fully agree with the court's analysis with respect to the multiple contribution which we do think however that it was an error when it determined when it ruled that the highest contribution right did not include an obligation there arises under one or more collective bargaining agreements who are related agreements well both well or a duty or as a result of authority under an applicable labor management relations law i want to for postulate there is no stature i've never run across i've looked a lot for any of that defines the words labor management relations law now clearly the national labor relations act is such a law but the fact that the statute is a pension plan tried to enforce a contribution right and he claimed it had for a collective bargaining agreement that had expired and you're establishing n r a a law and i do this sort of thing all the labor relations act whether whether the national labor relations act is a labor management relations not equally was it did not address the question of whether any other kind of law that effects employer employee relationships is also a labor law as i said i do you know it's not exclusive to mean if you've i think that's pretty clear you're correct on that but the statute that we're dealing with here is a risk and while it is true the internal revenue code may not for most purposes because sort of the labor relations act still status can contributing employers automatically are required to increase their contribution rate in the first year for five percent in the second year ten percent this is essentially a change in the collective bargaining obligations of the parties i see now one other thing that the statute says forty two twelve a is that it talks about the obligation to contribute is an obligation arising out of several things first is one of more collective bargaining agreements the second thing is or statute as well or as a result of a duty under applicable labor management relations law now i've talked about the fact that i believe that this is clearly that kind of labor management relations law because it does affect what an employer has to contribute it is not precluded from being a labor law because the congress in one nine hundred eighty used the term national use the term labor management relations law remember congress could have said the except it could have said that obligation under the national labor relations act it did not use a more generic phrase and i think that the reason for that is it congress understood but could be otherwise that would affect that kind of relationship and contributions pursuant to that would be considered a contribution obligation under the statute  of the other categories in this section forty two twelve a is that if it's an obligation that arises under any related agreements and here we have such an agreement the trust agreement that governs the i p t local eight sixty three pension fund states that an employer who is participating in the plan is obligated to make all payments required by law i would submit your honor that this is such a requirement by law and for this reason also we have an obligation that has arisen under section forty two twelve a now there is yet another reason why i think it's clear that the surcharge increase is considered an obligation and has to be considered in the highest contribution right and that is when you look at how the p p a was liability under section forty two eleven that's the general provision interest that provides for imposition of withdrawal liability except for purposes of determining the unfunded vested benefits  employer now remember the purchase the purpose of withdrawal liability is so that when an employer has has terminated his relationship with a much higher employer plan if there are still unfunded vested  liabilities that are cut or created by its workforce it has an obligation to keep paying those within meaning of the statute the statute that i just read to you about not considering the surcharges in connection with withdrawal liability except for determining the allocation of on funded tested benefits that was repealed and in its place where a simply said that now you do not take into account a surcharge only and respect to the allocation of unfunded tested benefits in other words it was the opposite  changes to the employee retirement income security act and one of those changes which we passed in the supplemental relief that we submitted about a week ago but about ten days ago actually for the first time changed the laws so nineteen c one cap see i you do not take into account the increase from the surcharge in fact you don't take into account any increase required by the by the p that also includes increases that result say from a funding improvement plans or we could go with a sion plans that was never in the language before and we think that's a fairly clear indication that congress had expected that magic clarify it there would have been no reason to make it prospective only it would have been made retroactive you suggest that this is congress deciding to change the rules and if it felt that provides his that the formula for calculating annual payments of withdrawal liability that must be made by an employer following its withdrawal from them that i employ a defined benefit pension plan has two that's usually what it means it could mean for example some cards collective bargaining agreements are paid by chefs but but the great bulk of quarter bargaining agreements have hourly contribution rates an contribution base units in a three year consecutive period that number is nine multiplied by the second factor which is the highest contribution rate at which an employer is obligated to  contribute what the withdrawn employer here is suggesting is that that language which we think and the court just record agreed is absolutely clear and unequivocal actually means something other than what it says it makes two arguments first it argues that well you just won one point to make for