the court my fifteen minutes allotted argument time i'd like to reserve five for rebuttal not a problem at all thank you to just one question at the outset why was the this ninety nine agreement here now talking about why wasn't put in the record at the get go well from the funds perspective and i obviously responded to  the to the complaint we're talking about tomorrow that was obviously filed on somewhat short notice requiring a response on a short notice i believe actually the complaint was filed two days before thanksgiving and so what we were  you know the funds did their due diligence they searched the record for the records for the short forms that they had on file the the actual ninety nine form being a bit older and superseded by the two thousand and two form had been kept offsite and so it wasn't discovered until later but that was the reason why was not unusually provided although i would say certainly we would have liked to have provided the nine hundred and ninety nine dollars along with the two thousand and two short form because it is another manifestation of  she said for a single job i think the existence of the short form and why i would have liked to have included it and frankly why we would have liked it to have been included in the original complaint show that there was a more that there was that there was a practice of formal  acknowledgment of the contract contractual bargaining relationship between the employer and the union so this particular contract for the terminal three of the audit in connection with what we perceive you may not have paid pursuant to the c b i over these many years i believe the audit to me and was communicated in either two thousand and seventeen or agreement you know from our perspective the agreement was operations under the agreement commerce under the agreement was ongoing throughout that time from two thousand and two to two thousand so throughout so throughout that time i would just say that what you have there is at least half a one million dollars or five hundred and fifty thousand dollars worth of work contributed c v a rates to the fund it's certainly indicative of contract relationship that there is work being done under the contract the point of the audit was to determine you know that if if the work reported to the funds or the work reported to the fund and paid for by in the end was everything that they owed i mean were not made for work that you know in the funds view should have been done under the c b a now and the m disagreed with any of that certainly they had a point but i guess our point would be you know all of those disputes and  their defense of those far as well this work with the v a and this work was not and we shouldn't have to be paid we should have to pay benefits for certain types of work they can make those points and they may have valid points but those those points should have been raised to the arbitrator is not the language of the agreement that they find it's not the that's not the expressed language of the agreement that they find right off the bat saying that it's a you know a single job agreement that's belied by the fact that there's the time duration on the agreement the short form agreement is a single sentence that the only language on it says essentially i'm an employer i want to work union to increase my job opportunities and so as a result i were well i would just say and as far as the resort to state law it is true that state law standards are applied to contract provisions including our provisions just like any other contract provision  however in this case the fact that there is a specific delegation provision that specific in the c v a which delegates the question of arbiter ability to the arbitrator  representation that this was a one shot deal i mean i understand i understand that you think that that's not true but my my point here is that if we if we have to accept that is as true with the pleading stage pleading that you know whatever her understanding of the agreement might be that the fact that she pled are not sufficient to overcome her obligation and you know one fact that is agreed to by all finding if she signing an agreement and actually judgment ulti know if this specifically and in his in his comments at oral argument he says you know she she understands what a collective bargaining agreement is she understand that there's something bigger at play here and that understanding is be made between knowing there's a cd a and knowing what the c b s says well i would just say that there may be and that may be significant for i would say that you know that's something that she should understand and before she signed an agreement incorporating a broad c b i mean as someone who obviously knows the implications or at least some of the implications of operating under a c b a and she's looking at an agreement all it says is i'm agreeing to be bound by a c b a for the next three is very favorable i think to the party that doesn't want to be that be a corporation agreement it says that the party to be found has to have knowledge and a sense to said about arbitration etc then how can you satisfy the alpert standard or is it your argument that you need not satisfy the alpert standard well i don't think what i'm arguing is necessarily in conflict with the  short form agreement and she and she agreed to assent to it's material terms which again is just incorporation of the c v a she is taking on the obligations of that agreement and  the alpert decision says ok well she has to have knowledge of but that's her duty to get that knowledge before she puts her name on a contract if if if you can avoid tough to enforce a contract and specifically s c b a harp creation clause in any circumstance or any circumstance where the sign e says well you know i just i thought i was signing something different and i would just say that that that stops in two thousand and four doesn't  well i would say as far as you know st of all the time period two thousand and two to two thousand and five i mean that in and of itself the law is what she was represented she was told about the nature of the contract i mean that in and of itself i would she complied with that particular contract with respect to the union requirements for terminal three of the airport she's an open shop the person who run correct ok so we need to be precise about that because this comes down to whether or not she is chargeable with all of the language in the incorporated c d s right correct and you're saying under the jersey law any time any one size a document that's very curt and very basic it says oh by the way what you're signing here incorporates other documents perhaps really long and complicated documents then it's incumbent upon the signer to be familiar with understand and here to everything and that want a more complicated document