morning everyone and welcome and thank you for your patience this morning or now ready to call the first case which is labor pension fund versus w r weiss company case number decision affirming the arbitrator denying withdraw liability to fund this case involves an interpretation of the construction industries and under the multiemployer pension plan amendments that the   documents here and addition chip the global sea well b i i think i can answer that ok at the section of the construction industry exemption and talk about the continued to perform the work in the jurisdiction of the collective firing freeman of the type of which contributions were previously required and in this case the withdraw all assessment involved years of laborers work the hours were reported to the fund these this amount the withdrawal liability in this case is an amount of a vested but unfounded pension liability so that these people were laborers they work for this particular company their hours were reported and paid to the find and eventually the company withdrew from the collective bargaining agreement the fund collected on a monthly ongoing basis this has nothing to do with contributions collected on a monthly basis has nothing to do with finishers hours or contributions for finishers these are laborers can use will get their pension the fund now if the liability isn't paid all the other players in the fund they have to bear the burden of making sure that the underfunding right well i understand the practical effect  here which is what you are describing but i my question was really directed at whether there really is an issue of statutory interpretation in this case i don't i don't see it the question is whether under the interlocking set of contracts that apply here the work was of the type for which contributions were previously required that was the foundation of the arbitrator's decision well if you look underfunded is the previously required keith then the question is whether the work continued and if the work continued there then the statute can be interpreted continues to perform work in the jurisdiction of the collective bargaining agreement of the type for which contributions were previously were wired the type to which contributions were previously were prior to refers to those labors contributions that form the basis  underfunding and in their haste then the work to continue and the reason for they had interpretation is really the basis of the  the work doesn't go to other employers if they had employer stopped work and other employers came in and picked up the bidding of the jobs for stone that the we see company performed they may have hired laborers and paid labors to do the work but in this case we said self said well the work continued but we have finishers do the work we like finishers better single harder can i ask you to tell us a little more than the stipulation does about the facts about the work that was done by laborers before two thousand and done by finishers and after two thousand well the laborers the work involved  i mean inside and outside at least is a distinction it's fairly easy to understand in the preacher two thousand and nine states granted then i take it your position is that the that's good when why stop hiring is there anything in the statute the exemption put requirement about continues to perform work in the jurisdiction of the collective bargaining agreement of the type for which contributions were previously recorded anything in there that makes this issue depend upon who did the work the identity of the person doing the work or is it just the type of work i think is just the type of work that's what the earlier said well the arbitrator said the work i involves sub contractors which was an exit to a's and so there was even a more difficult pill to take for the employer to be found by the agreement which with employer withdrew from that obligated them to hire union subcontractors but in any event rather than going in their case that their court set up and really discussed the details of how the statute should work in the situation and they say well one question is whether the employer application to contribute under the plan which in this case was agreed and then the second question is the employer either does or does not continue to perform the work and i think they call this the bright line test and  it's at the end of the opinion sets out very clearly that it's important to make that distinction and i think going back and talking a little bit about the fund he has a policy that seem to have got involved in this and the funds policy with respect to whether people are of one trader where another and how we collect them got involved in the question of withdrawal liability and their policy says that when effectively don't double decker i don't work here and and it's a reasonable policy not to put many employers have so many overlapping trades that electricians overlap with with the laborers operating engineers mi agreement when really the question is whether the work is continued and the work is continued there is no dispute about that those are undisputed facts and i think if these are decisions are allowed to stand and the pilot policy considerations should be  here and one is that employers will self select maybe which fund to pay into and based on maybe the withdrawal liability of one fund over another and then the other more important on the job side make investigations about who's doing what work and collect for everybody who's picking up a shovel that may have some overlap and i think it's important to consider these policy opportunities  because we the arbitrator and judge chang were all correct that the construction exemption applies the marriage decision below should be affirmed and because the fund forfeited the only argument that c could have escaped clear review by failing to present it to the arbitrator the decision denying weiss's in title meant to prevailing party fee should be reversed may please the court my name is lenny gale and i represent w are we and her son peter we saw peter was the company representative throughout the arbitration and provided testimony about the business week's business the construction industry and in particular provided the testimony that led the arbitrator to conclude that the fund itself not the union the funding was stopped because of statements and it continued course of conduct that it had and conveyed to the we says that the collective bargaining that hearing followed a year of pretrial document discovery and deposition discovery and that hearing was followed by extensive post trial briefing over one hundred pages that ended up including the unions see prevailed and the fund lost and it was done to an independent grounds first the contributions had not been previously required that is an element separate from your honor's questions on jurisdiction there were two acquired is what the arbitrator held and what the district court found here and then second the average trader held that even if funds even if the previously required element was somehow met the fund itself was your argument on the proposed withdrawal audit comments but the the fund is not trying to withdraw liability for a single withdrawal for which contributions were required bear with me clearance of course that's the perspective from the statute what work was shifted away from the fun here and then where did that work go and it sure looks like it went to the finishers union i'm sorry so i guess that this looks like a fairly simple problem