may please the court yako for off for the new york times company i'd like to start with the threshold issue of whether the times partially withdrew from the pension fund in the st place and the dispositive question there is this sort of narrow and almost one off question of whether the times contributes to the fund based on shifts or based on pay and here's our basic point about that when an employee works a shift and is paid a wage for that shift it's impossible to tell whether the contribution that results to the fund is based on the shift or based on the wage because the two go hand in hand one is just a function of the other so in order to determine whether it's the shift or the wage that is giving rise to the contribution the court really practice the folks who implemented this did they not used shift method no your honor i thought the testimony was that that's how they calculated over the years i'm not sure if you're i was referring to in terms of implementation whether you're referring to the people the times you made the contributions or anyone else the there's actually no dispute between the parties as to the contribution obligations meaning how much the times of those in a particular situation the question really in the case is about how to characterize the base for purposes of arrest so it doesn't actually have any practical implications for the calculation in the course of figuring out how much is owed there there needs to be a methodology and right so so your honor for ordinary shift based work there's no difference because you're either taking eight percent of the wage of the pay or you're taking eight percent of the per shift wage multiply it by the number of shifts that doesn't result in any different number at the end of the day so that's why my what i'm trying to articulate is in order to determine whether it's the shift of the wage that's making the difference you need to look at the few situations where those two things are are not linked and then you can tell whether the contribution follows the shift or follows the pay itself is phrased in terms of shifts i mean if you're correct why does it have to make any mention of shifts at all we're on of the there are different parts of the c b a the allowing obligation to contribute to the pension fund seems critical and it refers to shifts why is that even necessary so you want to just to be clear there's a there's multiple parts the c b a that bear on the pension obligation the language that relates to the obligation for ordinary shift based work has three components to it it refers to eight percent the pay rate bush if and the number of shifts and the problem here is that contemplates to two factors a base and a rate as with the problem we have is whether we can combine the  two aspects of the formula or the nd two aspects of the formula in applying arista now and there's no question the c b i could have been written in a way that would have made this an easier case it could've said eight percent of wages that would have been easier that would have brought together a number of the different i'll follow up on judge carney squash yeah that c b s the publisher shall contribute eight percent of each employees pay rate per shift so with the language explicitly references a methodology based on shifts your honor it's eight percent of each employees pay rate perceptor the perry perceived as a dollar amount per shift for each shift work by each employee right if we take a look at how many shifts there are right and if you take my own language here it seems to me a need to look at how many ships there are in your honor that's you have to be yes that's true for shift base work our point is if you take eight percent of the pay rate push if multiplied by the number of shifts you are that works out to eight percent of wages now i realize this language any any unit is going to turn into wages in the end because we don't get paid in which it's well that's true for this provision and that's why i keep turning back to these other situations like workers compensation and the foreman because those are situations where the two are not linked but all that are covered by those are covered by additional language so so if you have that doesn't really impact the analysis on the st part that is for employees in the bargaining unit it because there's a separate sentence that deals  with workers comp that's that's correct and in order to determine what the contribution base unit is but in terms of analyzing the st sentence it's not particularly helpful to refer to workers comp because that's covered by the next sentence and you're on our point is the  sentence standing alone is indeterminate about what the rate is versus what the base is because it can be articulated in two different and equal ways but even the cap is also articulated in terms of shift the cap is not in excess of five shift that's right which is the overtime and so it's either non overtime shifts or non overtime pay that works out to be that works out to be the the base i don't think you're wrong when turn on a receipt of the fines it to turn on the the globalization to contribute and i think i don't want belabor this because i have to move on a move on to the nd issue but i just would say the fund doesn't have an explanation for the workers comp obligation and the foreman obligation can be articulated in terms of shifts it's just they can't there are eight percent of the worker's comp pay their eight percent of the foremen salary there is no shift based account of those obligations and that's what we estimate of anticipated experience in here the actuary testified that her best estimate was seven point five correct and that's what judge sweet relied on in law is not wrong now that's right we're defending that ok so we are point is the seven half percent is the best estimate that is what she testified she testified that the siegle blend was lower than her best estimate of anticipated experience that's page one hundred and ninety six dollars of the if that made the determination that it  was reasonable actuarially reasonable to apply a different rate for the minimum funding liability than for the withdrawal liability correct she didn't judge sweet focused on the best estimate language actuary in assessing a different rate for him with minimum funding liability from withdrawal liability and that's and even though there's some language in concrete pipe that suggests that a different arguments one is the concrete type argument which turns on consistency and i don't think it's fair to say the court has suggested it the court said that the interest rate must be used for other purposes as well and that there is an aside to be had it's was still talking not about what must be used but about the restrictions on arbitrary exercise discretion by the actuary in distinguishing that from the trustees it's like why the actuaries aren't  subject to the conflict charges