good afternoon happy election day your owners i represent a group of eighty some odd of former flight attendants of world airways who were faced with a tremendous diminution of the pension that they thought they had after working for the airline for fifteen sixteen years when the airline went into bankruptcy in two thousand the airline or the union would pay for past service credits because they had all been employees of world before that and had been in different union in a different pension fund and then they came to discover  when the bankruptcy occurred that their prior service prior to one thousand nine hundred six was being cancelled which for many of them meant a loss of two thirds or more of their of their new members with the approval of the secretary treasurer it gives pension credit to all members back to the date of hire after vesting in other words if you work for the company for ten years what's the what's what's the records  eight to one twelve and then it says this pension plan has a cost to the union of over seven hundred thousand dollars which we are willing to pay to secure a better tomorrow for our members and this was the people of members will increase in help the funding levels there is a risk for a fellow members of local to ten but they are willing to assume the risk for us so they basically told the new people who are about to join their union and affirm their first this is their first contract that if you if you vote for this we're going to assure you and the union is going to pay if the employer doesn't pay for it even though we've secured a promise that they'll pay for it we're going to pay for it and the the members  did that and in return they gave up a certain they were also told that in return for giving up certain wage wages that that the employer would pay for the benefit and also they were told the at a certain time that it had been paid for this is allegations of the complaint is the toby six motion here so it's the the first issue with respect to the  alleging two things were alleging a either that a false promise was made in order to get the people to leave what they had and joined something new that that's the fraud claim and second is there was a print at this point everyone is right everyone in the know they're voting whether or not to to to to move over to a new pension this is part of it is they're giving up an old pension plan that local that the world airways had and moving into a new pension plan so they they had they don't have a contract yet and i'm not it's not clear from the record whether they were members it says in the car in their complaint that that that they didn't become members until after this contract was negotiated that's what it says in the complaint it also says now the other claim we have is that there was a promise not just a for not a fraudulent promise but a promise if the employer doesn't pay we will pay it that's a contractual promise that has nothing to do with the formation or negotiation of the collective bargaining agreement has nothing to do with grievance handling in connection with the collective ringarooma language in the pension plan but this has nothing to do with the pension plan this well the pension plan existed before the pension plan had been in existence for most of it was a multi employer plan that had existed for many years so they were becoming members of this plan the plan did provide for past service credit and the plan did provide for past service credit if the employer paid for it and if the workers worked a certain number of years invested in the in the in the plan then the the past service credit could could take effect and the workers the plaintiffs here all got letters multiple letters over the years saying here's your benefit you this includes time back and it goes back when it is fifteen years or twenty years or twenty five years so they all were led to believe the money was  page i believe it's at page ninety one yet in the record at page ninety one it doesn't read as simply as the as the as it's not a simple language as is set forth in the brief from the from the pension fund because it talks about its is the plan shall not be liable for benefits that cannot be paid out of net contributions and what the plaintiffs asked to do since they had it had been represented in them a that either the union was going to pay it already been represented to them that the employer had paid it they asked to see the net contributions so that they could could properly assert that they were in fact that these were benefits i could not be cancelled they were denied any access to the record and all they were told is in a letter from counsel there's no record before here other than in the record here there was no record before the district court other than letters from counsel that said there were no contributions good afternoon may it please the court my name is anthony casey of proskauer firm representing the local two ten pension trust fund there's only one claim as you've heard from appellants counsel brought against the pension fund  that is a claim for benefits under five go to a one b of a reza and as we discussed a little bit here what the plaintiffs are pellon seek is additional pension benefits from the fund based on their past service credits if it's if it's determined by the trustees that it's in the interests of the plan the actuarily financial interests of the plan to cancel the credits that they would be able to do that so the plan does recognize past service credits for not only former employees of world airways but for presumably other employers employees of the fund they can do that even after they promised that they would be granted past service credits i think the promise is just decide not to do it even once even if they paid for that even without financial distress they could just say when i pay it if it is determined by the trustees that their plan is facing financial distress on an actuarial that is the only they says the plan is permitted based on the plan terms to cancel the past service credits but if you assume that the seven hundred thousand dollars had been paid if you assume that the seven hundred thousand had been paid so that during this administrative process the plan actually went back looked at the records and said oh yes either the union and or world or someone else did make that payment to the fund so these people would be similarly situated with the rest of the people in that time similarly situated in the sense that what well i don't i don't think so because they're still passed service credits it doesn't transform credits into current service credits there or