defendant trustees and the defendant union at issue is the contribution rate to the fund and how that is there is no dispute that the fund is underfunded and there's no dispute that the plaintiffs or members of the front of the fund itself is defined benefit plan that's unique in that it's distinct from the vast majority of plans generally found under a salute occasion and that's not a traditional employer funded groups to contribute at different places content plans contention has always been that all members of the unit had to contribute at the same rate that they were mandated to control how do we get here we we how we membership and would have to approve or decrease in accordance with the bylaws there's many more instances i'm not going to belabor the core but clearly membership means local for fifty it's the entire the entire there's only one group here that's local for fifty eight dollars to which the lower court found that the trust indenture could really contribute a lot of different segments or groups participate but it's critical to note that article three section t only uses the word segment st time we see it and it only refers to the fun participation so union can participate in the fund in segments but it doesn't say that the you can contribute a rticle three section two simply confirms you can have different segments of its union participate in the fun where each segment is formed from a different industry represented by the union so for example it has a lot of local participating unions and  accordance article four employees the undefined term any group of participating members while failing to employ the word segment or segments using article three in order to rectify that disparity the funds argued in the lower court here it's undisputed that the trustees acknowledged in their memo in the mid in their answer that the fund is not monitor or police the local union that the fund simply receives a list of participants a contribution rate from the union and they take the union's word for failed to collect delinquent contributions from nonunion workers were lying upon employer shops steward records that ignored those members the court there reason that the trustees knew or fees will investigation could have discovered that report obligations so clearly here the that the governing documents of the truck mandate that since the vote was taken the rate was increased to ten which apply to all members of the union we have evidence here that it didn't apply to our plane this came to light because our plaintiffs discovered that they were paying at the a percent rate and new members are coming into the union and they were not paying at the rate or they weren't paying at all some complain alleged that the membership set the country level the membership set the contribution levels by their vote so seventy percent so there's no argument that the unit was performing a settler function or they were setting the rate the rate was set by the membership now good morning my name's tom kennedy i'm representing the pelly trustees my colleague wesley kennedy norton is representing the union on this appeal in listening to the presentation by my colleague i think  identified the cardinal problem with their analysis he characterized the union's bylaws as a governing document of the pension fund that is simply not the case the fund is a governing document is the trust agreement which also functions establishes a discretionary review by the trustees and it's very clear and certainly undisputed in this case that article ten section six provides the trustees with discretionary authority to construe the terms of the plan and it is clear that quote the interpretation by the trustees of these documents or any provision there of shall be final conclusive and goes aren't so there's really no doubt that the plan itself has reserved the discretionary ability of the trustees to construe the terms of the plan and if you examine the nub of the complaint which is that the trustees allowed unions to establish different standards for participation different amounts of contributions for different groups the opportunity to do that is specifically provided for in the plan article three section two states that a local may be a participating local with respect to one of more segments of its membership or under separate conditions with respect to each of one of more segments which is just another way of saying they can establish different rates of contributions for different groups the plaintiffs argue that because the so there's language in the bylaws of local for fifty eight requiring a uniform level of contribution for that local union that that is some way a burden that shifted to the trustees obviously my colleague will respond on behalf of the union but from the point of view of the trustees the and the the just as always been clear it's been open about this the ation to determine the amount of contribution which is a sponsored decision and that is exactly what local four hundred and fifty eight dollars is it was one of the original sponsors of the local of the local subtler excuse and that was a separate function and the law is very clear that there is no fiduciary obligation with respect to the establishment by settlers and how much they will contribute to the fund but for that matter what the benefits will big and although it wasn't addressed by my by my that the amount of work that contributes during their entire career will be something summed up at the end of their retirement let's say they contribute fifty dollars a week three or thirty years that would  a seventy eight thousand dollars contribution and their monthly benefit would be one seventy five percent of that seventy eight thousand dollars a worker who had contributed forty thousand dollars during the term of their participation in the fund would also would have their forty thousand multiplied by one  seventy five the reason for that is i wanted to make sure there was no confusion about whether