to me at least as long as we can draw a line and identify what work the laborers were doing that they've stopped doing your honor i believe two things about what the court's line of thinking yes one is he marries a true element statutory question into what the question about whether overlapping jurisdictions with different trade collective bargaining agreements which are written broadly enough that you know that you're going to have these kinds of disputes that get worked out one way or another and so the question is first was it  within the scope of the c p a in the jurisdiction the answer yes they were working for for your client within the jurisdiction doing work within the jurisdiction with labor's c p a and was work contributions required for it well yes now not when other unions were doing it then they weren't requiring it but that's why i think this seems like a pretty simple problem well let me let me address that let me take the second point the the unloaded trucks that doesn't end the previously required question that has stand which is at best in our mind the jurisdictional question what i think we're contributions previously required for pushing brooms and cleaning up  the stone but your honor there was a period for example and i harken back to a question u s counsel a moment ago before we stopped employing setter laborers there was a period where they employed them both right i'll give you the archetype by side doing identical work during that period of time we spade contributions to the labors pension fund just for the bricklayers and the labor repairs it did not pay pause for a second the audit was whether we says i would be huge obligations under the labor's collective bargaining agreement were being discharged and what did the fund in its auditor say yes cut if you look at the language it's remarkable it says you've paid everything the contribution requirements have been sufficed we shows nothing and that cup governed the period when they were doing identical work side by side so when we go back to a stop which is i think how we got on to this question the union has a policy that the fund adopted and implemented and enforced it said when laborers are doing the work you pay and nonunion sorry and when a member of another union is doing the work you don't pay the nonunion distinction an a c l yet actually prove our point in h c elliott the courts the one to get looked at the collective agreement and because the collective bargaining agreement made the employer responsible for contributions for nonunion employees they were on the hook which gets that this primacy of of of your honor's of your sex question right at the beginning which is this has to do with what is the collective bargaining agreement say in the elliott the quote the barn agreement said something that resulted in contributions being were quite in our case as judge chang ruled and  fund is never joint the interlocking contracts are ambiguous and so what you do is you look at the course of dealing between the partners in the course of dealing in this case is extensive its decade long and its undisputed one you have the laborer's funds representative testifying on cross examination that we have a policy a policy that is consistent with the discretion the fund gets in the very declaration of trust on which the fund realized that we can interpret whom contribution to require and you heard in the arbitration the representative of the union stand up and say we are discharging our obligations in a way that requires contributions for laborers but does not require contributions from members of other unions that was their discretion and implement so in the exercise of discretion there how did weiss decide which union workers did which work said decided that finishers wheezes business was moving to what's called lower podium work where the guys were closer to the work and so it was higher quality work it was more crafty it was more difficult work finishers could do that difficult work finisher instead of peers did that difficult work in fact the record contains an example of where we tried to use laborers and bricklayers to do the work it got really been we had to bring in setters and finishers to complete the job this was on jackson when seventy five was getting back to the court question and so what least decided after the art institute job which i described was weakening employ the setter and finisher parish to do where our business is going which is this hire craft work and we're there is still cleanup to be done we still have to unload a truck the setters can do it which is outside work you know since as i heard earlier that there were there was sort of an inside outside distinction before that evidence came out i'm concerned that the the arbitrator short circuited a more fundamental question by this somewhat surprising statutory interpretation and with respect to fifteen they wrote similarly under the m p a assigning the work to a different trade does not change the work the work remains the same identical task continue to be labors covered work i'll be had not performed my labors the work cannot be identified by the union employee doing the work so on and so forth that looks to me like they're statutory argument no it's their stage three are going to bother with it in within the jurisdiction that it's element one it's prong one of the statute collective bargaining agreement and it is remarkable for them in response to your honor's question to say that it comes from the statute because we have it in our briefs up and down they argue to the arbitrator and then to judge to judge change it's there's no separate statutory words that are ambiguous they argued two things one there's an amorphous statutory policy which your honor essentially call out and said that's not statutory ambiguity show me the words that are ambiguous you still work and that therefore the contract which they mistakenly asserted was unambiguous because as night follows day if we prove it if it's within the jurisdiction then contributions are required that's all question was what did the agreement say everybody agrees the statute requires reference to the collective bargaining agreement there's no way to interpret the statue without that we argue to the arbitrator those agreements are ambiguous and you look at this ten year course of dealing they said that it's night follows day it's not ambiguous so can you direct this to any other situation where we've had work or if you had to deal with this kind of selection among responses when we cut the shortfall this is not an instance where a stoppel or a position by the fund applied to one employer this was industry wide so there's no clue ashkan of how employers are being treated differently every employer got the same message from the front based on the undisputed testimony from the fund represented so this isn't a case of like like in black where the court in dicta said i'm not talking about i'm not talking about you stop a problem i'm talking about just leave the problem of shifting work from that's been divided between two unions and shifting into one ok that's not between employers but i understand what you're saying i was under these circumstances there is no withdraw unless the employer would have been obligated to make contributions for work performed by sub contractors under the terminated agreement if the contributions would not have been required there would be no withdrawal because the employer would not be continuing to perform work on the type which contributions will produce