collective bargaining agreement with the local sixty eight engineers union and in each of those collective bargaining agreements the description between the local sixty eight engineer union identifies the party with whom they have a collective bargain these are the facts or there isn't a dispute over what the jurisdiction actually is whether it's just the individual house or entirely their next city yes your honor  contend that there is no question with respect to the jurisdiction for a number of reasons number one the collective bargaining agreement specifically describe each casino with the jurisdiction as atlantic city ball atlantic city harrah's atlantic city caesars atlantic city it's a that's the jurisdiction you just say there's a recognition yes you're on it is a recognition clause in each collective bargaining agreement wherein the the union is recognized as having the jurisdiction of atlantic city new jersey with that casino so as far as we're concerned each collective bargaining agreement identifies atlantic city there's a recognition in each collective bargaining agreement which identifies atlantic city in each collective bargaining agreement it describes the exact the work that's being performed by the operating engineer at each of those particular site so far as we're concerned there is no dispute with regarding the jurisdiction jurisdiction is clear geographic as well as trade it's clear and the jurisdiction of the engineers the union itself is state wide it's not confined only to atlantic city it is state wide but with respect to the facts of this case it's absolutely confined to what atlantic city as so identified in each collective bargaining agreement or i looked up the facts of this case a little bit instead of four different casinos let's assume that the engineers are it to casinos and let's assume there are five hundred engineers total two hundred fifty at each casino one casino closes and they build up the operations of the other casino so they take two hundred fifty workers from one and move them so now instead of two fifty to fifty there's five hundred over here so that a partial there are still five hundred operating engineers and cesar's or the operator would still be paying benefits on all five hundred engineers not withstanding the fact that they're paying benefits and will buy hundred engineers if the contributions dip below seventy percent total at the end of the fiscal year for which the first casino is close there shutters that would constitute a partial a partial sation of operations even stand even though even though under my hypothetical cesar's is paying one hundred percent the exact same amount of money in the legal penalty it would still be a partial withdrawal in this case it was a seventeen percent reduction in contributions it could have been a sixty seven percent reduction in contributions it never reached the level of a seventy percent reduction  contributions had it reached the level of a seventy percent reduction in the level of contributions that in and of itself would have been a partial secession of operations up to a partial terminations we can subsection i go through a section subsection two i is what governs what in this case the partials to the there is a partial since the station of the employer's contribution obligation for the plan year if during such year the employer permanently ceases to have an obligation to contribute under one showboat or more but fewer than  collective bargaining agreement under which the employer has been a obligated to contribute under the plan but continues to perform but continues to perform the work in the jurisdiction of the collective boring agreement of the type for which contributions were previously required and that last phrase previously required previously required at the showboat at the coast operation interpreted either way it could be interpreted for the actually or could be interpreted for the appellant we contend and the arbitrator referred to that p b g c opinion as well that it applied to contribution obligation and it were first to four employers one of whom pulled out but it really was not a closing of the facility it was a sale of the facility three other facilities continued to operate and continue to make contributions similar to this case but there was qualification language anette in that the pvc opinion ninety two dish one which referred to the sale of the assets now in this case there was no sale of assets in this case there was no no transfer of work from one jurisdiction to another jurisdiction there was no shifting of work from one casino to another casino there's just so that they're saying no instead of closing it down well if they sold the casino then another section of the meth of provisions would have engaged as to whether or not the successor employer would have been willing to post  bond as to what the total contributions were from that casino whether or not the pension fund would waive the posting of a bond the whole of the set of regulations then would have been gauged if there was a sale of that asset of that to see you know hear you new unique facts i can't think of a case and i've been thinking about this for a long time why we would even need a subsection i do the mepis statute thank you magnitude of contribution to plot decline over a three year period is so great to the facility closure or the like that it triggers a per se withdraw the so called seventy percent rule is undisputed between the parties that's not what's happening here s only seventeen percent to less than a quarter of that per se trigger the other circumstances where an employer in essence of aids a contribution obligation by substituting covered work that is work for which contributions are currently required for work of a type which contributions were previously require seventy percent has to be over a three year period and then it's comparing that three year period is comparing to the prior five years before that what the highest to the average of the highest two years of contribution base units i e hours contribute to the and we're for those five years so it's really looking at and a retrospective basis over the previous eight years and it sang for the three year test period the past three years did it did go essentially thirty percent of the max the high average contributions for all three of those years  that case there's now a partial contribution and you owe partial withdrawal liability so i think that really answers the concern they have that is the exact way the congress design a subject could have a situation where you're selling dribbling out of contributions but your contributions get to a certain point you're going