so in this place employees are told they're receiving a vacation benefit they cation it's all over the let it your it's in the twenty five twenty nine c f large section twenty five thirty dash two hundred b it's core cited in the briefs where the department of labor is empowered to say what an hour of this department of labor comes out with a ruling saying an hour of service includes vacation pay all of the sudden we have  it's i think that kind of flexibility running for cover that has a risk as well maybe it's not to be good on given the as far as whether vacation pay yes it could have been hamilton i had knowledge that it could have done but the history of particularly this particular plan or this employees the employees who are don't quite make a thousand hours to be recognized in terms of getting a year of benefit credit that's one way it could have been handled but it wasn't in fact that's why risk that came into being everything really could have been handled through him collective bargaining that really didn't work for example the ponce case that this particular defendant was involved in that involved collective bargaining but it was found to be it did not protect workers sufficiently and therefore a risk that was passed so that there would be some bright line hard edge rules  prevent forfeitures such as occurred in this case i would like to just add a few other so arguments that are not covered in my in the prefer i went through the br and it seems a lot of that has been covered very thoroughly one is the defendant's contention that there is a this is really nothing more than an involuntary savings plan like a christmas  club i just would like to add to that well in those kinds of plans when christmas comes around you don't have to take the money out so in a plan like this you get the money i mean so it's clearly something different than christmas  the second point i'd like to make as the that's really not cut quite covered is in the the defendant makes the argument that payroll taxes will apparel taxes were paid at the time that the employee received a paycheck but you'll notice that the department of labor regulations makes no reference whatever to payroll taxes although they could have so it seems to me relatively clear that not having said anything about payroll taxes it's really not an important issue as far as the department of labor regulation  for not having provided pensions more in line with what the point of council would appreciate it's another matter to provide those in the real world in a competitive world where your competitors don't have the obligations to provide pensions don't have the obligations to provide vacations and unions negotiate on behalf of their members to impose what benefits they can get for those members for forty years this industry has provided vacation benefits in this fashion a spendthrift trust where the money is treated as taxable to the employee for the hour work he then gets it back some time later out of the  and the hours one of mr came into effect it said nothing about this issue it left or the department of labor the task of defining what the vacation what the hours of service are and it was the department of labor who issued these regulations and for thirty years nobody has challenge to this interpretation in this plan or in the other plans around the country that represent tens of thousands of employees and thousands of employers and the industry has as the brief of the national coordinator committee for multiemployer plans sets forth in great detail the industry has role on had on the characterization that the short term well if he takes vacation and his employer gives him vacation and in southern california because of the temperate weather there are employers who employ construction laborers year round regular crews and they will actually on an individual basis give vacations and pay for those vacations and when they pay for those vacations they are obligated to make a contribution to the pension trust for that hour of  record discusses and he's the head of the southern california district council of laborers the the union and it was it was the union who asked for the account in the goshi haitians and it is the union who determines how much money gets put into that account the union is the representative of mr mora and his people he has benefited from the union representing and he doesn't want to be burdened by the policy choices that they made and the policy choice they made was we're going to create this set aside account so that guys will have some money on hand that they get once a year and and depending sometimes it's been twice a year through the history of it but  they will get a distribution and we call it a vacation because it's that's how we used it in negotiations but it never meant that the employer was providing anybody a vacation it was that the union had this spendthrift savings  between the union and our members when they come to that i mean i can tell you that if the if the rule were were as mr weinstock proposes that there probably wouldn't be a vacation contribution because employers would say the employers four cents since nineteen eighty have strictly limited the ability of the pension trust to control to create liabilities they certainly prior to nine hundred eighty all the way from the inception of the plan the employers pay great attention to what the liabilities were that the pension trust was promising because they're responsible for those and they are they cation trust is not something that they've ever been concerned about it fills up every year it gets emptied if the union wants to put money in there fine if the union wants to put it on the paycheck find they don't care it's of no consequence to day mr moore asked for it to be a one hundred million dollar consequence and it's simply it was never the case now he's argued by the way i wanted to address this that the that the estimates of the actuary between if you look at the entire if you look at the apartment of labor regulations every example of the department of labor as to what does as to when something is treated as vacation pay for which  an hour of service must be awarded every one of those has a taxable event at the time of her seat not at the time the hour was worked that generated the way and in this case that's exactly the case it's that he would be was taxed on it at the time that he worked the hour it was compensation for that hour in mid contract three year union negotiations in mid contract if the union wants to take money out of there and put it back on the wage they've done then over the years if they want to take money out of the wage and put it in a vacation they've done that over the years so it's it's always been the employee through his representative who decided how much he put in his christmas club and that's basically what it is it is a christmas club account however you dress it up the name it is not a they cation benefit in the sense of somebody being paid for taking vacation time parties agreed to it yes absolutely it would be binding and there are plans there are pension plans around the country that have less than a thousand hours as the as the cutoff but that's but that's part of the problem here because they've done that over time at a glacial pace as they could determine that their funding could handle it and in exchange for giving a lowered eligibility requirement on the number of hours they don't give us higher benefit or they do you know they make some other adjustment so that they're able that they are able to to come up with something that works that they can pay for let me put my question either way if the parties had agreed on such a plan or how ours are to be credited you don't see anything in that approach of labor regulations or the language of risk that would prevent them from treating something and paid under a vacation trust  as a credible power no i do not and in fact in the in the your argument in the record doesn't do that that's right and in the record there is a there is reference to a maritime plan that does that as a result of the hundred fifty five arbitration award and the practice of those parties in those bargaining parties afterwards they don't have to credit vacation where they just do it that way and this this this agreement silent on how that's how those r s have retreat d right well no i don't i don't agree that that's the case that the the trust agreement says it's the employee's contribution not the not the employers