i mean that's the portion of of the order that tells me he's going back again not my intention to repeat the arguments and briefings there just a couple of points that i thought were really worth addressing for the way in the first is the fact arbitration of claims brought under it that can't be disputed because the appeal is withdrawn that issue would not have been moot because there's a morrison case from the six circuit i probably she was not before so i don't see how you see it is because just as was the case in regard to the post closing retirees the pretty closing retirees are relying on the same plant closing agreement which has the same arbitration provision the judge took found controlled in the post closing and you want to argue that arbitration is required correct term even though in the other case which had similar if not the same issues you lost the arbitration that's correct your honor and truthfully although it's not within my authority to say this i don't see any reason that we would need to go through an arbitration in regard to these employees because the language is the language and it's been interpreted so i think that there is so why don't you why don't you just withdraw your appeal well we would we would do that your honor but the problem is that plaintiffs position is they want to go back to the district court and get these if we agree to put the post i'm sorry the precaution retirees under the arbitration system so in essence that's the issue the issue is do they get to go back to the district or to move for fees or so you're not you're not you're not you're not still insisting on arbitron on arbitration that would be a call for the the client to make your honor i don't agreement with respect to fees so you wouldn't have to make any concessions as to the law you well as withdraw your appeal but we don't have any agreement in regard to fees so that's what i understand so they got to keep them yes so then the issue is that you're still arguing is whether arbitration was required for the pre closing retirees correct and then you know again that the plaintiffs just as they did in the post closing retirees are relying on presumption of arbiter billet absolutely apply now th rights that does not necessarily mean that the union is barred from making these claims arbitrary and the unions argument is really based on the assumption that arbitration is a lesser form of dispute resolution that's  are i'm saying that but plaintiffs said that in their complaint they they claimed that under the plant closing agreement this is paragraph thirty three of them and the twenty that they were entitled to benefits being taken away whatever vested right they have to health care remains the only issue being addressed there is whether or not it's resolved in arbitration i that's a right whether i don't believe it is right of arbitration i think this is going to order said that the ability to proceed through in the arbitration that kelsey hayes should have negotiated with the union before making these modifications so it's inconsistent for them now to say but we can't negotiate you should have negotiated with us over the changes but we can't negotiate o signing the plant closing agreement did the union represent the retirees and the union represented in the plant closing agreement that it was protecting the retirees right to health care so that we didn't oh i'm sorry i'm if i'm understanding your your honor's question i believe that cases is essentially no a fight because and eyes are fine if i'm correct is that from the seventh circuit that case is essentially been rejected by the six circuits holding in van hamel that the presumption of arbiter billet he applies to retiree health care and in van campbell there was a similar issue you know how to interpret this can we reasonably interpret it to apply to retirees the unions argument i'm sorry the plaintiff's argument my case was that the presumption does not apply to that analysis i believe that's also the seven circuits view however in van panel the six circuit unequivocally said the presumption absolutely applies to retired cases and that accordingly in this case as  again if i'm understanding your question correctly the answer is is yes typically my understanding of a master agreement would be for example in the freight industry where you have a master agreement and then supplements that  exist at the same time here we have a bit of a different fact hatter the plant closing agreement terminated the ninety eight c b a so that is the only agreement that remains at least arguably in effect so we don't have agreements that necessarily coexist like you would in freight but we do have to agreements that enter relate and in trying to dovetail those together the presumption of arbiter ability would apply really be any use to going through arbitration as i mentioned at the language at this point has been construed by arbitrator landon you know personally i would not see any real benefit in going through that exercise again that's not for me to morning you're on there's william worth a timer on behalf of the u a w in the three individual retirees i think it would be helpful to list what i think are the key points we wrote a seventy page brief touched all kinds of issues at the point this case was much more complicated than it is now i think it's very simple and i think it's been touched on in the questioning one duty to arbitrate is a matter has to be a matter three that agreement contains an anti arbitration provision actually contains four of which are clear as a bell and for the law in the circuit from the judge griffin intimated in his question when you have a right to a benefit and you have a right to go to court you don't have an obligation to arbitrate it that is a right and the union cannot take that right i mean it's only did but the derivation only occurs if there's suppose if there's the closing well that may be but that doesn't bind us to arbitration provision in that well but that's an issue i mean that's just not open and shut  i mean you might say that at least with respect to someone you're suing who you can't win against unless you rely on the closing agreement that that arguably are you billy not the provision in the closing agreement blinds i mean  doesn't work so well against the other i understand and you know let me say this in real life northrop grumman has never been a part of this case i mean we alleged that we did the arbitration without northrop grumman they're not paying the benefits to that to the folks who we hundred ninety eight contract that we are suing under is the successor contract for the contract that we won on this exact same language so you're trying to you're trying to establish a legal point but this litigation  are trying to establish a legal point and we want class protection and we want a federal court order that these are lifetime benefits so that we don't have to deal with this again and we think we're entitled to that but you get that if you won the arbitration that's favorable to them they're there is likely to get it if you lose on the arbitration issue is if they win on her arbitration issue and that's why i wonder why why you don't just want the simple and either either s just agreed