right correct ok you think that's a new jersey law and i'm not sure that's right under alpert because it seems like alpert is pretty favorable to the person that size is the short and i guess just to clarify as far as that new jersey law she may well have a case for a limited application of this contract under new jersey law my point is that that argument needs to be made to the arbitrator and and that's under the federal arbitration act and you look up notes one dollar and two dollars if you're talking about a formation it's for the court to decide if you're talking about the enforceability of a particular provision in this case the delegation provision and the c v a then you're that's for the arbitrator to decide but here there's a gateway claim to use the court's term as to whether an actual contract was formed so isn't that for a court to decide well under certain circumstances it is my contention is that those circumstances don't exist here and here is that because of course is that because she didn't specifically position well under ran a center and mcdonald and the f a obligations in terms of pleading yes that that that there was no challenge to the  correct her arguments with respect to formation or as you know she alleges fraud in the execution of those those arguments had to be targeted at the actual delegation provision and had have done that had she it's not just language for the sake of the language what that language in right of center and what mcdonald want to talk about the requirement to specifically challenge the delegation clause when it exists which is which it does here what that get that is the bargaining between the parties when the when the contract is formed and whether or not you know a specific arbitration provision or a specific you know delegation provision was the was referenced by the parties when they signed the short form i want to access to the courts to determine you know if something goes wrong with this agreement we disagree on how this works out i want access to the courts and he and taylor responds absolutely nothing stands nothing stand the way even if it's not committed to writing even i believe it mcdonald refers specifically to a fraud an inducement claim that specifically target the delegation provision gets you to court review but but there is  no there there there is no contention that that was the that was the product of their initial negotiations and there's no reference to the delegation clause in her complaint or in their briefing there's general references to the arbitration clause or the contracts are creatures of state law however the parties can contract specifically as to what the scope of arbitration will be and when they do that that federal courts have to defer to your right parties can contract specifically but there's nothing specific about the notice to her she's claiming ms perry on behalf of m g m that she was unaware of the delegation provision in the c she's claiming that there is fraud in the execution restored of what do you understand the difference to be between fraud  and while they're distracted they put a they put a different contract in their face and they sign that contract and so that's what from the execution get that there is no there is no meeting of the minds there is no basis to enforce that contract because the contract that they find is different than the contract that they thought they were so i think the contract that was put in front of them the contract that they had the chance to review and understand the terms they went through all of that due diligence and at the end by you know whether it's bad fa faith or you know a surreptitious act some sort of absurd construction of events they end up with a contract different than they thought they were signing so there is no assent in that case that's fraud in the execution and that's distinct from what our position is that we have here that fraud in the inducement and the cases are very specific fraud in the inducement is when you have an oral assertion that is contrary to the clear and express language that you have in front of you if you're sitting there with clear language in front of you and you're told by your contracting party i know it says that but really at this so just go ahead and sign it and you sign that agreement that's fraud in the inducement and it's not thing that that means the arc of the contract is binding but what it does they is you have agreed to a contract you have agreed to a contract and that contract contains an arbitration provision and so your defenses to that contract are arbitral and i think the difference between the two really gets to and in fact it's in the  performs the due diligence of saying when presented with an agreement and she's being told that it's something different than the plain language that it is that she says eight says i am signing this agreement in full you know i need to wind up prior to the distribution of assets and and you know this is what you're signing onto you know there isn't there is no agreement present there is no opportunity to read those terms that's from the execution in j f which i know the district court took a lot of note of and which was pretty prominent and respondents pleading there's not the element of compulsion but there is the element similar to what i was describing four of you know they're the parties had history of signing single job agreements they were signing single job agreements their power practice there was doing work per person with a single job agreement then they negotiate another job and these are the facts as found in that case they're  negotiating another single job agreement the negotiations are all targeted at fingal job agreements and what is put in front of them is a full short form not limited to a single job and when it's presented to the signer it essentially looks identical it's missing the one itself should put her on notice as a conceited lisa fist gaited construction business operator that you know she needs to know what she's finding before she puts before she puts her name on it before you sit down we've had you go for almost half an hour as opposed to ten minutes in the district court all it suggested here is what put this on quote a short leash to maintain the status quo i need to that has been timed in order to make a call on this what's wrong with that court is judgment guilty a good judge is saying i just need i need to figure this out this is not an easy matter of fully understanding the claims here  the facts that relate to the claims how much she was aware of how much she wasn't so why the appeal here ok so the reason for the appeal is because notwithstanding the fact that it's and i agree it's that that is a restraint of the arbitration and particularly in the case when you have the restraint of the artist trying to figure out if there's an actual