our second case for this morning is midwest operating engineers welfare fund against cleveland quarry and associated cases required to continue contributing to the health and welfare and pension funds based solely on the terms of three collective bargaining agreements that the certification rendered void as a matter of will those are really now it's more toning relevant only if the employer can assert that it would be unlawful to make such payments after decertification i don't believe so your honor i believe that both shelly and gerber truck are not only distinguishable from this case but actually support our position in this case with regard to the shilly decision this court held that the certification is not a categorical or per se bar to a union's ability to call our joint fund's ability to collect pension and health and welfare payments due under the terms of a collective bargaining agreement surely was wholly based on the participation agreement a separate side agreement your honor in fact why does the fact that it's on a separate piece of paper have such significance to you it has significance your honor because that separate piece of paper was not rendered void by operation of law will see we would have to agree with that proposition i don't think that th was void either void at the nissho it ceased to govern the relationship between the employer and the employees through a union and that much is clear but the word void is is i think an extreme order to you is i believe the void is the correct term your are under the deck of a decision in this case it was your when this case the collective bargaining agreements at issue were between the union and the employers sure but they normally are absolutely right on some cases or associational agreements as well so every so one of the arguments your opponents make is the following that at the beginning of this particular collective bargaining agreement you have to be a five year agreement the funds are making actuarial plans they think that there's a five year stream of payments both in the welfare benefit plan and the pension plan they're going to be coming in and you know they they can see that at the end of the five years it is given the decertification this relationship is over they were planning on anything beyond five years  i'm i understand the funds to think that they have actual obligations to these employees under both the welfare plan and the pension plan out to the end of the five years because of the way the benefits law operates so even though the union isn't the employer isn't paying under the union so on the plan still have to pay and so getting moneys in makes a difference to i think that that that's incorrect for two reasons or are the first reason i believe it's incorrect because as a matter of law this is twenty six u s c section four eleven a four g when employers are no longer obligated to contribute to the fund the funds are no longer obligated to provide the ben i just reposes the question doesn't it because we're here to say if the employers are continuing throughout the end of this five year contractual term that that's true your honor but what happens to the money you  what happens in the money well in terms of the money around or if you're referring to the contributions that were made martin but if you're referring to the contributions that were major honor the health and welfare contributions that were made prior to the decertification went to provide health and welfare benefits to the employees up to that point then the employers took over that obligation enroll the employees in the employers home health and welfare if your honour's or frankly the pension payments the pension payments went to divest the employees with pension rights under the phones  now i'm looking at this action of the collective bargaining agreement which says the employer's responsibility to make a contribution the welfare plan shall terminate upon expiration of this agreement so there puts th money in the plan presumably even though the employers no longer make contributions and i just wonder what what happens to that money well if the money in the plan goes to cover benefits for all of the employees covered by the plan not just the three employers that issue your honor and i believe that the phones position is incorrect on appendix pay you're trying to answering my questions are what happens to the money that is in the plan all the money that's in the pan plan as far as the pension or are went to pay for the vested benefits of the employees covered by the plan they remain vested under law cording to the best of schedule and so actually that leads me to a related question i am completely confused that nobody is talking about withdraw liability in this case because it seems to me that if we were to follow your logic through to the end then at the date that the decertification becomes effective you have withdrawn from the multi employer plan and the plan would then assess withdrawal liability against you because it's well established that when there are these vested rights one has to  put the funds in the plan it will be enable the plan to meet those tested rights that's exactly correct if you received a request for withdrawal liability we will not receive a request for withdrawal i build in till this court determines when the employers with it's really in some level it's just a debate in some instances over about four months up to a year did you withdraw on the date of decertification or did you withdraw at the end of the five year term of the c b a which is what judge pos referred to yes yes shop and so we will we will receive assessments for withdrawal i believe the funds just have been unable to issue those assessments until this court sets the dates of the withdrawal so the funds will not be cut short in that regard they will receive the withdrawal liability to which they're entitled but it's not at all clear that your it would be unheard of for employees to have two different sources of medical coverage for example of his all the time then people argue about which one is primary and so forth so your assumption is that this language the judge closer referred to refers to the decertification day where is that sort of straightforward way to read the contract might be that terminations date means determination dates specified in the contract i believe that the terminations date meaning the terminations date specified in the contract but i believe the decertification national labor relations board process makes the contract void terminate the contract as a matter of law or well but right so that's again back to this debate what it clearly does under our gerber truck decisions under lots of other circuits decisions is it ends the relationship between the employer and the union and it ends the unions ability to serve in the workplace is the representative the lawyer of the of the employees but what this is not a simple bilateral relationship and we have we stressed in our other decisions that the funds are in a different position and whatever happens over on this side may not carry over to the relationship between the funds and the employees for whose benefit