arbitration and just go ahead and do it rather than troubling us with figuring out who has the right to do what you see what i'm asking i do your honor and i and the are short and shorting answer is that we we are suing under a contract that says we don't have to arbitrate i understand that's your little decision but but i'm saying as a practical matter in this case it doesn't make much difference when you have that legal position or actually  wiser than district court maybe we won't but at least you have that option before you give it away you have to express your receipt to go through the or go to the spring like you go to the process where you have  plaintiffs there was no class action certified the two plaintiffs had were hired under the closing agreement in other words van hamel is a case that stands for the proposition that judge cook was right as to the post closing retiree's and pamela in no way stands for the proposition that you can apply an arbitration agreement in a closing agreement to people who retired before agreement it just doesn't deal with that issue at all because it was not in front of it so been p m o does not support what they're claiming here they also point to our complaint where we referenced the closing  that's true but remember at the time we drafted our complaint we were suing on behalf of all of the retirees including those who had retired to the closing that route so there are allegations saying that the ninety eight c b a and the closing agreement provide the lifetime benefits that's all that complaint says there's nothing inappropriate about that it's not a concession where the u a w was saying that the subtle law in the circuit for thirty years that you can change the benefit of an employee heat with an agreement subsequent to that employee's retirement is the war it just doesn't stand for that finally there is a i think i need to raise a jurisdiction and that is whether the federal arbitration act applies in this case we raised that issue early on we filed some briefing  when there is pendent jurisdiction there is jurisdiction and that's what we said subsequent to saying that and acknowledging that there was pending jurisdiction i think it was in january in february the arbitration decision came zero one but they would have a right under the federal arbitration at and he talked about well that's right and what i'm saying is at the time we brief we raised this issue before the research file an appropriate way at the time we filed our brief in january of this year we conceded that there was jurisdiction because at that time our appeal was also pending and we said we don't think there's your addiction under the federal arbitration act for a labor case there g arbitration then there's pendent jurisdiction what i'm pointing out to the court as an officer of the port is our appeal is no longer pending therefore this case stands without any pendent i just say that i appreciate that your honor and i just raise it because as i was getting ready for argument i noticed that that at the point in time that we agreed there was pending jurisdiction there was in the arbitrate is that immediately appealable there is no law on the circuit on that and there is there are circuit decisions suggesting otherwise and we cited them in our brief that is the sixth circuit has from all three u p s case saying no  that mr worth i'm arrays he mentioned about the four different units that these changes applied to him that his clients aren't getting benefit in fact we've had three arbitration on on  this very issue every group that has arbitrated their case is now getting benefits mr work climber's made a living last few years kicking my butt in arbitration so so to say that arbitration is not  an effective remedy is is just not consistent with the facts all of those employed all of those retirees currently are getting the benefits that these pretty close in retirees are asking them for the award so arbitration issues are the same the underlying issues i can't see that the underlying issues are exactly the same they're in truth i believe and mr wertheimer can correct me if i'm wrong i believe this is the only case with an anti arbitration clause i don't believe the other like the bargain from the arbitration issues the issues are the same issues it is anybody argue that arbitration but well i think that that was there were several pages of the seventy some page brief that plane of submitted giving it a litany of policy reasons why arbitration isn't effective for retirees to vindicate successful yes absolutely in but they might not there are no that's true they might not they are free to decide it differently in regard to the band camel case and mr worth farmers point that it doesn't deal with plant closing agreement that is absolutely true and if my remarks were were unclear i feel like i need to re address them but i cited van camel only for the proposition the presumption of arbiter ability applies to retiree benefits case and i did not mean to suggest that it controls in any other way in this case the reference of the closing argument in the complaint it is true that at the time the complaint was filed there were both the closing and post closing retirees a sold this plant about a year before close to a company called american commercial industry is not a part of this case as best we can tell is now that long so anybody who retired after the sale of the plant did not retire from kelsey hayes and the only reason that they would be able to pursue would be under the plant closing agreement where kelsey hayes agreed to centrally reassume these like the r v or i'm sorry the health care these are not tells you his retirees and retiree benefits are not until the point of retirement so without the plant closing agreement those individuals have absolutely no claim against else you so the point of closing agreement remains a vital part of plaintiff's case at least in regard to those individuals and then finally i point out that all the way i referenced it i believe in  my opening remarks the fact that the union now is saying that they don't have the ability to negotiate best the benefits is absolutely inconsistent with their position before the arbitrator and before judge in both of those for whether it's inconsistent is that the law well i think you are right if the union to go she ate benefits or on members well i think if the union is saying that they have the right to negotiate which they do just  created with the ability for the union to negotiate them which is their argument then under their argument they're not vested benefits but it is clear in the agreement and from the unions own arguments that they have reserve the right to negotiate those benefits either that means they have the right to negotiate them and they are vested or maybe it means they're not vested but it is beyond dispute that this agreement gives the union the right to negotiate retiree benefits that's a position that they've taken so what that means it means but it's  there i don't believe i've seen any cases on point where it where the court has addressed what it means when a union a negotiates a benefits provision with the explicit reservation of the right to negotiate regarding retiree benefits which is the