the required in that case an elliott your honor the sub contractors are the finishers in that case the sub contractors were reply and were hired to do the work that the union that the funds people had previously done and what eighty elliott says is look at the contract to determine whether contributions for those people the new people the sub contractors in that case in this case the case only it's better why is it better because the find itself testified that this is how we interpret our agreements we're interpreting our declaration of trust and our contract to say that if you're paying contributions to another front retirement we are not rock wiring it from you and the language of their audit and the language of the testimonies on point to the second element under the statute and that's and then that focuses well as as as you want to on the finisher's work that was being done before the split before the shift in two thousand and nine with the focus of the statute on the problem is on the laborers left behind innocence and they were doing work contributions were required that work is then shifted to the finishers and that sure looks like a withdrawal to make from the laborers fund you type for which contributions were previously required that would be work being done by the laborers right will not in this instance because we have a period of time when finishers were doing work in the jurisdiction according to the arbitrator and them before withdrawal go back to two thousand and eight are there yet laborers doing work within that for which contributions were previously required there are both laborers and finishers during work during that period that they contend is within the jurisdiction but there are laborers yes there are doing that work that was work within the jurisdiction of the collective bargaining agreement sure right and after two thousand  skin tin used to perform the same kind of work that the laborers had been doing and for which contributions were required here go no withdrew there's a withdrawal i'm with you until the a air go assumes a meeting of the it assumes as night follows day that contributions when it says previously required you're talking about a subset of the workers you're talking only about the workers for whom the collective bargaining agreement covers them and that's exactly what the witness said we don't do so suppose let me let me simplify the salute suppose we said had two different unions doing the same type of work which we did for a period split the split fifty fifty and then the employer decides now it's kind of a hassle dealing with two different unions for the same kind of work people are arguing about who gets how much present in our case that and that are relevant to your question the cast of question in our case is what is the collective bargaining agreement say first and foremost because there is no way to read the statute without in my view referring to the collective bargaining bridge to answer both questions both whether contributions were previously required and whether or not they were within the jurisdiction and when you look at the collective bargain in this case it's ambiguous judge chang is rock solid on that there is no answer from the fund and when it's ambiguous you look at the course of dealing and the course of dealing in this case is consisting both of the audit which are audited whether release complied with the contribution requirements that are at issue in the right right but it's not looking at withrow liability well it's looking at the question that is essential to withdraw liability were contributions previously were quired under the collective bargaining that's what the that fact question you need to look at the c b a and we there's no answer on that the c b s did not require them for finishers and then you need to look at the course of dealing and with respect i think the course of dealing answers your honour's right the course of dealing you could you could have written a collective bargaining agreement that said no matter who does the work if work is being done in the jurisdiction and you should think you're out of luck that's not what these collective bargaining say because that's the testimony of the person who interpreted them and implemented them and even if it were which it's not a stop it was a slam dunk the only argument they have not exactly you've got it all kinds of legal issues concerning you stop all none of which were raised none of which were raised they're all forfeited the only issue want to stop when the arbitration is whether or not peter we says witnessed was testimony was credible so how is it how did you rely by withdrawing in two contribution amounts every month we said check here's for whom were making contributions and there wasn't a peep the audit was just the exclamation point on what we already knew from our course of dealing would be on it's don't matter for the you know it's an it's it's the exclamation point because it covers the first audit is before the withdraw the first audit is two thousand and eleven the with rollers two thousand and nine no two thousand and nine two thousand and nine is when the work the agreement those audit results were there telling us you have you have made all of your required contributions consistent with the policy testified by the man who implements the collective bargaining i may go back to the waiver argument we the district court that the waiver argument was not waived by the fines and  the stipulated issue with the question that the arbitrator was asked to answer and what the parties put together it's page appendix page seventy seven in the front appendix and that was the issue and it basically incorporated the language think the thirteen eighty three key issue and and that included whether or not contributions were previously required to me being to the pension fund the arbitrator answered that issue the brief that judge hamilton discussed earlier argued all of the answers to that issue and basically focused on the work because the focus on the work is the interpretation with respect to what is previously required and what what is being currently going on with weeks they are taking the work that was labor's work and handing it to finish often no intentional reliance the way we spur trade a stoppel in his arguments was without even setting out the elements of a stop all he argued of course there should be a  reach the statutory question this court by reason of met bob because the arbitration procedure is different than one yearly between labor and better are part of a collective bargaining agreement it's a statutory arbitration procedure this court is permitted again over a review of all conclusions of law so well yes but subject to waiver and forfeiture waiver weeks and we say yes to raise issues and in their case since the employer is the burden of proof maybe it is not incumbent on the fund to raise the specific argument addressing how the statute is to be interpreted although we should not reverse the denial of attorneys fees and costs in this manner the funds urged this court to agree that the district court's ultimate decision that the funds were substantially justified is correct and one is the standard suppose current contributions for work performed by finishers does not relate to whether it owes withdraw liability for work previously performed by labor's going back to their question of the statute is not based on the the mixing of a policy that the pension fund has for monthly contributions as to whether the amount incurred by years