the existence of different contribution rates opposed the burden on anyone that does not the people who contribute less than what the plaintiffs are contributing were contributing to the f receive a lower benefit so that there is a consequence of the contributing at a lower level is felt by those members who contribute at the lower level not not the individuals who contribute at a higher level the  plaintiffs quote in their brief at page fifteen and also identified in the complaint the statement by the executive director of the fund to these plaintiffs that the contribution rate and i'm quoting is determined by local union bylaws in the fund does not monitor or police the local union but only receives a list of participants in contribution rates from the union and accepts the union's word that all who are required to participate are doing so at the required rate that is an accurate statement of the policies of the fund as in developed by the trust the reason it's important in this case is that there was never an assumption by the trustees of any obligation to monitor or enforce was never an assurance to anyone that that would be done so that this is not an instance in which the trustee functions in the plan must also be interpreted in terms of the representations that have been made or relied upon or anything like that the plaintiffs were told very specifically exactly what i'm telling you today that the unions establish internally what the contribution rates will be they can do that at different for different amounts within their union if they choose and that is something the trustees leave to the settlers of those of this fund namely those locals  there's also a reference in the briefs by the plaintiff that are not made again here today but just to address it that the union disclaimer of interest in connection with the representation of these workers in this particular plant cause these plaintiffs to be automatically tested by the father but i want to be clear about is that the fund did not take any action to vest the employees until they had lost their union membership consequence of losing union membership for any reason whether someone quits leaves sharp goes out of business or in this case the union disclaimed means that the workers are vested under the terms of the plan that was a decision made by the union with the decision to that's to these employees other than to apply its usual rules when someone has lost union membership other was a statement made by my colleague in this presentation that the trustees have a fiduciary duty to collect money that's owed to them we do not deny that we have every obligation to collect money that is owed to the fund this case is about what is owed to the f here that there were some people that were required to participate at a high rate that didn't do so so the debtor case and so forth which is involves trustees who did not collect contributions that were required to be paid under a collective bargaining agreement is an most that could be said for the interpretation claims made by the plaintiffs is that they might have created an ambiguity and in our view to the extent there was no ambiguity created it was resolved by the trustees mr kennedy again it's an irish temper good morning i may please the court wesley kennedy representing district council four and local four hundred and fifty eight of the teamsters graphic communications conference which are collectively the union in this case the union is not a fiduciary of the fund the union was the plainest bargaining representative under the national labor relations act and for that reason was a set or under us not a fiduciary the union didn't exercise discretionary control over plans assets in its involvement in collecting and removing contributions and the union did not exercise control over the management of the plan when it when it went under the label laws it disclaimed interest in bar in representing the bargaining unit the planets don't think to represent the union represented them fairly in the collective bargaining agreement and in interpret in the unions constitution bylaws they wanted the union to change their contribution rate to the fund in particular when the union was negotiating a new contract with the employer under the label the union's executive board which has the authority to interpret and apply the bylaws and the membership repeatedly rejected that request ultimately when the union couldn't conclude a contract with the employer that was acceptable to the plaintiffs the union disclaimed interest in continuing to represent bargaining unit under the unit good rate the union had reasons to doing everything it did but that's beside the point for your purposes all of this happened within the context of the unions relationship with the employees as their bargaining representative under the labor was not as a fiduciary of the fund under arrest of the union was a setup or not a fiduciary with respect to the allegation that the union exercised discretionary control over a plan assets and its involvement in collecting and remaining contributions to the fund in their briefs the plaintiffs describe this as controlling the amount of revenue that was used to finance the fun and this morning counsel for the plaintiffs said the issue here is the funding of the front that is clearly a settler function not a fiduciary function negotiating employee participation in the plan determining the amount of revenue that's going to be received by the plan is a settler function and there's ample authority for that in this circuit and in other courts for those propositions plaintiffs argument on the score depends on the that the employee contributions to the funds are assets of the plan and therefore under the but even under the plate of sciri those contributions become plan assets in this case only when they're deducted from the employee paycheck for forwarding to the fund that's that's confirmed by the federal regulations that are cited in