assisted in the brief we represent delta sandblasting a small family owned family run company it's been a union company for many years which primarily sand the additional pension contributions that the n l r b says we had to pay let me ask you this is the start of the i gather there's no dispute by other parties that  delta is a party to and signed the two thousand and eight slash two thousand and fifteen collective bargaining agreement that requires them delta to pay pension contributions to the pacific coast shipyards pension fund record the union representative and the delta representative that discussion rather informal one but the the union representative gave a piece of paper i gather was called schedule and i don't know for sure but that's what i understand that was given to his wife who implemented what that schedule said you just viewed that  she didn't implement it she she went ahead and did with the union told her to do but there was no detail written agreement as required by three hundred and two c five well i and i understand that that's your legal point but what i'm saying is you had in the original agreement that you d the parties were friendly i gather met there was a document that was given the person from delta gave it to his wife who handled the payments she implemented  word implemented what the documents said and what the her husband understood moving up to a point and they also didn't have the funds to make the payments that the unions had reduced that what's wrong about that well  that's that's accurate yes it's i know you dispute about whether something more needs to be signed but you're right if you tell your smart lawyer good lawyer you know when you have a written agreement and you have something that people are friendly with each other they deal with each other when when people carry out the terms of the agreement a written agreement even though all of that was not in writing why would that not satisfy the requirements of the statute you just kind that this is a rigid requirement server uses the word rigid requirement and it's absolutely forbidden to have anything but a detailed written agreement expressing who the money is to be paid for and what base it's going to be paid for and which employees and if you look at this i call it the air sats or the fake schedule a the one that was supposedly waved around none of that information is on there well a started paying the increased rate in april two thousand and fourteen does that does that make sense to you is that your recollection as well no i think it was later than that but i think i think it was closer to two thousand and fifteen well that's when the december is when the meeting between santana and sanders occur in two thousand and fourteen there was a quote meeting right and that's when his wife supposedly was received the schedule way well i think what you would have to do is look at that if you look at respondents one you'll see a collective bargaining agreement that goes from page one to page thirty eight no no no missing pages and you see in there on page thirty seven i thirty five you see in there a document that says schedule a that is the only schedule a in this in this case now if you look at the two that is a similar document but three pages have been taken out of it there is no schedule in there and the union business agent who testified at the n l r b edited he has no idea why there there is no schedule a in the collective bargaining agreement he has no idea how it was transmitted to the company so we have one document that says schedule a section eighteen point four refers to schedule a that's respon one we're bound to that but then we have this other document that does not have a schedule a eighteen four refers to schedule a there is no schedule a in that document to ask you this are are you did you see before the n l r b or  fifteen there's more was paid you said that was never agreed to are you seeking to get that return well we'd love to have my understanding about the law in the th circuit is that that no money cannot be returned in preparing for today's argument i came it was i think after r c cloud and he held that yes he held yes the employer should not be required to make these contributions there was not a specific written agreement details as required by three or three c five and then he went on to s concerns me about this i practiced law for a long time did a lot of contractual work and this situation you're talking about putting aside for a minute the national labor relations act this happens all the time especially with small family businesses few people follow formalities or their own board meetings on an on time they maybe don't this form that far on the other but it works because people are acting good faith with one another and what i'm seeing here is you know some people knew each other then went to dinner they had said this about was the new deal you give it to is why she implemented it and then the company runs out of enough money to pay it they have a problem with that but what you're saying is that the fact that they didn't at that time have a lawyer with them who prepared schedule and every every jot and tittle was written that it doesn't work that will just work that way doesn't are absolutely well let's put it this way before congress passed three o two c five it did sort of kind of work that way and a lot of trust funds were out money and a lot of employers were out money and congress said we're not going to allow this formal action any longer this is in this causes people to think they have pensions when they don't this causes employers to think they have to make payments when they don't this permits union business dangerous to walk in and say hey i'll buy you a beer just sign this or allows businesses to come in and say don't worry about it just make the payments by the way i'll take a cut congress i'm just looking at the board record it says here that delta started the rehabilitation plan from april two thousand and fourteen forward i stand corrected i thought it was later but i thought so you would agree that the eight dollar eight hundred and eighty dollars was paid in april two thousand and fourteen my recollection is that it was it was paid after that but if the board is correct it was it was in april if the board was correct and this is suppose it agreement happened in december of two thousand and fourteen right right so  the pension protection act doesn't that bind delta to accept or adopt a rehab plan well st the pension the p p assumes that there is a valid underlying agreement which is not accurate in this case because again yes it is because until there was a while they were negotiating the next one there are the terms