agreement formed is trying to follow this and the case and what what ran a center says if want to talk about formation you got to deal with it st well and my and my response to that would be that there may very well be formation issues but in these circumstances those those are for the course of performance through out twenty six years most of the work at m g m does is nonunion and m g m has always been clear with the union that it will not be bound to a statewide c p a it wasn't until in twenty thousand and  project only agreement which had to be signed at that moment or the union would pull the job and it was signed at that moment with the union still present she did not receive a copy of the short form agreement she was not provided any collective was not necessarily the specific terms of the c d a the question the issue at the time was that the c b a would only be enforceable for this specific agreement so whether or not there are any issues about specific terms of the the new jersey board of mediations after ten days if it doesn't solve it which under those rules and procedures presumably both parties would some like your trainer and to those cases when it's a union employee   the quintessential red herring besides from the fact that even if the trust agreement did have a delegation provision because the argument goes to the execution of the contract not the on the entry into the agreements we propose joe taylor if he's still around we find out the course of performance in course of dealings between not only m t n in the union but the union in general we find out what happened back in two thousand and two what was their procedure for short form agreements and then after probably a couple depositions in exchange of historical documents the court has either has a summary judgment motion to determine whether or not  even if even if you go to trial isn't it axiomatic that when work is performed on a prevailing wage job that you have to pay union benefits or is that  prevailing wage job they be perfect maybe providing a company would be providing the wages that essentially are but it wouldn't necessarily be providing certain benefits to the funds and the two hundred and thirty dollars grand that issue apparently at issue is gone about wages it's all about fringe benefits that is my understanding it's not one hundred percent clear because we haven't gotten into the weeds of that yet your honor we only received a notice of arbitration for two hundred and thirty thousand dollars but we never received the specifics which is another issue i mean essentially the funds are seeking to compel arbitration against an entity who never signed a c p a signed one project on the agreement back in two thousand doesn't even know what the two hundred and thirty thousand dollars is really about based on information from and g m and the unions it appears that most of the information has to do with employers and workers that work on a nonunion job and a federal job that they get prevailing wages but i don't i can't sit here and tell any your honour's what the two hundred and thirty thousand dollars represents very well that it was only a single project agreement because eventually as found already to a collective bargaining agreement with an evergreen clause what was the need for the two thousand and two agreement the st place and if it's because well they always answered the short form agreements at the end of  clear all that does is support the fact that backing up remaining supports are required under the labor management relations act without remittance reports legally an employer cannot pay union money yes that would all be evidence that the court can weigh to determine whether or not and v m at least at this point is not on the hook for delinquent contributions but is required to arbitra referenced a delegation provision that is when it is presumed that there already is an underlying existing agreement which is not the case here m g m never conceded entered into a c p a and in our affidavit she she acknowledged that those reports for arbitration were printed in december of twenty eight team which was after this litigation was filed there is no arbitration date on it so it looks to me that this was a report for an arbitration that was going to happen and never  example of what for the execution is when someone does a typical bait and switch yes that isn't it shrinks ample but that's not the typical example in the cases that were cited in the brief the typical example is the example that here someone is presented with one agreement that they think is something else there is no reasonable opportunity to review they are not provided entire collective bargaining agreement they signed the agreement in the presence of the union they don't take it home for  educated people they are people who own companies that are contraction workers they are people who may know about collective bargaining agreements they are people that have entered into project only agreements but the agreement they signed is radically parties sit down they read the agreement they read the terms but the union says oh don't worry about that provision we're not going to enforce it and it turns out that they're enforcing it that is flawed and use them because there is no dispute that the contract have a subsequent business relationship between the two with contributions and you know half a one million in contributions paid to the fund at seabee a rate there is a relationship where there is a contract relationship where the challenge is as to scope and under rennison or if there is no specific challenge to the delegation the funds direct access to the arbitrator and the ability to appoint a permanent arbitrator but it does it does not does not interfere with the prior arbitration provision it just says that they don't have to go through the grievance provisions  contract with her signature on it and that that that that contract incorporates an arbitration provision and i again we're not saying that none of these things are issue that none of these formation defenses you know have any bearing or relevan usually we try to give the district court the st st bite at the apple and that never happened here well i know in the in the usual case that's that is the case however under red center and mcdonald you know if you have a delegation provision that specifically commits issues of arbitron realty to the arbitrator and less then you can still get court review of those provisions but they have to be challenged specifically in the complaint and if they're not just as a matter of court as a matter of course the district court has no authority to review those types of complaints all right thank you very much thank you thank you to both counsel for well presented arguments and we'll take the matter under advisement appreciate your being with us today