despite the hyperbole here this case is not about the typical government contracting relationship and the fund is not saying here that the typical government contracting relationship subjects the government to withdraw liability rather this case presents a unique contractual arrangement and system where pursuant to its own contracts the deal we requires its contractors to participate in a particular pension fund and specifically this pension fund and requires the contractors to make contributions to this particular pension fund and specified amounts all as terms and conditions of the deal we contract and is there any specific specific language that requires them to pay contributions but you are relying a least in part maybe in large part on the reimbursement obligations are correct as well as other as well as other theories  contributions to a specific fund and specific amounts and is finding those controversial on that point why doesn't the logic of trans personnel apply employers that were were arguing over over liability a pension fund was not was not involved the pension fund was not making a claim for the issue of duty to reimburse as distinct from duty to contribute was and was an issue in that case right yes your honor and that distinguish those two duties and i would say one is not the other for i would say that the distinction in this case is that the contracts again in this particular case require contributions to a particular pension fund in specific amounts and i don't believe that was the case in transpersonal i believe that there were you just told me that there was no language that specifically talked about contribution by to a proposed to distinguish trans person person no one basis yes you will another basis well there's there's there's the woods the general the terms of the contract yes require yes it's requiring participation in a specific fund and requiring contributions in specified amounts there a difference between the escorts and the bus drivers yes your honor i believe i believe there is with respect to the escorts the contracts are quite clear that is it is a it is a pass through situation to the dia we is obligated under the contracts to  express the reimburse the contractors for one hundred percent of the contributions that they're requiring them to pay in the first place and that's a line a line item happened in the year we didn't do that or did court that the that the evidence in the testimony was is that each of the subject contractors were indeed reimbursed one hundred percent of the contributions by the deal  guess i don't understand i know for the it seemed to me that the bus drivers well what specific to happen if the contribution wasn't made the deal was supposed to withhold payments right yes and every time they found out that payments were made they didn't withhold the payments they paid them destroyed i mean they they withheld the payments from from the going directly to the employer withhold a portion of their service contract or service check and pay that money directly to the to the fund that happened when they were notified in instances in instances yes but that really wasn't wasn't part part of the of the facts and circumstances just trying to find out how we got to where they were they are notified that the pension payments weren't made for the bus drivers so we have that provision and they  and their notified hey this was in may they would call that they pay it in at some point they must have not been notified i understand your out of question this case is not about a delinquent payment of contribution right  there not a change of contract right correct or are ok it's about withdrawal liability right there because they didn't require that going forward and the trust fund would like that obligation now to be imposed on d  is claiming that the deal we is also liable for that withdrawal liability is that going to employer single correct there are four theories one is the obligation contractual obligation to contribute one is alter duty under applicable labor management relations law and the key issue here in this case is the meaning of the phrase applicable labor management relations law this is an issue of first impression before this court is the only  court that has directly addressed this issue is the third circuit and its decision in the cns wholesale grocers case i note that that case was decided after the district court rendered its decision on the joint employers and the c whole so grocers case asserts the third circuit held that the phrase applicable labor management relations laws used in the statute is not restricted to the n l r a but rather means labor management relations law generally and the court there based its decision on the supreme court's holding in the bay area laundry case that an obligation to contribute under the statute can arise and i quote from general labor law prescriptions and exactly i mean it's a common a common law prescription that is apple to the deal we through the federal common law and through a risk which incorporates labor law principles but what's the  you that you have an obligation to contribute or can be liable for withdraw liability as an employer as a joint employer isn't that doesn't the joint employer doctrine just impose liability for violations of other labor or disagree with you and determine the video we that agree with the dio we that applicable labor management relations laws as that is in thirteen ninety two  i want to go back to whether there was a contribution and now it seems to me that there is a difference between a contribution obligation between escorts and the bus drivers there really when they came to the escorts there was basically a pass through obligation in your view there was an ok how was there a pass through obligation for the bus drivers we weren't allowed to do discovery on the bus drivers because of the the status that was dismissed at the pleading stage but but but i believe that just cover you would would would show that the the payments under the contracts that the the cost of the contributions were in essence baked in to the payments that were negotiated and received indeed these contracts were in existence for thirty years but we have each of these contracts for these contractors if you look at the contracts in the record there's there are sixteen extensions are extended every out years and every time they are