issue the dispute is that the company agreed in a collective bargaining agreement with the union to pay certain wages and benefits and those wages and benefits together form a complete economic package that the employees are represented of the union bargain for them that the company agreed to and that the employees we contend have a right to expect to be paid that's what the dispute is the issue in this case however is not a resolution of that dispute the resolution of that dispute the union c is to be resolved in arbitration that is has the company agreed to arbitrate the a wedge to noncompliance with the collective bargaining agreement that underlies this dis not complying with what i thought they were but they had indicated in their brief that they believe that they are in a fashion complying because number one as i understand their argument they are paying withdraw liability which is a statutory argument they are not claiming they want to keep it i think they're claiming that because at least as i read their preet that because they are putting that in the escrow fund that means that they are complying with the cream and as i understand their argument they're claiming that they are they remain ready and willing to comply with the contractual obligation to pay pension contributions the problem is they can't do that because the pension trust will no longer accept those contributions also so i think that you could you have an option available to you which is to negotiate i mean you're basically asking for a remedy you say you want you you want them you want them to alter the collective you want to alter the collective bargaining agreement so that they pay this money to the employees in the form of wages i understand that they're going the other alternative could be given the current reason for the pension and the pension trust not want to get the money is that salaries can be reduced so th what you thought last thing that you suggest is in fact what the union what do you mean has with many employers negotiated in order to pay for this minimum contribution that was imposed by the pension trust in fact  is to the union and to the employees that it represents there have been wage reductions that have been negotiated in order to pay for that that has been one of the options that they have that they have done but however the come from what i understand that's not what you want and you want them to pay security tax well i believe that the union in the negotiations leading up to the companies being being expelled from the plan i believe there were options that were discussed i mean they were discussed with this employer discussed with a lot of the employers about about the wage reduction what but but they've reached a recent who decides isn't the question whether it's an arbitrator that decides or some other entity isn't that the basic question here that is the that is certainly the issue that is the underlying issue is whether the circumstances as as they exist which is the company has been expelled from the plan whether those circumstances have know that change in circumstances and titles the union to seek an arbitration a remedy that would restore the full economic benefit of the plant i believe that it does because  what we're dealing with right now is a contract in which the company is paying less for the benefit of the employees than what it agreed to and there's just i don't think there can simply be any dispute about that the company has suggested that pain withdraw liability that it isn't fact giving a benefit to the employees because that that that helps to fund an underfunded plan and shores that in the future that there is going to be money to pay pension benefits that have already accrued but that's not what they they want to use it to pay their withdraw liability which is a statutory liability not a contractual liability and it's and it's a statutory liability the it was imposed when they were terminated from the plant expelled from the plant that's what the company wants to do with it what we envision to be done with that money is it should be used and what to do union is your question it should be used to for the benefit of the employees not as wages of an arbitrator may not agree with that and i understand that that we are not necessarily destined to win an arbitration but the union strongly believes they are entitled to that arbitration that they are entitled to to to let an arbitrator decide what the what the appropriate remedy is for what is essentially a noncompliance here i mean the company claims that they are willing and they remain willing to make the pension contributions but that's not going to happen the pension trust has made that clear that they they were they were warned they were going to be expelled they did not agree to her contribution rate they knew that was going to happen they knew they were going to incur a wall withdraw liability that's what they chose it happened and so now what we're left with is a situation where the company is paying money into an escrow account controlled by it it's not going for the benefit of the employees they get nothing from this and so to answer your question what judge korman or what what the union believes should be done what we envision should be done is that that money should be  used for for the benefit of the people for whom it was negotiated the employees as i said maybe an arbitrator will not agree with that but we strongly believe that we're entitled to ask an arbitrator what should be done with that with that money without that that the company would be paying into the pension well the union certainly believes that it should be the full amount now the company has made some arguments that that would result in the company paying higher amount because of payroll taxes and such as that those are details about a remedy that are for an arbitrator to decide i mean there's two ways to look at that as there often isn't disputes there's always two sides and what the way the union looks at it is the employees should get the full benefit of what the company agreed to pay and they would not be getting the full benefit of what they agreed to pay if if there is an adjustment made to account for payroll taxes i understand that the company looks