they were created a gerber truck there are basically stated that the funds are holders in due course of the collective bargaining agreement instrument but i think the gerber truck also stands for the proposition that a holder in course is bound by the language and takes no greater rights than the parties to the contract and lives but to the contract not to the labor agreement to the arrangement for benefits pension and welfare but it isn't no one's talking about how many hours you have to pay or how much vacation you're going to get or what kind of grievance procedure there's going to be or all the other things that collective bargaining agreements deal with the fund and under riseth has to be the case is operating under a different set of laws and that's true your honor but in this case one of the central tenets of a receipt is we take contracts as we find them and i think that that's actually a connection to the second issue on appeal which is under the plain language of the employees whose employers are covered by them and pension benefits from players whose employers are covered by them so am i wrong if i think that what gerber truck tells us is believe you're quoting the decision correct there i apologize if it sounded different but i believe that loss of majority status and decertification are different things loss of majority status is an affirmative defense a fact based affirmative defense that can be asserted by an employer decertification is a legal process undertaken by the employees and certified by a government agency the national labor relations board there is no factual argument over decertification there is no need to go into the what happened in the certification what gerber tried to do a practical difference to be sure but it's not really a substantive difference both it's just a way of of saying very clearly that there is no majority support for the union because there was a board sponsored submit to a pension fund documents promising to make contributions on behalf of all employees understanding's and practices that would prevent enforcement of the writings between the employer and the union also defeat the funds claims that's from gerber truck at page eleven forty eight hours in this case decertification is neither an understanding or practice the certification is a legal process by operation of law it is not initiated by an employer it is not an affirmative defense to contract what it is is it's a situation where the contract is rendered prospectively void as a matter i think that also for going to focus on contract language the district courts are inconsistent in the way that they apply contract one on one hand they want to apply the a nation of the contract as written but on the other hand they attempted to rewrite the contribution obligation the language if you're focusing on that under the terms of yes i mean this language just has a i was just going to warn you that i may not be able to see it that void they're no longer receiving wages under the terms in fact the employers pay them a different wage rate following decertification in addition to that the agreements define the terms employed to mean any employee covered by this agreement at the point of  certification no there were no employees covered by this agreement gerber truck stands for the proposition that in a recent cases we take contracts as they are written and that you can use defenses to change their right essentially that's united states supreme court law and it's also the circuit's law if the court accepts the district court's opinion what will be happening is we will be so essentially emitting those words omitting the phrases under the terms of this agreement and covered by this agreement we will be rewriting the collective bargaining agreements and under reso that's exactly opposite for the purpose as a resistance for certainty of contributions with regard to what's written in the agreement and so the district courts allow the funds to have their cake and eat it too in this case the district courts and force the terminations date as written but refused to enforce the contribution obligation language as written as a result that was error in the district court should have done it the bottom line question under your interpretation of a level forty five it's the only available defense that the payments would be unlawful if in what circumstances and other words would the decertification of the union impact the analysis i don't believe any circumstances your honor under this court's decisions and gerber truck in chile i believe the decertification it's very clear is not a defense to the obligation to contribute the court says that repeatedly in gerber truck the court does describe it in terms of the loss of majority status but i think it's important to remember that the certification the election process that the national labor relations board administers is one way to determine whether a union has lost majority support but the bottom that's  one of the mechanisms and it was the mechanism that was applied here but the cases say over and over europe a truck at least three times says that the loss of majority support is not a defense to the obligation to contribute but what sense does that mean i guess the part of the argument that i would like you to focus on if you would for a minute is that the argument that mr march home was discussing toward the end of his present taishan namely the language of this c p a because if you were to read gerber truck and chile as not quite the absolute statements that you're talking about that really saying in these particular arrangements we don't see any reason for that change to make a difference but maybe there could be other agreements with other provisions this c v a says that the employers are obliged to contribute on behalf of employees who are receiving wages under the terms of the agreement so how do we understand that phrase employees that were receiving wages under the terms of the agreement the district court's thought that was just a way of talking about the employees  these employers but it's a needlessly complicated way to say that after decertification their wages are not determined by the c p i any more right the amount yes your honor and they are poor would be free to actually having the same problem with both sides the answer to the question that's before is because if you take a position that one of the events that can cause the terminations of the collective bargaining agreement is in fact the d certification of the union pursuant to an election supervised by the board that happened and it happened after the three year contract bar was over as it had to but before the full five years for each of these three agreements slightly different times but let's just say sort of on the average a year out so if that's what terminations the agreement means then the employer's outlook ation under the c p a itself that you're relying on ends with the decertification maybe with notice of the decertification i don't really care which state that one if terminations the agreement just means what does it say in the agreement without regard to any external event then maybe you're