of my client's pension and newly benefitting contributions and the suspension of his welfare coverage based upon what we consider to be a clear error on the part of the trustees when they rendered the decision to revoke his benefits and his welfare coverage we are in this case stems from what actually occurred in a two thousand and eleven case which was also decided by judge spat when the when judge backed grant a summary judgment to the respective funds were defendants in this case that my client and his company which is coral and his mother's company which was o k leasing constituted a joint employer and as a result they obtained the funds as plaintiff obtained a judgment for unpaid contributions for men who also two hundred two members but so what do we do with it well your that that goes to the overall picture as well are some rejections should be granted but i think just to just to jump forward i think what would is the most telling that the plaintiff incorrectly received credit for the hours he claimed to have worked at oakfield now the trustees went back and revoked seventeen years of pension  and the new contributions seventeen years that had already been given to my client acquitted two zero to two to the plaintiffs well if he had defrauded them the fact that ok fraud would have constituted basis to revoke his pension so you're telling me that congress an act of a statute that says that as an employer if i defraud my employer with regard to the credits i'm entitled to for my retirement that th employer has no has no remedy against me you know you're congress that's a stunning look congress said that that that if if there was fraud ok that involves the fund itself by the participant paid his employees in cash that is a fraud on the welfare fund you are you are you are correct well again all that was performed there there was there was an allegation of freud that for a period of time a very very short period of time that several of these employees who also two and two members received their wages in cash from that both the trustees and the lower court extrapolated that for the prior seventeen years regardless of all of the steward reports which were documents kept by the unit does it says in cases of fraud the with the welfare plans as in cases of fraud or intentional misrepresentations that's what it is to be yet your coverage may be rescinded retroactively upon thirty days notice now he's a father seventeen years he got coverage for his health coverage i suppose you are there was no proof of they took it back from the prior seventeen years it was due was no proof of any nature was whoever the for the for that for the years preceding mr bazley was allegation why did they have to prove it for seventeen years read from was from the welfare fund judge that ruled that welfare far right that's what i'm trying right judge just by ruled that in the underlying case the trustees did not allege for the purpose of of revocation of the pension and new  participant who committed fraud with other members of the fund by paying them cash so that if that were the case then they all committed fraud but they only accuse my client if you were an employer though which again depends upon which hat they they want him to fence and do you much good to say that several other people also should have been thrown off but you are and if you was an employer an employer of coral coral was the employ these men if coral paid those members cash for a small period of time you ran core right yes he did own and he ran it he ran it yes ok he paid the kid he paid the cash but but but that does not constitute the type of fraud which was which the welfare fund intended to be the basis for revocation of welfare covers what is almost never happened and to particular little acts because the mind of man can always think of new ways of committing fraud and paying cash happens to be rather primitive one yes that is true ok or not but but again you know we are suggesting to the court that the that the reading of the welfare plan document ok is limited to a claims and and these are all after the fact we're reviewing what they had in front of them and your is johnny come lately revelations with regard to the fact that he actually was doing union work doesn't do anything to undercut the  validity of the earlier decision you had const in regular extensions and it's all excuse me it's only after the fact that you finally produce the documents why should well what are we supposed to do we're supposed to condone that you that the case though no it's not a shark it's not the case because i'll take a look at the record and you can because it's right because if you are a looks at the at the student reports which are documents kept by members of the union designated union six hundred six six eleven and with a timely admitted into evidence you are they were they would well there was never a question of evidence they were apart we we we requested that they be part of the record and they were said implicitly considered by the trustees as part of the record but what they're doing then is that they are rejecting their own steward reports they are saying that every student report for this drive or for any driver was few of the things that appellant's counsel certain that as far as the welfare phones fraud definition there are examples of fraud but they are only examples they as you mentioned your honor don't cabin fraud in fraud is fraud and the arbiters of what constitutes fraud are the trustees the trustees have the power to determine to interpret the documents of all of the plans including the welfare fund and in this case the trustees decided that the cash payments which missed the appellant admitted to in a deposition that those cash payments constituted fraud and on didn't over review judge spat agreed with the trustees after looking at the welfare plan yes  second as far as the question of what was in the record there are as you've seen from the briefs two types of steward reports there are the barn steward reports those the barn stewards are employees of the appellant so within the control of the appellate and so the reason the trustees decided that they couldn't trust the barn steward reports are that first they were