that the right in the quote have been courts and that's right in the court said what keeps them on assist is quote the necessity for applying the same assumptions and methods in more than one context and then specified minimum funding so that i think i think the supreme court decision is is clear that they have to be the same but apart from that and the other restraints that judge suite focused on is the statutory requirement that it be the assumptions not only be reasonable but also reflect different estimate of risk and is appropriate in light of the differential purposes between minimum funding liability and a single withdrawal payment you reject that well that's the actuarial theory an actuarial actuarial theory that doesn't comport with the statute so you say that unlawful correct and that's what this court said and walked hell where it said that factoring in a discount for conservatism after an actuary has arrived at his or her best experience under the plan in any way blended them together in order to get a reduced rate that had the effect of a thirty three percent inflation of the liability and now if i were to say that it seems to me that different risks  calculations might be appropriate given the different functions of the two funding requirements and as reflected in longstanding practice applying the siegel planned so what exactly in the statute makes that unlawful so the statute requires that the method of getting there for withdrawal i believe as for minimum funding that statute is telling the actuary what she is supposed to be measuring now she has a lot of discretion and how she goes about projecting that these projections are not scientific there there's a lot of discretion day this is what the statute says the actor has to do she admitted she didn't do it it had a thirty three percent increase if that does not make the assumptions unreasonable in the aggregate it's hard to see what would look at the statutory language it says best estimate of anticipated experience under the plan isn't that broader than expected returns well it's broader in the sense that that provision that language it governs all of the assumptions so it's it depends on which assumption you're talking about if you're talking about retirement age we're supposed to project what age is are these people going to retire at the time of mortality we're looking at how long do we think they will live if we talk about interest rate then we're looking at what is the return likely to be that the plan experiences and in fact that's what that's how the actuary herself interpreted the phrase that's why she admitted she that she had gone below it below the anticipate experience under the plan that's even what the fun's expert admitted because he said in his view we should be adjusting the honor i mean there may be a situation or look there i think that i think that this report left open the possibility that maybe there would be some situation in which it could be justified but here saying the statutory language doesn't permit it so i mean the implications of your position i think are that for twenty years twenty five years however long the siegal plan has been used by hundreds of multiplayer plans that that has been unlawful i do agree with that i also think that the district court's opinion was narrower in the sense that he really did focus on the testimony in this case and the actuaries and your friends and their position is no the statute doesn't permit it i certainly country i certainly believe that is true i think we still win regardless because of the particularly was said previously the contribution obligation for worker's comp is in the same paragraph as the power in the collective bargaining agreement that sets out the contribution obligation being per shift and so workers comp is covered by the pershing eft the per shift obligation now it is true that the the contract talks about shifts worked and but there has been an extraordinary amount of testimony including the annual the annual add orders report about shift work included because of other provisions in the collective bargaining agreement shifts that not were not work but for which contributions were necessary how we deal with the inclusion of salaried workers and the workers comp payments where there were no shifts work how does that fit into here because the way the contract is set up like many other collective bargaining agreements the when conditions of employment generally particularly the salary but other terms and conditions of employment are made outside of the collective bargaining agreement they are made between the new york comics which is the collective bargaining agreement about the form and there is reference to the form in the collective bargaining agreement and since section six and it talks about form and it talks about the shifts they worked they work and it talks about night and day shift there is also in the collective bargaining agreement in section six it talks in a different part of section six it talks about the foreman not working more than a certain number of regular days or regular nights in the collective bargaining agreement a regular day or regular night is a shift as defined in paragraph five of the collective bar you agree one of the the arguments made by the times is that given all these different shifts it's difficult to make the calculations well they've been doing it this way for decades and those calculations have to be made in order for pension credit to be award because pension credit is only awarded per shift and so every contribution that comes in even the one for the forem that based on salary even though the the contract talks about the form and working shifts must be converted into shifts so that pension credit can be provided and that's not  unusual among pension plans where you might have some either union folks working and participating in the pension plan or have others even some management people working and participating in the pension plan and you say that's the way it's been done for decades that the folks who actually do the numbers do it by looking at the ships absolutely and there is an enormous amount of testimony involved a newspaper l d r e o and the question was how do we determine whether there is a partial withdrawal and the single folks who were the actual race said in order to do that you've got to look at it we've got to go back and look at the contribution base units now there's some disputed testimony about where the new york times representative who is a trustee of the phone was at that meeting but the reality is he signed the minutes of the meeting that specifically said in order to calculate a partial withdrawal liability we need to have the contribution base units in all as i also mentioned the ordered financial statement since two thousand and four talks about shift work and not work that is that contributions are due for both there's even a letter in