of the prior one act in place but there's no well  that at the expiration of the agreement the parties will sit down and negotiate for a change this contract expired in two thousand and fifteen it didn't expire in two thousand and fourteen we don't know the basis for these additional payments we don't know where the business agent came in and said you gotta pay these and you have to pay them now or if they said pay in now out and i'll take you to the ball gets so you just agree that you're eight dollar payment what about the dinner what about the dinner that i think the position of the other side is you know they didn't talk about it and you know what that form was and that's what is wife implemented that form again you have to look at that form you have to look at respondent one in g c to the administrative law judge in this case said whichever contract applies is a question of credibility and yet she never resolved that contribution rate of one dollar per hour right so that means she did not find this new schedule a was part of the contract she if well if she didn't and then there's no basis for her decision but i thought you would agree with that yes but i page ten she she says that there was a failure to provide notice an opportunity to bargain as being the the issue but that's a separate issue the way i read it she found that the  schedule a the old schedule a the one hundred and ninety five was the one that was incorporated into the c p a not the new yes do you disagree with that it was always in c p a from day one right yes and she never resolve that credibility issue in the board never and as we said we point out in our brief there are all the factors point against that determination that there was a new schedule way but bitter but the reality is yale j obviously that a pension contribution obligations of been in quotes in force in a variety of circumstances absent a signature to a current collective bargain to grow well that's true but that's not this that those cases are it's distinguish trust document in our case there's no document in our case that requires that legitimately requires payment of these pension contributions other than r c respondents one in the in the trial below and  testified obviously robert sanders testified that they never that this so called schedule a which isn't called schedule way they say it was never in the contract and the union business agent said i don't know what went out i sent my admin send something out i don't know what was in it i don't know if there was a schedule a unit and then why did the company pay at the higher rate at some point at some point they were told to do that by presumably good morning striking the clock morning here on ars barbara schieffer the national labor relations board as the clock indicates five minutes is going to be taken by the union intervener council in this case so i want to clear over just want to take steps back a little bit because i think there's still a little bit of confusion the record is and our friend all the time in this case in terms of trying to figure out what happens i'm going to do my best to try to clear up some some of that because i think it's so relevant so there's a definitive we don't know what happened with the payments when the rehabilitation plan went into effect we know that an actuary in two thousand and eight determined the fund critically an incredible status we know then that there was a recommendation by the trustees of really two different rehabilitation plans put forward one of them ultimately went into effect that was the default plan that included both escalated rates and lower benefits for the employees the default plan went into effect we don't know what the record doesn't establish what payments the employer right what the schedule a but ultimately to schedule a comes in writing that still becomes relevant is that before that right and what we also know is that we know that when the employer stopped pain the escalated rates that happened in march two thousand and sixteen we know that the pension fund issued a letter to the employer letting you know its last payment of march was significantly lower than what was required under the rehabilitation plan we also know that the union filed a charge for under payments to the fund so even though there is no record evidence for what was happening between the time the rehabilitation rates went into effect and april two thousand and fourteen the fact that there isn't despite the subpoenas that were issued and despite the relationship between these parties relatively amicable but are as valid as despite all of that the union doesn't file a charge on this issue at least between two thousand and eight and march two thousand and sixteen and there's no evidence of any letter from the pension fund to the employer saying it's not making its payments so we have a good question i have then so you would have to agree that the course of conduct is not evidence of a schedule a contract being there being a meeting of mind that there were bound to pay that what we have there is this is the schedule way that comes in and you're right comes in after the be a contract to sign and that's coming in in december comes in december st right so the schedule that i don't know if your pitch is look the same as mine it's the st column left column there's a paragraph that starts the record evidence establishes yes go ahead ok the record evidence establishes that the expired contract both requires responders to make contributions to fund and that's in the amount of one dollar ninety five cents at that point as well as make appropriate surplus contributions right to make up the unfunded liability look at our forty she makes that determination based off the rehab plan being binding not because they incorporated the schedule  oh i'm sorry maybe i misunderstood your question i thought you were saying there wasn't any evidence from the l j at all that or any finding from the l j at all that there was that they were bound by contract to do this i'm sorry if i misunderstood your question rehab act or something else but it seems conclusion i just and that's my nd question what's what difference does the board have to give to the findings on a finding like that i think that's a legal conclusion of the other not schedule a's incorporated that's a legal conclusion well it's an interpretation of a contract so her factual findings would be due deference but i think the ultimate legal conclusion to say that something because you're defining the terms of the contract right so i don't know i know right i'm not sure i don't know is the board doesn't grapple with that so i'm not sure if the board viewed that as defer it certainly didn't they couldn't