multiemployer plans that seek to prohibit retirees from receiving pensions while working in employment that is detrimental to the interests of the participants in the plan that has that that  have negotiated for the benefits through their collective bargaining agreements so in other words a multiemployer plan can prohibit reemployment of a retiree for the purpose of protecting bargain for wages and working conditions here that exception is being turned on its head it's being used rather than to protect bargain for wages and working conditions it's being used to undermine union to penalize an elected union official for serving in his elected position by forfeiting his pension while he serves as a vice president of the i b e w there is nothing in this pension plan that allows the trustees to forfeit mr o'rourke's pension in order to penalize him for working for the union the plan specifies that pension benefits can only be forfeited for work in the branches of the electrical trade in the united states mr o'rourke is not working in a branch of the electrical trade whether one understands trade as meaning commerce or as meaning a skilled occupation mr o'rourke is not engaged in electrical commerce and nor does he work in a skilled electrical occupation but he's an officer in that and the union that handles like a workers right it organizes electrical workers among other occupations yes but that and that was his tra that his trade at one time was that of an electrician that is true and he said that i don't it's hard to know what a branch of the electrical trade is but it seems to mean everything to do with the electrical this is not railroad they do not include working for the union so just as being the president of the nurses union is not the same as nursing being a vice president of the electrical workers union is not the same as being an electrician if we were people who have made the interpretation and after either side if logical it has it has some teeth to it some understanding to it and so my main problem is why should we interfere with the people it was green when it is or why should we not defer to them as long as it's a reasoned decision for your reasons may be better than theirs but if it's a reasoned decision why should we interfere with their separate contract or responsibility it is not a reasoned decision it fails all three of the criteria that this court has articulated for what for what makes a decision not an abuse of discretion so first of all it renders nugatory the plans a definition of electrical  industry as electrical trade the trustees said we're not denying this on the basis that he's working in the electrical trade we're denying it on the basis that the electrical trade and the electrical industry are co extensive and he's working in the electrical industry that's not what the plan says the plan says the electrical industry is defined as the electrical trade so the trustees must look at whether he's working in the electrical trade but they did not do that or you've your interpretation is a better one than theirs but that isn't the point they have a right to interpret it that they do they have the right to decide is there an abuse that they have done because they interpret it differently from you yes in addition to rendering the definite plans definition of electrical industry nugatory the interpretation also is inconsistent with the purpose of the plan and that's one of the factors set forth in tapley a reasonable construction of the plan must be consistent with the plans purpose and as i began by saying the purpose of the suspension of benefits provision is to protect bargain for wages and working conditions not to prevent union alumni from working as union officers so because it's inconsistent with the purpose of the plan provision the interpretation is an abuse of discretion interpretation is whether what he's doing no violates they said it was that part of the electrical scheme of things they use different words but you can see it's they're both electrical in a sense it is inconsistent with the purpose of the plan and each of those independently is a basis to find an abuse of discretion the district court went down the wrong path here when decided that mr o'rourke's employment could be prohibited because there is a trade union official that he's practicing the district court looked at whether this employment could be prohibited if mr o'rourke was over sixty five and then it extrapolates ed from the regulations that would apply if mr o'rourke was over sixty five to decide that because his work in the court's view as a union vice president is similar in some respects to his work as a union business manager he's practicing a separate trade he's practicing a separate set of skills not those of an electrician but those of a union official and the district court  that is not standard under the plan standard under the plan is whether mr o'rourke is working in the electrical trade and in which they interpreted the trade is different from you if if i understand correctly the purpose of all this is not his so that somebody doesn't get through time and class being in the trade and and so there are two for ing and taking money out that it's not speak i'm saying that it's like a soft non compete clause it is like it is exactly a non compete clause the concern is that a pensioner will be able to work in a lower wage nonunion electrician job while being subsidized by the plan and that is what congress allowed that is the circumstance where congress allowed a forfeiture congress said union management negotiated plans multiemployer plans can protect the bargain for wages and working conditions by preventing pensioners from competing with active union members for employment in the trade you know that is the purpose but that purpose is not served here where in the plan that purpose are here just saying that whatever but no the plan doesn't specify that purpose but it clearly shows that it is trying to effectuate that purpose because it says that benefits sixty five defines the electrical industry as the electrical trade so we're not looking at whether mr o'rourke is working in the electrical industry only at whether he is working in the electrical trade which he