hit with partial withdrawal liability aren't living let me just push you a little farther on that was what i hear you saying is that if they close three of the four facilities presuming that there's this equal number of hours worked at all for that would trigger caesar's intent i don't know whether it was or not but if caesar's intent were to stop having to contribute to this plan it seems like they could structure it by closing one of the fo this year and wait a year to close the next one and then close the third one you see what i'm saying if they close three out of four today right that's over seventy percent you lose they win but if you do it in a staggered way you effect sure you haven't accomplished the same thing as quickly but you've accomplished the same goal over time because the statute allows you to do that not really your honor and again it goes to kind of the retrospect responses first of all just again this is the way congress congress understands islam's industries are declining and you know it's always my clothes but so they so they look back at this eight year period to try to figure out how are you going to figure out whether they've you know reduce the contributions enough for the partial withdrawal liability to kick in but so so it so technically might be able to do with what you said would have to be done over a really long period of time like ten years so i think there's a you know that to evade that would just be a very complicated thing to do but i think you know the other point is that as a practical matter a lot more goes into the siting you know whether casino is going to close than whether or not to have to make contributions would seem to be very odd i think her employer to structure its operations to close casinos over a twelve year period or support to our position we understand it's not entirely on point and frankly there are many cases on point and we think that is a point in our favor your honor because you know if the fact that we can't find a single case that has actually done this what they say if that they say the language is as clear as it's continuing to do work you're going to get partial withdrawal this would have come up more often but the fact that it hasn't we think makes a lot of sense because the piccies c which is the expert agency charged with the statute has looked at this language over many years it has a consistent position the legislative history is clear and you know we haven't given those factors i do want to make one point about the pvc opinion letter because i think that if you need to win the case now i don't think so you're not i think we can win on the text alone and i'm happy to walk through exactly why i think the it's more it just doesn't hundred percent answer the question it's not telling precise on this point i think the strong implication of were previously required is suggesting you had an obligation to contribute you cease that obligation to contribute but you're still doing the work you were previously required to receive contributions for in that sense and it really sounds like it's talking about the you know you're not required to contribute you know were previously required but you're also just not making the contributions that's a strong implication and i think that's supported by a few things one i don't think the other side would even disagree that the heartland of this of this provision this thirty five b to a one or moment one is a situation where just what i said an employer has an obligation it's ceased but it keeps doing the same work in the same place such as when you know if  the employer negotiated with the union to start making for one k contributions rather than c v a contributions for example so it's no longer being for the plan for the same work or that moves the work from the shit out into the field exactly that's another good example so i think that's kind of a heartland of the situation so i continues work of the type which are contributions or if a transfer such works with the same type of work in either way you have a partial withdrawal i think my friend the other side said in a situation where you transfer work from one facility to another you keep making all the contributions there's no decline in contributions in that circumstance that still counts as a partial withdraw now can't be right it can't be right accounts or it would mean that transferring work from one because you know from showboat to harrah's all all those employees moving them over making super guess it's a little bit text a little bit structure writing and i think there's another textual point that really helps us to your honor and that's thirteen eighty three b two that's the construct construction industry provision and the reason i like it if you want to if you have my reason for the use of then the page sixty seven it's really at the denim page seven and i think the key is that it's talking about how she would fall in the construction industry and as you may or may not know mehta has certain rules for different industries but the key here is that it uses the identical language continues to perform work of the type for which contributions were previously required but it does the same thing as the transfers provision does in the provision you're just talking about in the in the problem one roman at one provision so first that it use that same language continues to perform work in the jurisdiction of the type which contributions were previously required for the next provision talks about how you can there's also withdraw liability if the same employer resumes such work without renewing the obligation to contribute at the time of the resumption so it gets referring to the work again i want to be very clear about this because he's referring to the same type of work work of the type which contributions were previously required that contribution then must be resumed which again suggests that when congress was talking about were previously required it was really thinking were previous required and are no longer making contributions and i want to also point out too in addition to that anomaly my friend discussed with your honor's regarding the transfer in work for contributions to be made there are some other kind of strange anomalies under their reading too which i think really go to show again this is kind of more structural point or maybe a policy point because to show this that our reading is by far the better one and it is it's a situation where for example i think we talk about the venturi ventnor city example where you have one hotel showboat and lenox city one hotel and better city if you close the showboat facility even under their view of partial