in extended i believe that the discovery if we were allowed to have it would show that the the prices paid under the extensions and i guess is the answer you giving me that legally there is no difference between the issue of whether there was a contribution obligation there is no difference between the bus drivers and escorts and saying they amount to the same  thing your honor yes they amount to the same thing but i agree with your honor that that the that the obligation in the contracts is is is is much more direct and clear in the contracts because the contract with respect escorts expressly has the the reimbursement provisions and it is a line item of the the reimburse person that schedules which are attached to the contract thank you that's a chunk of your reserve three minutes good morning your honour's may it please the court melissa hill for morgan lewis and baucus on behalf of appellee new york city department of education the new york city department of education is a government entity as you've heard that contract well that in the first instance provides education to new york city schools students it contracts with dozens of private companies to provide school bus transportation services also for those students throughout new york city plaintiffs claim seek to hold the d offer the pension obligations of its private contractors and those claims threaten to turn every manner of government contracting and in fact private contracting on its head you i think that your honour's are correct to focus in the first instance on the contracts and whether there is a contribution obligation for the drivers or the escorts or both under the actual contracts and the deal is position and i think the contracts are very clear as as judge correctly find found th argument below the did not point to this argument to the district court as a means by which the dio is obligated to contribute and they simply repackage their contractual obligation claim now on appeal to point to this reimbursement provision and in fact fault the district court for not digging through the contract to find this particular schedule all that includes that reimbursement those reimbursement options and then i'll note that the reimbursement option does only appl escorts and not to the bus drivers and it is in fact an option under the contract and it is not it's not mandatory in every contract you got your said there was a line item no in the budgets with resource or in the car yet i guess of the budgets with respect to god sure your honor if i may the the the reimbursement provision if that's what the contractors select if first they have escorts because some of these companies don't even have escorts and second if they elect the reimbursement rather than the it's like a perv option that they could have elected as payment it's all in the contract it's essentially a cost plus contract and it says we'll cover all these things plus administrative and one of those things listed among all the various other items is contributions i e you have to pay the employees that are working on our contracts but you have to pay the employees and whether they're escorts or school bus drivers there is nothing in these contracts that says the dio we will pay these employees or the deal we even employs these employees and in fact the cut the e p which is really the provision of the contract that the plaintiffs point to the employee protection provision sells says very clearly the contract the contractor shall contribute these amounts and the contractor shall pay all such amounts to the funds and all of the cases that interpret whether there is a contract whether the a contractual obligation to contribute started with korea shipping in one thousand nine hundred nine from this court and every case that is interpreted korea shipping since has said that the court is to look at the contracts and say who has assumed the contractual obligation to contribute to the pension fund on behalf of these workers one or two terms of the applicable labor amounts absolutely your honor and i think that's separate than the contractual obligation question because it's a separate section of  the thirteen ninety two a contract a political read that that's another basis correct yes i absolutely agree that there are two bases sees it's a contractual obligation which we do not have here or a duty arising under political labor management relations law the supreme court has said and judge found that that means the n r a or the l m r a which are by their titles labor management relations  something else was evaluating whether the pension protection act was also a labor management relations law i think the court came out there the end said that well it didn't apply there in that instance anyway so they didn't reach that decision  but but it comes down to whether there is a duty under a labor management relations law and i think judge lou you pointed out correctly that even if this is some federal common law doctrine   are pointing to something along those lines but in any event the joint employer doctrine doesn't give rise to duties in it up itself it imposes upon entities who could both be found to be employers under a particular statutory definition the obligations under that statute so we were just in the previous case learning about our hearing about the title seven two entities could be deemed employers two different entities c say there are statutes that would hold that say this is what's an employer and if two entities meet that definition of employer they will be bound by the obligations under that statute so if the deal we and some other outside the context of a particular statute where it would be appropriate to view the city given how heavily it's involved in a particular area as a join the joint employer doctrine is applied i haven't seen it applied otherwise i'm so whether it's osha or the f m a law or the f l s a title seven it all looks to under those statutes what does it mean to be an employer and is there more than one entity that can qualify under that statute so bringing it back to thirteen ninety two eighty two which is a duty under a political labor management relations law for joint employer to give rise to withdraw liability or an obligation to contribute let's let's use the environmental law where there's life there's potential liability based on employer stones and let's say that in this case the city  