is not both because working right that it's true but at mr o'rourke's level the locals for which he's responsible include locals that are unions of police officers teachers assemblers of medical devices there are many different occupations represented among the locals of the ninth district i b e w just as the graduate teaching assistants at u c berkeley are members of the united auto workers he's been tho don't make cars many members of the i b e w are not actually electrical workers and mr o'rourke in his position as the ninth district vice president has responsibility for workers in all kinds of occupations agree that our review is abuse of discretion i agree that is it the review is for abuse of discretion i think there is some skepticism warranted here because the because there is evidence of bias against mr o'rourke in the record that this is the trustees actions in ignoring their own lawyers advice about the i really don't understand would you just told me abuse of discretion  abuse of discretion but i haven't heard this the tail end that you put on i understand what happened there and there is some conflict that was going on among the parties but abuse of discretion is of discretion and i don't know what case do you have that we have skepticism and what his that mean when we have to write an opinion so yes that would be this court's on bank decision in a baby which in which the court said that the discretion that the deference to a plan administrator is decision can be tempered by skepticism in certain circumstances including where there are procedural irregularities in the conduct of the administrative process and that's what happened here the there were procedural irregularities in that the court in that the trustees ignored their own lawyers and if they don't follow the lawyer then we can add skepticism to our abuse of discretion standard well i think i'm just saying i am saying that under the circumstances of this case there are it's not that we favor one side or another we just have a test and the test is abused discretion but what you're saying is anytime you disagree with a lawyer then we toss the busa discretion and we have some other standard we use i'm not sure where you get that i am not going that far your honor i am saying that under the circumstances of this case where there are various indicia of bias against mr o'rourke that that's a procedur irregularity that the court should take into consideration in selecting the degree of deference that it applies to the trustees decision it should also apply the three tapley factors which are some finding made that there was this bias against him was a factual finding made you know this was summary judgment there were no factual findings made but the there is i think a strong inference of bias against mr o'rourke from the circumstances here i'd like you  give us some time for rebuttal what we make of the planned counsel's determination that this kind of work isn't under the prohibited work that came after he left it did it did there was a board action in two thousand and ten where the board said we want to be sure that this type of employment is not going to be prohibited employment under the terms of our plan and we're directing plan counsel to determine if any changes to the plan are necessary to effect to wait that result several years later three and a half years later time to get a legal opinion though the lawyers did come forward with a legal opinion saying no change to the plan is necessary because this type of work whether for the union or for the employer association is not prohibited employment because it's not work in the electrical trade but that didn't do your client good unfortunately  decision was firmly grounded in the plain language of the plan which sets up an equivalence between electrical industry and the electrical trade the boards reading of the plans language did not render any term nugatory the prohibited employment rule is a broad rule the section two zero three reference that my colleague on the other side has mentioned in her argument is not a political arrest does not have a rule under section two zero three that concerns early retirement that's the benefit at issue here the regulations under section two and three are also congress in providing the secretary of labor authority to pass those regulations was looking at section two zero three and that section concerns normal retirement benefits the reading of electrical industry as a very broad category by the board of trustees is consistent with the board's broad reading of the prohibited employment role in a concern that the plan should only be paying benefits to individuals who have retired and who have left the electrical industry which branch of the electrical industry was mr work working it she was working for a union that's specified specifically is one that covers electrical branch is he there it's well i think it has to do with the fact that the i b e w is the it has the word electrical in it so  i understand it does but you know people belong to all kinds of unions that don't necessarily cover their industry so my question is is this a branch of the electrical industry because you can't read out the word in any capacity in the electrical industry the electrical industry is then defined as a term as any branch or work in any branch of electrical trade mr roark is working for a union whose function is to provide direct representation and to support workers working in the electrical trade doesn't matter whether his work working management shop stewards are working actively in the electrical job weren't they i believe so but that's not part of the record and i think if i could just address the issue branches of the electrical trade my colleague on the other side is that the i b e w constitution she referenced t he constitution does specify branches of the electrical trades that that's perhaps in a statement the constitution which is found excerpts of record be given some meaning and i haven't quite heard any definition from you so what is the definition of a branch of the electrical trade any segment of the electrical industry electrical trade  for example being an officer in a union that represents electrical workers would be