withdrawal liability there's no partial withdrawal in that circumstance because no work is being continued in the same jurisdiction we don't think that makes any sense why would congress it's the same effect on the plane why would congress have done that and i could put the finer point on that example saying that there are therefore pacino's that issue here is harrah's caesars palace and and showboat in atlantic city but if all four of the casinos closed in atlantic city that would not constitute a partial withdrawal under their view even though that is clearly worse for the plan it's worse for the participants and it's worse for the benefit to trigger the seventy percent rule in might you run out  talk i'm just trying to have a example that goes to show exactly why it's arbitrary to say that it should whether or not is a partial withdrawal should arbitrarily depend on essentially how broadly the parties have defined jurisdiction or whether the employer just happens to be doing at extremes of evidence or you know trying to discern evidence things like that that's usually a question of laws we think that can be decided by this court to make sense any doubt about that i think they would have to remain to the extent the court decided to reach this use this issue which it would need to to simply affirm a district court but i think just our our our basic point about the jurisdiction is you can look at the four corners it doesn't make a lot of sense to say to have a c b s where all the work is going to be performed on a single casino in a single place in atlantic city to really be considered the jurisdiction all of the manic city and i think my friend the other side point the recognition clause but that clause as employer recognizes the union as the sole and exclusive collective bargaining representative of the following employees employed by the employer in atlantic city new jersey and the employer is conditions and what it says is it's paragraph five it says trade employees may be assigned to work at other properties owned and operated by their parent company if parent company owns or operates more than one property and lenox city now if the jurisdiction of this provision were all the planet city you wouldn't opinions i don't think it could have been much clearer eighty three twenty million in particular it's on page a ready to be appended so it's virtually identical facts are talking at two facilities each requiring contributions and the work is transferred from one to be other and what p g says statue of construction are pointing in the same direction the tax consequences the structure and then the official guide legs of the history and then also the official guidance from the expert agency in charge of the ministering it i will say that b this provision is signed by these letters or signed by the general about how best to save the pension system so anyway for all the reasons i think that the district court got it exactly right and that this court  transfer of work and there was a definition in there of partial sation a partial says ation occurs under subsection i want contributions cease under a collective bargaining agreement and either of two circumstances occur either one of two first one the employer continues to perform the same type of work within the agreements jurisdiction we contend that applies now with question of jurisdiction i think is is is clear the each collective bargaining agreement specifically identified as for example caesars atlantic city bally's atlantic city each collective bargaining agreement in tains identical language describing the work jurisdiction that is going to be performed maintenance atlantic city new jersey each collective bargaining agreement  contained in article one which is a recognition cause which pacifically states and my friend refer to with employer recognizes the union as the sole and exclusive collective bargaining representative of the following employees employed by the employer in atlantic city new jersey each of those four collective bargaining agreements describe the last point i want to make is what i call a less standing argument if the court were to affirm the judgment and order of the court below and showboat with drawers and there is no partial withdrawal a year or two years later bally's could withdraw there would be no partial withdrawal a year or two years later harris could withdraw there would be no withdrawal liability a year or two years later caesars could seize all operations file a petition and bankruptcy there would be no withdrawal liability when the last one closes they're going to trigger the seventy percent rule because that's one hundred percent of the right but they could close three of the four that was the concern i was asking apples absolutely they could pose a threat if his rejoinder was well it's baked into the statute that it it's going to be it's going to take a while to get did you agree with his timeline about the eight year lookback that it did it's an average it's not just you don't just take a snapshot at the time one casino closes to determine whether the seventy percent rules triggered you know i can get you snapshot has to be taken at the time the casino closes without reference to how much they were contributing to the plan that is the reverend your point is that total amount of contributions that were being made at that time there so that when these participants come up to the window to collect their retirement benefit it's going to be there i don't think the narrow i thought that was the purpose but when i asked you i thought i was astounded by your answer  i gave you a hypothetical where they move to consolidate two locations into one in the same amount of hours or worked and you're paying one hundred cents on the dollar and your answer is this law hits them with a penalty that was your answer yet that does it still your answer that's still my answer if i'm that hard to just i don't know i think i find that hard to swallow that this because i thought the statute was about protecting the union workers from diminished contributions not one hundred cents on the dollar contributions well with respect one hundred cents on the dollar contributions i understand the court's argument in that respect the likelihood of  happening likelihood is unlikely that it would occur the likelihood of the casinos closing one of the time that's much more likely there's no question about that is about that we could not find any case  point with regard to the facts of this situation and we think that this statute is the statute that applies if your time's up counsel thank you thank you thank you we think counsel for excellent briefing in world argument