under this individual's control and second one of the barn stewards mr bacile lino wrote to them and said i was told to lie on my barn stuart reports that he never saw them driving a truck that is the same person yes and he had been a steward for a certain amount of time it was in the records at six hundred to six eleven i would check but i believe so yes ok so these were in front of the and and front of the the trustees at the time of the determination they were available to the trustees they had been submitted to the union and then the union submitted reports on those to the trustees so the trustees had them available but they had to discount them because they've been told that they couldn't trust them  what what what did they seek that they could trust they sought underlying records which section to also be produced by employees of mr no no the underlying records would have been knows company they would you would call the driver tickets exactly the driving tickets would have been pretty would have been in his possession a risk the two zero nine requires an employer to to the record closed and the only produced seventy potentially well there's one ticket a day usually and we're talking about seventeen years worth were seventeen thousand hours so in a year's w sprinkling of days over a three year period in addition there are headed up to the minimum amount that would credit him  with a quarter or a year of service i haven't done the analysis it certainly wouldn't give him anywhere near the seventeen thousand hours that he's trying to in order to get it were typical to produce these documents contemporaneously it was seeking benefits from the fund only if the funds have reason to doubt the remittance reports usually that they rely on the reports they don't ask for the tickets but it's your view that they have to be retained for seventy years yes to arista to a nine day makes that clear and in addition to taking forever until the employee applies for benefits they need to be there's no time limit under arisa two or nine unlike section one of seven of a receipt which is what the appellant's council has been referring to in briefs that sets a floor of six years but since you might qualify for benefits fed if it so you might apply for benefits some decades after qualifying for the it makes sense that there's no time limit and that's what judge spat agreed with you said the argument that these benefits are some of them were vested well as you said you can't vested in benefits that you don't have a right to if you haven't performed covered work in the first place the both the annuity and the pension plans require  enrollees participants to perform covered work and if you haven't performed covered work you can't qualify for the benefits in the first place the difference between what is required to deny somebody benefits where the accrual benefits toward a vested position and what is required to divest somebody of a vested right but there's no way to vest in the vested right if you haven't actually done what you need to performing of getting five vested credits so be a certain amount in each year and then five years total and it also depends on the continuity of the years and a few other factors but again that's neither here nor there because as far as the trustees are concerned he never performed he hasn't proven to their satisfaction that he even performed the covered work in the first place so he never vested as just wesley pointed out he can't you can't defraud the funds into giving you a vested benefit in the first place in addition as far as the question of proof the appellant's council mentioned that there were certain documents that the trustees relied on as judge spat mentioned in his opinion there's no rule of evidence for a benefit determination the trustees received a letter from a particular former employee of the appellant's and received also received a statement from another former employee they didn't rely only on those pieces of evidence but this is  summary judgment so the idea that they may or may not be credible because of who is making the statements doesn't matter at this point those were two pieces of evidence that the trustees had before them because he didn't get anything into the record in a timely way there was nothing from the appellant to counter those two pieces of evidence i just want to point out whether through the thing about shop stewards in addition to the barn stewards who  employees of the owner of the company there are on site stewards who are employees of a different company and those onsite stewards did verify that the appellant worked for a certain number of hours and the back over seventeen years these student reports is are by far the very best evidence of the fact that my client was was doing covered work for that entire period of time there was never a question of a nature whatsoever except for the period the two year period that mr best leno said he never observed to drive a truck out of the yard that there was never a question that my client did not do covered work from one thousand nine hundred seventy two to two thousand  produce the documents and do you disagree that research requires them to maintain the businesses were met require to maintain those records absolutely are first of all number one who keeps records even if you were an employer i still have my know that when he when he finally does he produces seventy tickets come out your honor we relied and we heard one thing for you to come in here and to say well the they couldn't believe they they had that we should issue a rule of law that they had to believe these documents when they've got an affidavit from somebody else and said i was told to do something else when he's given another opportunity produce a document you say well who keeps talking come on here aren't we so what's the rule of law you don't constitutional but it is beyond what is required by ressa arista section world seven says at a minimum documents to prove an employee's benefits or to be kept at a minimum of six years blue or not is not uncommon for women to control trucking companies anyway thank you thank you both will reserve decision in the case of bankruptcy banker is thinking on submission the case of gal