the plaintiff's brief a page thirty all of the cases cited by the plaintiffs on this score involve that involve fail contributions which have been agreed to in a collective bargaining agreement and or have been collected and are being held by the employer to forward the funds there are no cases cited involving involving the setting of contribution is to collect the payments from the employer and then remit them on to the form that a purely ministerial act and the plaintiff acknowledge that that they do not allege that the union ever failed to timely remit contributions that's in their reply  page sixteen so the so that there were at the point in time when the union was doing things that the plaintiffs are concerned about deciding who was going to contribute required to contribute how much to the plan that was a set that was in a cell or function and is the bargaining representative of those various employee groups not as a fiduciary of the fund at the point in time when those those contributions might have been assets of the plan to become assets of the plan the union's role is purely minister ariel and there's no allegation that the union failed to carry it out in a proper fashion now the plan is to get around this by cause by saying the union selectively enforce the provisions of its bylaws regardless of what of what the proper interpretation of the bylaws is in the executive board did that in this case the court below properly found that that's just a repackaged way of saying the same thing determining how much argument that the union unilaterally vested the in the plaintiff in the fund when the union disclaimed interest again that the union the union was simply exercising in a forty that's well written well established under the federal labor was the cited in our cited in our brief which clearly gives even an incumbent bargaining representative the general right to choose to disclaim interest in representing a group the ploys plaintiffs admit in their reply brief at pages seventeen and eighteen plaintiffs do not alleged the union did not possess the authority to disclaim interest in plans bargaining and it did that the union wasn't exercising any authority order over the trust and ensure it was exercising its authority as the bargaining representative to withdraw from the r that has collateral consequences as the other candidate explained when somebody ceases to be a member active member of the union in it and actively employed in the participating employer the consequence is that the employee moves from active status to vested status under the terms of the plan that doesn't make the the union a fiduciary in this case as the court properly found page fourteen if the employee resigns that has the consequence of the employee no longer being an active participant in the fun of the play becomes vested that doesn't make the employee a fiduciary if the employer fires the employee  that has the consequence of making the employee best to participate because they're no longer active that doesn't mean that the employer was acting as a fiduciary when it fired the employee if the union chooses not to arbitrate that employee's grievance under the collective bargaining agreement when he's terminated the consequence is the employee is no longer active and becomes a vested participant in the fund that doesn't make the union of that doesn't mean the union was acting as a fiduciary whe arbitrate the grievance or not if the company closes the plant if the company makes the management decision to close the plant that might make race an issue on the labor loss with the union but the cut the fact that that has the collateral consequence of moving all of the employees the plaintiff as i said as i started as i said when i started the plaintiff's real argument was they don't like the way the union represented them that if that if that was a valid claim and i don't think it would be that would be a claim under the of fair representation under the labor was the union failed to fairly represent them as the bargaining represented the problem with that from the plaintiff standpoint is that that carries a six month statute of limitations under the supreme court's  no questions i don't believe so thank you very much article article three section two again only responds to participate only addresses participation not catchup article for one c states and i will read it into the record in section b above providing that the foreman for such greater contribution shell apply to all participating members of the local and quote and that could be found in the indictment for exhibit a trustee twenty seven  what this article for once he tell us it tells us that all this to obfuscate ssion about who sets the rich the rates were set and it's admitted in their answer and it's not contested that in two thousand and eight the members facing shortfalls in their fund were told we need increased contributions and the local membership that's one reason they complained that's how they answered the members voted to increase a percent so it's eight percent and what else we have we have we have an allegation a complaint verified by the answer that there is in fact a company that's local members were fast print and they're not paying at eight percent there which we paid a ten dollars and then that then that was increased so there's the evidence on the record completely union a trustee can't do that they have a duty to gather what's owed to the font that's why we believe died of his is one of the one of the case it's very instructive here they're relying strictly on the union to say who contributes at what rates and how they don't even know how the money groups that doesn't even come into play that's mentioned that's mike that's their defense that's mentioned twice there's no there's no there's nothing in the record that when they voted to increase a president in reply to certain segments not by the certain groups where's the evidence because there isn't because applied membership