have viewed it given the way that it's written it could have you did as a factual determination because any time the board is going to disagree factually with an l j you'll see a disavow you'll see in a foot a more reasonable thing is the board looked at what she said and she says you're bound by contracts and the board by the rehab that's different than saying you're bound by schedule a you're bound by the contract to the extent that section eighteen point four contemplates this exact circumstance so i think a reasonable reading is also and the board should be due deference on this the reason we're reading is also that they're at the board's decision is actually not inconsistent it might be fleshing out more of what they needed in terms fleshing out more of what very view of the case was which these the cases don't require that the level of detail decision that the employer is suggesting that the l m r a here does that so we have and this started off with judge wordless questions at the very beginning with what are the what can we all agree on and we can agree that the parties agreed to create a pension fund in the two thousand and eight agreement we can agree that the employer was painted one dollar ninety five cents into that we can agree that the employer recognise that if it's under funded the trustees have to do something and that that that is a complete three o two c b fifty five dollars be compliant fund because the employer to be clear the employer would not be pain the dots it i'm not comfortable i don't think saying what the people as the but what the board does is the board says that they they look to the p p a to bolster its findings so i don't know that the board of the board doesn't rely on the pension protection act it uses it to bolster i think that's in fact a very terminology that it and it's under the employer's view if it had to sign off on every income incremental increase to keep the plan functioning yes that would violate the mandate of the p p a the board does fin ok certainly good because the board finds that the the c v a on its own the c b i through the eighteen point one and the eighteen four that on its own that that is a document and the law supports this that that is a written document providing the detail basis upon which payments could be made and the board very firmly takes the position that to go the extra step to say and on top of that any time you need to increase payments you have to come back to us for another detailed written assent to that so i would say even if this court think that that change i think the board makes clear that that doesn't change the analysis because the contract itself one thousand eight hundred and eighteen four and the conduct of the employer is going to get you over the line in terms of showing that there was a written basis sufficient under the m l r and not the inflated mean looking at him he didn't look like the morning david rosenfeld for the union to kind of p p a does not require delta to do anything because if p p a applies to the pension plan which are separate entities what happened in this case is not unusual they'd have to implement our program to protect it from the declining industry and eventually the lack of contributing players so agreement says you employers all he or party agree that the trustees acting as they normally do will establish a real the rehabilitation plan which i'm for she meant very heightened pension contributions to deal with the fact that we now have virtually nobody left in this plan b a was the last standing ship repair company nothing left so the last stand ing contriving ploy or at this point of any small size i believe is delta and and so what happened was again p v a didn't require delta it imposed a burden on the and in and councils corrected and record to seventy want to seventy five there's a list of contributions and it shows that the heightened contributions were made by delta at least as of april of two thousand and fourteen so they were well aware of it abided by the contributions but let me just say there's a reason while this is going on that i think is implicit in the record declining industry delta is a very specialized contractor sandblasting the marine vessels it's a very difficult specialized role and it's major contractor was be eight so what happened was every time the delta would get a job would be a they just pass the cost through to delta in fact the prior contract required delta required  subcontract only to employ the paid the same wages and benefits that changed in two thousand and fourteen but apparently the record shows that in december of two thousand and fourteen when jose santana went to the employer mr sanderson said look i need you to sign the same agreement he expressed he said i need you to sign the same agreement that be a just agreed to in the summer of two thousand and fourteen the extensive negotiations and mr  friendly to the wages not to the pension now it says the transcript says expressly to wages and benefits so now there's a transcript which is at most two bargaining negotiations but the reason there was no fight was because he knew that he passed it through to be a and remain a contractor for at least a period of time and then in two thousand and fifteen he begins negotiating his own agreement moreover person went to its article eighteen dollars responded agreed to instruct the trustees and so on and develop a plan and then the next paragraph refers to the increased rate so i think she understood that in volved the document prepared which if you go back and look at the two thousand and eight to two thousand and fourteen looks like it and looks like the subsequent agreement n b a so what he did was he just took the same spreadsheet manipulated a little bit to add the increased health and welfare the effective date from july two thousand and fourteen which was the effective date of the be a agreement to december of two thousand and fourteen mr santana said yes so if you look at the excerpt record one for the top there's a little initial jose it and i'll point out that the comparison will it doesn't make much sense that the company would have signed it but why do they need to because this was a benefit to the company to give a later date and that document in my view was kind of critical it shows mr santana honor i'll be very brief st of all of course it was n n r d's burden of proof to prove that there was a mutual assent as mowgli requires as the circuit requires a mutual assent to increase the pension contributions that was not done as section eighteen four refers to a schedule a schedule a there's only one schedule a and that is in respondents one and a net didn't required delta to accept the rehab plan