at it differently because that from their standpoint they say we only agreed to pay a certain amount and we should only have to pay that certain amount again that's fodder for arbitration that's for an armored arbitrator to decided to work out the details of that but that does not defeat the issue  does not defeat the requests of the issue that is before the court right now and that is whether the company should be compelled to arbitrate this grievance and and how do you address the phrased in this c v a arbitration clause that the  have jurisdiction or authority to alter in any way the provision of the agreement well first of all the courts have interpreted including this court the courts have interpreted that phrase to be something that is  left to an arbitrator to two to interpret as a matter of fact if you look at the actual full phrasing of that language in the collective bargaining agreement what it says is that on any measure matter that is a bit properly submitted to an arbitrator that the arbitrator should not have that jurisdiction the course of held that that that that contractual language is reserved for the arbitrator in the first instance to interpret not the court that is not a limitation on on on b that action is strictly limited or it's very severely limited by the standard of review that whether the whether to the award draws its essence from the collective bargaining agreement an employer if draws its essence from the collect i i understand that it's work we're left with that standard that was given to us fifty years ago at this point from the supreme court in the steelworkers trilogy but but that is around and i think that's how the courts have getting back to your question judge moore that's how the courts have looked at that language is here is for the arbitrator in the first instance to interpret that and then if there's a disagreement about some of the award that's been imposed then that's subject to review by the by the court under the whether conceal a binding arbitration clause applies to a certain type of controversy and are certain type of controversy is a grievance filed by the union seeking to alter the labor contract they take the money that is designated for the pension contributions and moving to section seven article seven section two which is wages both of the agreement has already been altered by circumstance you're not paying money into the pension fund so the provision that says you should pay money into the pension fund is not being complied with and their argument is we need some sort of a remedy for that failure even though you may not be first for the arbitrator to decide given the dispute between the two parties what this c b a provides and what the arbitrators authority is in terms of providing remedies because this but we know from many cases that in from pick words which is a ninety which is subsequent case in one thousand ninety five words says that we can come to the court and ask the court before the arbitration to decide arbiter ability and that's what we've done and we have a right to do it or their recent six circuit cases that really give much power to the arbitrators including on bond said thirty cases how do you deal with those recent cases because you cited in one nine hundred ninety and early case well that's nine hundred ninety case but there's also two thousand cases things like that i think those are two different issues the authority of the arbitrator once he or she gets the claim the grievance or trade has great discretion but again the arbitrator can't disregard labor contract can't go outside the bounds of the labor contract and we're here talking about arbiter ability which is a dip completely different issue than i think is michigan there's a there's a rescission case i can't remember the right now but it's set the rules for what the authority of the right it's different also when you're talking about the provision that i quoted earlier about no jurisdiction to alter the provisions of the agreement that the earlier part of that sentence says an arbitrator to  grievance shall be submitted shall have jurisdiction to interpret and apply the provisions of the agreement so why why don't we look first to that giving the arbitrator authority and then the arbitrator arbitrator can do as a remedy but not saying the arbitrator doesn't have the power to consider the problem area little but the disc grievance is about it's not the remedy the remedy is later  country it's not about remedy the union in a letter sent to the company said i mean i understand what you're about to say but they might not prevail i mean why or why not you could have your judicial review after the fact that there may not prove you could arguably i mean i don't understand this argument that your panel is going to go for the benefit of the workers in any of that but but you could argue after the fact that if he gives the union what they want that he's altered the terms of the agreement but this at the present in this court the president's court is under vick words and under me which been altered already because you are not making payments to the pension fund as required by the collective bargaining agreement for whatever reason i may not be your fault but essentially you are not complying with the terms of the collective bargaining agreement and they say to the arbitrator we'd like something equivalent in return your burger good capable of saying the equivalent the return is for the workers to take less money per hour in wages and you'll make higher payments for the pension trust but then is altering the labor contract and there's no obligation overall to labor contract there is no obligation to the for the company to agree to the union pension funds demanded a pay more money than in greed to it labor contract well that's a dispute as it is you're not complying right now with the terms of the collective bargaining agreement they want  jurisdiction and know what they already took on to the alter any provision of the labor contract is there any remedy that the union could ask for under these circumstances that would be  giving jurisdiction to the erb a traitor to provide in other words are you saying there's just no way that the union can get a remedy that is within the powers