within the branch of the electoral trade within the electrical industry the purpose of the suspension of benefits provision is not simply to protect bargaining work but it is also in this case with regard to early retirement benefits to ensure that benefits in a retirement plan are paid to those who are indeed retired and working in the industry the district court did look at as an analogy the post age sixty five the normal retirement definition of prohibited employment and the regulations under rissa two zero three in that respect the court looked at the those regulations and the post sixty five definition of prohibited employment as an analogy in that the work that can be done after age sixty five is broader than the work that could be done in an early retirement situation and within the electrical industry position or retirees who are older than age sixty five may work in a occupation that is within the electorate streets restricted as to the number of hours the geographic location whether there are job skills being used that were similar to those of the participants working in covered employment the definition under the early retirement prong of prohibited employment is much broader it's a single sentence and if the work is in any capacity in the electrical industry it is prohibited employment there is no procedural irregularity here with regard to the board's consideration of mr rorts claim an appeal the board did consider the twenty ten proposal that proposed consideration of a change in the prohibited employment rule to allow people to both get their retirement as well as work for an international union such as the ip you the board of trustees considered an amendment in twenty twelve at that time the board elected not to pass it it was tabled and the matter was resumed discussion on that matter was resumed when mr roark submitted his pension application did the board ever put in in the document that one of the purposes was to keep people out who would be in the union representing the workers that's not part of the plan that was also not part of the amendment there are meeting minutes from various trustee meetings where the credit employment role was considered over the years they're part of the record they go back i believe as far as maybe twenty two thousand to two thousand and four one of the considerations for the board in  historically in looking at the prohibited employment role was you know in part looking at whether the plan was being used subsidize work at lower  issue is that the plan is meant to provide benefits to those who who have retired those who haven't retired and intend to draw on the plan or who are still working in industry and tend to draw benefits from the plan would is inconsistent with the purpose of the plan and would require the plan to  change the actuarial sumption is in order to fund the benefits that are promised to employees what about the legal opinion which takes the completely opposite side you're arguing in is more in line with mister the lawyers memos there are two of them in the record there's a march two thousand and fourteen memo and then there is an august twenty fourth memo there is also meeting minutes where those memos are discussed and the board after reading the first memo felt that it did not take into account the prior decisions that the in the prior discussions that the board had had over the years with regard to the private employment role and the attorney went back and did look at those prior decisions and had a memo revised that the board considered in august of two thousand and fourteen the prior decisions were not considered in the march two thousand and fourteen earlier memo and the board had considerable discussion on the issue of whether the prohibited employment role would prohibit work in the view and that was discussed over a course of many trustee meetings this was not something that the board took too lightly and the issue of political hostility that my colleague on the other side has raised that is not evident from the record the statements that mr roark identifies in his briefing are taken out of context statements with regard to the precipitant employment rule and mr aris claim has to do with discussions of the board had regarding the historically broad reading of the prohibited employment rule to include positions that didn't necessarily involve the mechanical functions of an electrician when it could you go ahead we're going to have to review this as an abuse of discretion which gives question your side with skepticism whatever that means so would you please give me your position as to our standard review for this case and then indicate to me why you think that what using that how would you deal with the issue argue that there should be skepticism in this case because it is  the reference to the eighty case from the ninth circuit on bog that my colleague mentioned it is clear that pieces discretions standard is and let me just back up the that's glenn supreme court decision also talks about how conflict of interest is taken into account does not lower the standard of review it is still abuse of discretion the court can look the decision with some skepticism where there is a procedural irregularity and here there is no procedural regularity the board took into account many different points of view in coming to its ultimate decision the political hostility is not apparent from the the record before the court the trustees did take a look at prior decisions to find that the board had in the past consider the prohibited employment rule for early retirees to be very broad the other issue that was raised in the papers by my colleague on the other side had to do with changing reasons for denying that is not the case the board consistently on the claim and the appeal denial deny the claim an appeal based on the fact that mr roark was working in the electrical industry and therefore was subject to the prohibited employment rule thank you forfeit ability of all pension benefits and the only exception that applies to multiemployer plans is the exception for working in the same industry same trade or craft and same geographic area so it is not correct to say that section two hundred three does not apply to these