then another when you look at the statute is also becomes even more apparent that this is the case because again looking at section forty two twelve a  it shows that congress was well aware that there could be employers who were the group who were subject to more than one collective bargaining agreement and it also shows that that congress was aware that there could be collective bargaining agreements with more than one contribution right it shows the world's highest contribution rate congress could have used average if it wanted to do so in fact it did some in the first part of the formula when i talked about the average number of contribution base units it could have said well there's a limit on the amount of the the annual payments it knew how to do that because it did put a limit on the total number in researching as i was looking at some of your earlier decisions there are in my brief cites a number of cases for the principle that when a court sees a statute that is clear and not susceptible to other interpretations that's  argument you know go any further and in fact this court in a couple of instances one of them being b g construction industries against the director of workers compensation be right in front of everyone's not makes it clear that that's it what they were trying to clear here is saying is that when you look at the legislative history it somehow becomes clear that what congress expected to work her is something different words that it actually used one other argument that they have made is that though the pension benefit guaranty corporation which is the primary authority to administer the title for of a reserve which deals with case the board of trustees of the plan that was at issue had had adopted an alternative withdrawal liability calculation figure for determining the employer's annual payments actually it had the right under the statute to do that section forty two fourteen of a risk specifically allows it to do that and what the p d she did in that opinion  was simply say yes you have the right to do this and pointed out that there was nothing in the method that they used that was that now there is one interesting thing about this in your letter which i frankly only realized when i was looking it over again yesterday the rule that the board of trustees not funded had adopted and i stress no similar world has ever been adopted by the local eight sixty three board was that when you have a card when you have an employer with multiple collective bargaining agreements it would be acceptable to calculate the withdrawal liability and will payments separately for each contract and then add them that was approved  because the board had the authority under forty two fourteen to do that but there was one interesting thing in that opinion that i said i just noticed yesterday it did say that when you are using this method and looking  at the contract by contract basis you must use the highest rate under each contract that's on page two of the opinion and i will show you the exact site because i have it printed out from  e from one of my legal reference services but it does specifically say that the increase when you do it you must look at each individual contract the highest rate lastly again there is nothing here or anywhere in the statute in any regulation any case law that would undermine the principle that highest contribution rate means exactly we are here today because the fund calculated the payments in a manner out of line with previous contributions that would force the payments to be almost fifty percent higher per year than would bridges previous maximum annual contribution if you can with the surch if you don't get hit with the surcharge that would reduce the rate by about nine percent can you give us the dollar value of my ten i didn't really notice that i need a pretty sight well as i understand  benefits adjusted by a whole bunch of reductions one of which is the twenty your cap essentially what method does is they create a payment schedule and an employer pays that payment for up to twenty years less than twenty years if the employer would pay off the unfunded best benefits sooner otherwise it stops twenty years so if you want to think about what withdrawal i believe it is it's the payment schedule it's not the unfunded vested benefits of going back to your question  eight point five million is what the fund assessed if you take off the surcharge as you get to about seven point eight million which is still considerably above the five point seven million that is the most woodbridge ever contributed in any  year if you look at the rate by rate approach you get down to about seven million if you take both off we think you get down to a little over six million but you can see when you that five point seven billion care pete the right number that's not an equitable think about that hundred eighty seven million a lot of that existed when woodbridge joined this plan thirteen years before woodbridge withdrew they joined a plan that was already significantly under funded w every penny in contributions that was asked of woodbridge which went harshly to pay for it all those contributions have to cover what's called a normal cost which means the employees of woodbridge got their benefits paid for out of wood which is contributions employees so all of the six to eight and a half million a year goes only to pay off unfunded vested benefits so if you want to look at it that way the huns better off having a withdrawn employer paying withdrawal ideality that is having an active employer pulling money out in the form of additional accrued benefits so the equities sort of go both ways yet that's sort of the real question is what did congress socialism or require yeah and the always a balancing between the goal of trying to get as much money into the plans as possible and the goal of allowing employers to continue that wanted they want to drive employers out of the system so one of the purposes of all these various