so heavily involved that these contractors could not do anything without specific approval from the city in every case with that th qualified the city as a joint employer if it was this was in f l us a case it could there could if it was a title seven case and they were alleging discrimination at the hands of their employer and the title seven test was applied certainly but that's not this case this case looks at an employer for purposes of a contractual obligation to contribute or a duty under labor management relations law there is not a separate definition of employer where if the deal he was found to be a joint employer it can be on the hook the m p p a just doesn't it is not set up that way like title seven for example is in title seven has a test like the f l s a has a test like osha has a test that looks to whatever it means to be an employer in those circumstances and whether two entities can can together constitute one joint joint employer occupy the same space occupy the same space correct and so for  to i don't have a test in front of me but it looks to who is who is setting work standards and who is setting who's paying wages and things like that there's no allegation here that we're paying wages there and this is not an e test in any event there is not that type of test for joint employer status under the m p p a because that's not what it means to be an employer under that statute as korea shipping said it's somebody with an obligation to contribute a contractual obligation to contribute or a duty under a labor management relations law and we come back to thirteen ninety two a two there is no duty that the deal we can be imposed that the deal we can be subject to under labor management relations are there's no problem is there are contract out of an obligation to make a contribution no not under the law i know and certainly the district court i think found that entities do that in other courts have have found that as well and that's why the korea shipping decision and the cases that have interpreted it look to what the contract says because parties contract  for economic obligations all the time do i do have a couple more minutes left and i know that we didn't touch much on single employer alter ego i'm happy to address any questions that that your honour's have before the pla have and should have dismissed both rule twelve because the allegations just weren't there but if you look at the two tests even though the practical result is the same that it binds one or more into that they're very similar they are similar but the single employer test and i think if i read judge pastels decisions correctly the single employer test looks to whether there's allegations that these entities act as a single integrated enterprise not at arm's length and that they constitute a single appropriate bargaining unit and the court found that on that test which is a distinct test for single employer status the fund had not made those allegations at the world twelve stage to say that these are a single integrated enterprise  alter ego test on the other hand is more flexible i would submit and there are factors five or six factors depending on how you read the how interrelated you read the factors that that none no no one of which is controlling no one of which is dispositive and on that more flexible test that the district court said well there's there's allegations of some of the factors but not others so we'll let this go forward and i think that's how the that's how you can reconcile the difference even though they're similar tests i think  or we should adopt the same rationale the obligation to reimburse for contributions made by another is not equivalent of an obligation to contribute in the first instance and he says your opponent says that case is distinguished and i think there are some facts that distinguish it but what would you say are the key things that make it it's helpful to us i think again it looks to the contractual language and the obligation in the first instance both in the transpersonal case and in the case here the obligation to contribute to the pension fund was on trans person now in that case not roadway and on the contractor is in our case not the deal we and the court found no contractual no assumption of that obligation in the parties arm's length transactions parties arm's length contracts so look to really what the source of the obligation was in the contract and found that the the reimbursement provision just said we were to reimburse you certain costs if there is a shortfall we're not making up for it and that was something distinct that the court in the transpersonal case found distinctive that these are these are once you've made the contributions we will reimburse but if the if you if you don't make the contributions we're not agreeing to make them on your behalf we're not acting as as your agent we're not guaranteeing them and in separate authority a guarantor would not amount to a contributing of a gore either but i think those facts are disc are distinctive in the transport personnel case and apply equally i realize we both have gone over so i'll try to just to just help this is helpful at least so this is just a few things we've discussed the transpersonal case and the reimbursement and i just wanted to  reimbursement obligation is an obligation to contribute elsewhere in the decisions from the eastern district of pennsylvania that's correct your honor that's correct addressing quickly the joint employer doctrine again  it sounded to me like the deal we acknowledge joint employer status under any labor law for which it is not exempt let's take f l s say for example i know employer is that is the same test the joint employer is to be a joint employer under an l r a or f l i say it's whether you have the same test it's whether you have control joint control  over the employees it's focused on the employees and the control over the employees were as like an alter ego is focused on control of ploys a management but it goes further and deals respect to that when the motions missed something the korea shipping case because the korea shipping case there the there was no express requirement that the carriers actually pay the contributions the court looked beyond that and found that contractual language whereby the carriers were obligated to fund the contributions was sufficient for an obligation to contribute