the in evidence from a former times director of labor testimony that her past asked them an anticipated experience was seven point five percent so how do you get around the language well that was half of her testimony and that's it's unfortunate that the judge in the district court decided to cite that as her testimony because the reality is her chest says it several times she says seven and a half percent for calculating minimum funding where it was important to look decide which is well i think what you were we need to focus on is that she said for doing which wrong liability calculation her best estimate is using the sick siegel bla for doing a calculation for minimum funding her best estimate was using seven and a half percent the single blend yielded as a result six and a half percent and the the reason that she is able to have two best estimates is that the two calculations are for two different purposes and when you look at the actual standards of practice particularly twenty seven  you see that the actual is supposed to take a look at the purpose of the calculation or phrase best estimate of anticipated experience under the plan doesn't identify for a particular purpose it just that that one phrase that is correct but it's used in two different in two different sections of a research two different not only different sections but two different parts and two different titles and for two different purposes and there's supreme court case law that we've cited in our briefs that talk about when the same or similar language is used in even in the same section if it's used for different purposes all of the assumptions in the aggregate as if so you're saying the actuary has a different chart with regard to funding to calculating minimum liability for many funding levels and withdrawal liabilities and the reason is that they're  measuring two very different things that congress recognized that and six other they used the same statutory language well they did put it but it's in there for different purposes and in two thousand and six they in fact change that language and it's also interesting that the times is depending on this argument that the the assumptions were incorrect is a matter of fact because they refused to let their expert actuary testify as to whether six and a half percent which was the effective rate after the application of the siegel and was an appropriate appropriate assumption because they said their argument was based on based on the fact that the ritz had to be the same and it is also telling when you look at the statute there is no n discussion about no mention of long term investment rate no mention of investment rate or anything of that sort is a very uses very broad general language to permit actuaries to testimony and this is  and ninety six the wrist the question is the resulting effective investment return assumption by applying the siegal blandness lower than your past ostomy of the future anticipated experience of this plan over the long term and in the actual answer was yes and it was in the context of talking about the investment return on the portfolio that the plan had and that's not what the best clear that her best estimate for troll ability purposes was something different than her best estimate for minimum funding purposes and we also have to take into account that what the times failed to show is that a reasonable actuary would not use the single blind in this case or other cases that was its obligation the presumption is in favor of the funds calculation and that is concrete pipes set out in its opinion very clearly that the burden of the employer is to use her best estimate of anticipated experience under the plan that's what the statute requires and with a reading of the transcript that you just had that she was speaking about best estimate one circumstance that the stat that the question literally just use the statutory language that was the quote of the question was is this lower than your bathroom was the context withdrawal i don't know the question the question was about you know the question was about the siegel and we're discussing the siegel and the question was was this is the rate washing was back is where the question was phrased in terms of the statutory language and the siegel blend right and they are ninety six yes washing is not in the context of withdrawal yes yes that was what they were time of the siegel and that was what the question was about she only uses the siegel and for withdrawal i build in the question notice that when the funding when the funds council were st to it they refer to you is it your best estimate best estimate of what ok yes she thinks it's her best way of doing she thinks it's the great way to do withdraw liability but when you ask her is it the way that the statute tells you to do it she says no it's not she thinks it's a great way to do it there are there extra things it's a great way to do it it's not what the statute says and she admitted that what's your response to the fund argument citing the whacked out lipton case where this court said we believe the best estimate requirement is basically procedural in nature and is principally designed to ensure that the chosen assumptions actually represent the actuaries judgement rather than the dictates of planned  sponsors so we agree with that the test is was this actuary actually giving you her best estimate of and his paid experience in other words if we're not saying that six and a half is necessarily bad that's why we didn't provide any evidence on that six and a half maybe great if it actually came in and said my best estimate of the plans future anticipate experience is six and a half she didn't she didn't say that and in fact walk tell then goes on to say if you develop your best estimate and then you discount it to be more conservative that violates the statute and it violates the statute in this case in a way that had multi million dollar effect on the outcome that's got to be unreasonable in the aggregate just quickly on the c p u issue if i can and have thirty sac ok thank you for workers compensation and form and i think those are the two keys to the understanding this puzzle the workers compensation contributions are based on historical earnings they are not based on shifts if you look at the record that is clearly what it shows it's been undisputed the entire time for foreman the funds as foreman work shifts yes they work shifts they're not paid based on shifts and the contributions for their work is therefore not based on shift it's based on their earnings and that's why when you look at all of the obligations as a whole i qualify how many eligible for yes for pension for pension crediting purposes they look at their shi for pay and for contributions they do not look at the shifts they look at their compensation eight percent and that is why the eight percent of pay formulation is what reconciles all of the obligations