relief provisions is to make a withdrawal i billy a business cost something in line with the contributions the employer had previously to go shit i do want to address a few of the things that mr hart said because i think they're simply wrong first is if you look at title twenty nine of us see there's a table of contents and the about thirty titles of the various sections of title twenty nine only one of them is called labor management relations the very term used in forty two twelve and what's in that section the national labor relations act and a couple of other statutes that affect and the labor management relations act and the welfare plan reporting act so there's always roy exclusive to exclusive to the elem r a but it is the sole reason so when he says they could use the word back but they use the word wrong which broadens it a little bit you're saying it's not broad to cover everything that he has with labor management exactly in the world except we know that we would gives us the clue to prove your point there are a couple of things that get us that not only the supreme court opinion in advance like way concrete but you're talking about laws that affect the bargaining relationship between you know employers in addition to the national labor relations act you've got the railway labor act that governs airlines and railroads and you may have state labor relations act that govern employers who are exempt from federal law such as farm workers public employees and that sort of thing so you may have  has an obligation to contribute under either the national labor relations act or another labor national relations law or the collective bargaining or being expires because as in the sense like make concrete you know the employer continues after contract expiration forty to twelve allows the timing of the withdrawal to be whenever that obligation under the law ends even if the contract had previously expire so these are the laws that govern the grey should p p a did not change that there's nothing in a that affects the collective bargaining agreement or that requires the employer to change a collective bargaining agreement the parties to the bargaining agreement can negotiate a contract that has zero contributions to withdraw that was the whole or camp case where the court with the fund was arguing in that case an employer in a critical status plan can't withdraw from the plan because so you've got these required rehabilitation plan in and the court said no no no all the rehabilitation plan does is set up a number of schedules that have been what an acceptable collective bargaining agreement is if the employer is going to continue to contribute if the employer and union negotiate something different the trustees have two options they can change the rehabilitation plan to reflect what the parties bargained or they can't kick out the employer but they cannot rewrite the contract there's nothing in the p p a that allows them to rewrite the contract in addition the internal revenue code includes all of the p p a provisions there are parallel provisions they're all in the internal revenue code and mr harken sees the internal revenue code as not a labor law it's certainly not a labor management relations law it's also important to point out that in order to be included in the payment formula it has to be a contribution rate and only if it's part of the contribution great do you then turn to is it part of the obligation to establish that their contributions because the statute the fines says surcharges are to be treated as contributions for collection purposes and ask contributions in determining what it is to be a delinquent contribution what they didn't they emphasize contributions in their brief they should have italics size the word house because it's the word as that's important and they would have to read as out of the statute in order for the surcharges to be contributions i want i do want to address some of your moves what about mr harper made an interesting point i hadn't here said it's effective beginning world it was a good reason why congress would not have gone retroactive a number of employers may have been assessed payments based on surcharges and not contested right they made the payments they let the ninety days for requesting review go by under then a political law that's final there's no appeal if congress had made this section retroactive with those employers of the day will come back and say wait a minute we're entitled to a refund because we make contributions based on what we thought was the law and now you've said the law is changed give us money back so they would have opened up a whole furnace nest by making finally they may just have decided well we'll let whatever cases are out there work their way through the system we don't want to interfere with pending legislation so those are i think three very good reasons why it was prospective only and sutherland in statutory interpretation says that if there is uncertainty as to what the long means then a change in the law is deemed to be clarifying and not a change in substantive raw only if it is accepted understanding of the law that everyone's unhappy with is a subsequent change being to be a change in substantive law there's nothing in the legislative record that helps us i'm sorry come here has nothing in the legislative record that helps us nothing in the record as well yeah in the in the w e r a amendment that mr hart relies so heavily on it's our view that when it said withdraw liability and that kind amended to be unfunded vested benefits that was to correct an erroneous statement in the prior it was a technical correction because in fact withdrawal i believe is defined in eight thirteen eighty one as unfunded vested benefits adjusted by all these other things and only for purposes of unfunded vested benefits to the surcharges have to be excreted because that's the only way that referred to amounts rather than contributions because the contribution rate section