of the arbitrator here the unions only ask for one remedy and then remedy is really the is a master to hypothesise what are there any other remedies that the union could ask for that would be within the scope of the arbitration not that i can  contract and pay into the employees and even if you say ok take off first the security info workers comp and all that they're still saying take the money that's been designated for the for the pension fund and move it over to  tarakan seven section two of the wages and the country access you can't do dead so there is a remedy is no matter whether you like it or not the remedy is negotiations and union has the right to do go share with the company over what's pay the money to the employees minus the social security and workman's compensation and whatever other additional expenses result from treating these as wages he can't say wages line i don't think so because if the contract says the employee classifications good sixteen dollars and sixty nine cents an hour and then the arbitrator says no that's twenty one dollars and ninety four cents an hour that's not a construing that's a change but i mean if i heard you if the arbitrator says you pay the same amount for the employees and to the extent that you're arguing you have some additional technical stuff for the arbitrator to decide in a normal in a regular contract may be what are kind we're not talking about everybody else's contract we're talking about our contract and our contract specifically going to enter i'm just sort of trying to establish what they might argue would be that they're seeking to interpret and apply the provision of the agreement that required there to be contributions to the pension fund and salaries hourly wages for the employees and resulting in a certain benefit to each employee and this is interpret applying what to do when the payments are not being made to the pension fund but they're not they're seeking to alternately with the agreements on the communications all the letters say the union is seeking to alter the labor contract take this money and pay if you don't pay the did they did the union used the word alter i'm a little believe the union you used the word alter but they said the country should be added to employees labor contract if you're adding something you're altering it the company is obligated you say the remedy here is negotiation when will the parties negotiate a new collective bargaining agreement they started last year  have a in the in labor contract says the arbitrator does not have jurisdiction over a grievance to alter the labor contract that means that the arbitrator cannot hear the matter thank you very much thank you final point i'd like to make to follow up on what you mentioned judge korman is that this collector bargaining agreement has already been altered it's been altered and and the question in this case is not whether it's going to be that's already occurred the question is whether this alteration of the collective bargaining agreement is going to stand the way that it is now which is obviously how the company prefers that prefers it to be or whether the company is going to have to pay the full economic package that it agreed to in the collective bargain agreement is not doing that right now i understand that it's putting money in escrow and that it's presumably it's not using that money but it is not paying the full economic benefit that it agreed to in the collective bargaining agreement that's the alteration to the question is what are we going to do about that alteration and the union believes that it's up for our it's up to an arbitrator to make that call as to what to do about it the all sorts of details about what could be worked out how's that interpretation of the collective bargaining agreement when it's a circumstance really on the contemplation of the parties and it's not included in the collective bargaining agreement and this is not subject to interpretation this is an unforeseen circumstance two points unforseen circumstances come up all the time in collective agreements that come up all the time contracts as a matter of fact also and the second we look at the language of the contract and this arbitration is governed by contractual agreements and this is a narrow grant of arbitration rather than a broad clause does narrow the scope i mean that if the parties had wanted a broad scope of arbitration they could have put such a clause in the contract but they did not do that  an arbitrator's authority of your if if it's alleged that you're not complying with it that's an arbitrary dispute the second point is ram a days for noncompliance as a supreme court is held many times are part and parcel of the arbitrators authority that is that is that is granted and so what we're requesting here is a remedy which it's certainly true that it was not expressly contemplated by the parties but that happens all the time and it it where there was a successor company that an arbitrator had imposed a collective burden agreement on the parties not contemplated the happening but an arbitrator decided in interpreted the contract to oppose that successor agreement  to impose the collective bargain agreement on that on that successor and that's just one of many examples would you agree that if the arbitrator posed a remedy that wound up costing them per hour more hypothetical he says you give the workers the money and even though it's going to cost you extra money and terms of social security benefits workman's compensation you're going to be wind you're going to wind there's two views when you're talking about performance by one party and receive a performance by another sometimes those don't exactly match up and and the the performing party here has an obligation to the people who are expecting a particular performance and what those people those people are the employees they expect a certain economic benefit in a certain amount of total economic benefit i stand that that the focus of the employer wants put on is on this is just on wages but wages are not the only aspect of this of this case and that's why the union believes that it should be viewed more broadly in all of the provisions of the green it should be construed to to to achieve a remedy that that