right but i need some reason to give such little weight to decertification it doesn't mean that's part of our dispute or it does not mean that the contract terminated of i discern the spirit had to have a collective between the employer earth and the trust clones as the holder in due course perhaps as a third party beneficiary because there is a promise in the collective bargaining agreement and the trust agreements to make contributions to the trust on zero but the  agreement continuing after this and after there's only one party left it's not in agreement it's not it's not that there's only one party left around or the lot is that a plan to certification the union can't enforce it all to the trust funds up until the how going to collective bargaining agreement continue after one of the parties disappears because as a matter of law it doesn't that terminate it does not terminate the agreement as a holder in due course the funds are allowed to rely on those writings that so you say we're going to set jump over the union and go straight to the employer even though the union has fallen out of the picture yes your honor surely says that the trust  greater rights than the union has under the collective bargaining agreement that various if we're really not if we were not to agree with you with the funds be sending withdraw notices based on the dates of the but of course it says it does it says it has to make contributions until the contract expires in may of two thousand and fifteen that's what we enforced in the district court's decisions below it doesn't say anything about contract itself requires the employer to make catch or abuse the trust funds again separate legal entities that are administered jointly by employers and union trustees they have rights under that agreement that they can enforce until expiration that's what gerber truck says that's what choices so it's really to the trust fund agreements hundred actually the continuing agreements and there is a provision in the collective bargaining agreement that is incorporated into the trust fund agreement that you're trying to persuade as is is active somehow that continues the employer's obligation for this extra year so it's both your honor because  case is a careful reading of the cases shows that the contract did not extend not terminate was not voided the case that cited by opposing counsel in oral argument this doc would decision you have to keep in mind that a construction industry case under age half of the labor act that's not what these contracts are so the concept that you could void an agreement through an election only applies in a construction context under section eight of the labor act these are straight up majority status contracts that were started well actually decades ago the union establish the majority in the go sheeted five year agreements that there was a separate participation agreement for example so i could easily imagine if there was a separate side agreement maybe it would continue even if the underlying c p a seems to have force i don't think there's in shelly was really contends that although the decertification voided the nine hundred ninety four some of the terms of the participation agreement make clear the truck transports obligation survive that which is fine but certainly the implication is that only the pulp only the participation agreement unable the compan obligations to survive your honor i think the treatment of the court in in the allied stone case is instructive here if you read both surely of that treatment the decertification basically ended the union's ability to enforce either document either the participation agreement or the collective bargaining agreement there's really no difference between those obligations the back of there was a separate document really is irrelevant to the analysis the search meant that the union couldn't force it because the union had lost its majority support the trust funds can as holders in due course what didn't say things well the court did say that it that the do certification meant that the union couldn't enforce either agreement so it didn't it wasn't right it wasn't relevant because the obligation to contribute occur arose under either one or either the contract figure out what the contributions need to be for that full five year terms is not something they revisit every year i'm just trying to figure out what your reliance interest on this being side of yours is posted three years or four years well i think the explanation  contributions for the five year term a lot of that is is more immediate the welfare fund is a shorter term calculation but you're still relying on our contributions for five years because you're going to pay benefits for two these employees past the time of the certification if they're eligible they're going to make claims which they did snuffing as well so that so under that these terms even after the decertification the fund regards itself is still under let's say the welfare plan obligated out to the end of the c v a to pay say medical claims that people submit absolutely spake pay medical claims and then even more dramatic  so so there's a double dipping for the employees in this situation since they also got put under the employer's plan that is correct even by law your honor with certainly with respect to the pension and then also under the plan terms he welfare employees are entitled to get credit for hours worked so these employees who are no longer being represented by the union are still getting pension credits and health and welfare credits and i want to  of the five year to the end of the expiration of the agreement yesterday and that legacy that's on the receiving end of the plan terms so the obligation to pay these benefits again pension is the most dramatic twenty years from now they're making first point your honour's is that there is no basis in the record for the funds assertion that the fund has continued to accrue any types of benefits for these employees in fact under recipient ploy it was not obligated to contribute they don't owe the employees benefits my second point is  holder in due course is entitled only to enforce the language of the instrument as written there's no argument in this case that the trust agreement obligated the employers in this case to contribute the only argument is based on the collective bargaining agreement in this case the collective bargaining agreement defines not only a duration but it also specifically defines for whom the contributions are owed in this case your honor contributions are only owed for employees working under the terms of a collective bargaining agreement the construction context is irrelevant decertification renders a collective bargaining agreement prospect of lee boyd or honors whether it's in construction or not it's the same law the same concept in construction you can sign a pre remit but that's it this court's decision i believe this court used the term void ab of michelle void from the beginning but that distinction is not relevant in this context because we're only talking about the prospect of contributions and not contributions from the beginning ok thank you very much