forty two nineteen says contributions and surcharges aren't contributions they didn't need to amend that section and also by excluding the attributable rule part of the u v b allocation from that exception the effect was so that employers who paid surcharges an attribute to rule plan get the credit for the surcharge toward their own funded best benefits so in effect the amendment made sure that employers who paid surcharges weren't hurt by paying surcharges that's the overall arching reading of that little section of the risks of that affects the calculation of unfunded best benefits i briefly want to get to the multiple rates section the fact is woodbridge every month counted up the contribution base units who are eight different rate groups and for each of those rate groups in february two thousand and eleven they multiply those are only examples in legislative history of rates changing from one year to the next and it's also very and the only reference to the payment schedule is the reference to it being in line with the employer's previous  teams simply says that any rule adopted by the plan under the statute has to be applied uniformly so the plan asked the p g see if highest rate was clear were if they could use this different approach to the term of highest rate which is we look to the different contracts in that case each contract had only one rate the p t c said yes you're right the statutory intent was to have the payment replicate we're be similar to what the employer had previously been paying the employer previously played paid at three different rates for three different agreements so you can look at the statute that way in was the highest and that becomes the rate under through our ability that's the exact question that the trust asked the p g c in ninety dash two and p g she said no you don't have to look at the one of the three that were pay simultaneously you can look at all three in our case we have eight eight highest rates the rates change over time they were not for one year to the next in each job classification and rate group so the highest was the one in it try to be very brief on this hawkman going through a sort of scattershot number of arguments on the i will try to just address some of the major ones that she made the first one is that again what she is maintaining and what her quiet is maintaining is that somehow her legislative history can override the clear words that the statute you just pointed out it's established interpretation of statutes that you don't do that when you have a statute the square on we collect the surcharge on the same schedule as we collect a contribution the first run of the same letter the first promised to the argument that you're making is that the second part of the statute with respect to the highest contribution rate is clear and totally unequivocal i can't tell you that it actually is i think that is the most reasonable interpretation of what is met by the obligation to contribute that includes highest contribution right and one of the art in the arguments that i've made as to why that's a reasonable interpretation of what is meant by highest contribution rate and remember the very second part of the formula is you rates your pick the highest and in this case we've got a couple of things reasons why the imposition of the surcharge remember the surcharge is more than just a percentage it means that say if your contribution rate is one dollar and you are then subjects or charge then now your contribution rate is becomes a dollar and ten there are two reasons why that those are both obligations to contribute and therefore are part of the highest contribution rate the first is that it is required by this related agreement in the trust agreement of the sixty three pension try and there's lots of law which we've cited that says that an employer that sovereign was referring to doesn't really relate to the well it may relate to the relationship between management and employees it doesn't impose any specific obligations on anyone to contribute here we've got a statute that does impose an obligation on a employer to make additional contributions when you take a look and also when you take a look at how the a has changed it is clear that congress has now twice changed its view as to how it's going to look at this as a pointed out the original p p a said that you didn't take into account church for any purpose except for the purpose of allocating unfunded vested benefits then when where a two thousand and eight passed congress basically reversed that saying then that you don't take into account surcharges for purposes of determining or allocating unfunded vested benefits but then said nothing about whether it was to be taken into account in considering whether it was a highest contribution right then just last month congress changed his mind again and now stated well now we don't want it to be included for any purpose in fact prior were had a schedule imposed on them by the by rehabilitation plan or funding improvement plan could be excluded from this and now the statute says that you don't take into account in considering what  highest the highest contribution rate is a surcharge or any other contribution increase provided by under the requirements of the pension protection act i think that it's not fair to say that the statute in this respect is absolutely clear on where you're going i think that what is fair to say is that the reasonable interpretation of the statute when you especially when you look at how our contributions are the payments on their withdrawal liability also regarded as contributions now in the forty two eleven although those are regarded as contributions they are excluded specifically but anyway the point i'm making here is that when you look at the statute as you look at it in the context of the of the entire a scheme and you look at it in relationship to how congress has changed the law since two thousand and eight since two thousand and six i think it's