and the practice has been consistent since it was created then ok well i guess of my questions maybe we are communicating earlier if you had a collective bargain agreement such as yours which grants plainly the employees contribution nothing players contribution but the parties agreed that it was going to receive certain credits whether it's a thousand are they hire now whenever you toward eligibility for planned benefits of any tie your view is that is that the parties could do that and be not allowed to make contributions into this plan but under the law you can and you can do that so there would be the issue i'm not sure that if you did it that way that that the parties if it with the advice of counsel would still treat it as the employee contribution they might funded a different way but they but because there are consequences to having the employee self contribute to a plan that that kind of can complicate the administration of the plan so i guess i'm getting at is that your argument is essentially that look you you ask us to look beyond the label and to what the reality of the payments are and how they're withheld and how they're paid out and  if i understand your answer correctly and i know i'm just getting hypothetical that even though we have that label that then they can express their if you if the parties agree to put a different label on it and accept the collateral consequences next to that they could do that yes now and the and the and this this plan is silent has to that is were they could do it but i'm not sure that they could do it in the way that we did this plan in other words they would they might they might treat they might treat it from a from a from a regulatory standpoint they might contribute the money in a different way than the way this plan a struck that was i guess i was leading to my that's when i started the initial questions if you took your plan and the party just said well we're going to parties agree to assume whatever clotho consequences that might happen the reason for my question is if it's if it's if you can label it in this this plan is silence then it's not impermissible we just have to look at the to see what it does and see the construct is right well they separate the regulation the issue in the regulation then as is this payment for the our work and we believe that that with th structure it is very clearly for the our work to have this kind of contribution count toward something that you would give credit when you need to restructure it so that it was clearly not for this  worked it would be a separate payment for the for the on account of the power that has that is going to be taken off at some future time or you would and actually there are some other ways to do it but right i understand what you're you're answering is how you could do it my question is if you if you took your structure just parties decide to put a different label on it with that passed muster on the asco as precisely structured here no i don't believe so because it's the different set of calculations year after year after year after year and that result is that that the church short term construction workers don't get a vacation time in the same why in the long term construction workers and their wrecked correct and if you're a n case being alleged as constituting as this trust as a collective bargaining parties mistreating anybody in the in the bargaining unit all pension plans in the early days started out with very lengthy vesting because you were phasing again benefits to people who had worked in a workforce that had no contribution come in on them by contributions coming in on current people and you could only there wasn't a big enough pie to really do something and that was all a choice again that was a political decision among the union and its members of which mr morell was one and they came to the bargaining table with that structure and the employers  worked with them to fund those plans so sure in the early years the qualifications were harsh they had they you know this planet promised eight hundred million dollars worth of benefits at a time when it had two hundred million in the bank so you can't do a whole lot with that now as the years have gone by has it followed the changes in the law of course it's not just that the law did it i mean those vesting periods would have come down it's that the funding mechanisms got into place so that benefits could be offered and certainly no union is is going to want to disadvantage a majority of its members i just you know that's just an improper analysis of what the legal issues were back in those days here i think in the brief i've done a thorough job of discounting that but the bottom line in a situation really like this is that pension plans are really nothing other  then taking off and taking from peter to pay paul it won't cost the pension plan anything all it really means is that the funds will have to be real reallocated if the court were to go with the plain sway then really all that means is that mora and people like him will get more money and that people who down the road who are receiving their pensions may get a little less money at the same rate of contribution that now exists so that's really what a pension plan amounts to now maybe they won't like that and maybe they feel that they will have to raise the contribution by employers maybe who knows second point i'd like to make is that whether you call this a christmas quad involuntary savings plan or you call this a vacation benefit it is not just a label it's not a label in something like this employers want to be able to attract construction laborers by saying hey we have a vacation benefit eighteen dollars an hour plus we're giving you an involuntary christmas club program under which we're going to take money out of your wages and we're going to put it into a club and come june or july or december we're going to pay that money back maybe you won't get it back to is that exactly what happens the wages are with put into a trust that's distributed under a formula and you may or may not get anything but it's the action from wages it's not an added benefit from the employer but that is that the idea of it being a deduction from the employer that's the way it is shown on the check as a deduction and that is the way that it was set up but nonetheless but contribution from the employer it's an employer contribution like it or not the fact that it ends up on a pa and then the formality as it's put into something called a vacation trust does not change the fact that it is an employer contribution the employee has really no say so in fact it's somewhat patronizing i think to tell construction laborers you guys can't save any money so we're just going to withhold it for you and pay it you know at a different time of  other employees you're not going to get a pension credit for these funds that's not that isn't specifically in the contract it might be implied when you read the contract but it doesn't specifically say employee this vacation benefit is totally non comparable against any pension so i think it does make a big difference how you label something minimum i don't know the information but but i would be willing i would say that he probably worked for it maybe or ninety employers doing it during his career at least from my experience and i've able to do it enables them to give a vacation benefit which an individual employer might not be able to do the fact that they get a vacation benefit seems it should fall from the that they're going to receive some pension credit let's say for an employer for an entire year let's say let me give you that example of a employee who works a long term employee works an entire year gets his weeks vacation and then gets an additional payment from the vacation trust that would be a double counting situation i would concede that it would be the i don't problem with that analysis i think here you know that remember if you study the plan documents you don't get any more credit than one thousand or at the most twelve hundred dollars you only get credit up to five hundred dollars corey for i understand you see what i'm  benefit credits or vesting credits and another employee only gets two weeks of vacation maybe because they're in a different classification and that's that's the way the chips fall right right that's correct so what we're really saying is the short term employed here it should be given some vacation credit for this time that is designated vacation pay