credits earned for a time period where the contributing employer wasn't actually contributing to the plan so the question is then you look at that provision and you'll see that net contributions provision that appellant council pulled out and but you'll see that even if it was the case that the the money was funded which it wasn't because that's the basis of the rest of the appellant's claims against the union but if it was you would see the do an analysis and say ok what are the net contributions and if there would be here if there was no actual funding there wouldn't be net contributions and important to realize also that because of world's failure to make the record requisite it really put this pension fund in a lot of trouble they had an eighteen million dollar which are a liability that they owed to the pension plan and truth be told and it's here in the administrative record that assuming that they're that the  entitled to these additional pension payments if the fund was actually forced to make those payments were going to the actuary in the ministry of record it would put the fund in a state of insolvency and then that would mean that the people take over the fund and the appellant's would get less money than they're actually getting now so you explain to me why you would never show your records to the plaintiffs the records of contributions you just sent an orders report they want to see the whether there was a contribution or not i think those records are not as simplistic as it sounds i mean this is years of contribution records made by the employer to the fund that was reviewed independently by the actuary and it was determined that the contributions paid in were the contributions owed for the time the work being performed during the time that the employer had the obligation they weren't asking what are the funds record all they were asking to do was to try to ascertain whether this seven hundred thousand dollars on behalf of a discrete number of employees had been made and looks like you took the position that we have no record of that requests that appellant's made on the administrative level was to sit down with the funds actually have the pension ing bargaining team sit down with the pension funds actuary and and poor overcontrol me that the pension fund had no interest in figuring out whether the seven hundred dollars has been actually paid or not i gree with your honor that they did and i think that they looked at the records to see whether or not the seven hundred thousand had been paid and they reported to the trustees that it had not and the trustees only have to act reasonably with respect to the administration of the claim without  and invited the plaintiff to submit further information as to say why they assumed that it was paid how could they submit further information if you had the records that's the same upside down us they have to submit further information and you wouldn't turn over the records what we did was checked our own records to make a conclusion to report back to the trustees and reasonable reliance of the plant professionals report back to the trustees that there was no indication of this contribution within the records the trustees made a rebuilt reasonable determination that the money was never found and on that basis would leave undisturbed there and the records would support your presents and why didn't you ever turn them over at the at that time the trust not determine that it was necessary to turn over records that would show which only show the absence of a contribution why some but why didn't you do it they asked for it seems reasonable to me i don't know i don't know this  the way the pension plan or the union works they asked to see the records to confirm it in their own for their own benefit that no contributions were made and you kept refusing to do so trustees felt that the review performed by the plans actuary and the and the recommendation that was made to the trustees or the information that was given to the trustees that no such contribution ever existed that that was adequate for them to make a determination at the administrative level of the c against local to ten the district court found that those claims despite the way that they were pled were in fact doody a fair representation claims and applying the six month limitation period set forth by the united states subject to the six month duty of fear of presentation yes and limitation yes or under longstanding precedent these claims involve the union status as the collective bargaining representatives of these individuals and the claim reduced to its essence is that certain promises were made in collective bargaining and that they turned out not to be true now in order for a court to adjudicate those claims it is necessary to interpret what is in the we would have no knowledge with respect to whether world paid or not because they make their contributions directly to the fun with respect to this claim of the union promise that it would pay some of your client promise that it would pay seven and i would respect the one twelve this pension plan is a course to the union were seven hundred thousand dollars which we are willing to pay to secure a better tomorrow for new members your honor in the hundred ninety six before people became a little bit more sophisticated unions did not distinguish between the union itself and their plan hence the name of this plan was local to ten's pension fund it is obvious that when they were talking about the cost of the union was the cost to the members of the union who are already participants in the fund and where the fund would have to extend credits in order to give them retroactive contributions proof of that your honor is the second argument that we have in this case which the district court did not need to reach and that is it is plainly unlawful for a union to make contributions on behalf of referring where you are jewish food is read i believe they're referring to the membership of the union who are all participants in the plan who was have a stake in the plan and when the plan itself extends and is providing coverage that isn't paid for it is costing everyone in the plan a proportional share of that unfunded liability now i think in two thousand and sixteen people are a little bit more sophisticated and they understand that a pension plan is a separate legal entity but in that teamster vernacular in one thousand nine hundred ninety six it was common for the plan and the union to be referred to commonly we on your letter had are willing to pay to secure a better tomorrow for new members correct isn't that what assess again but it's referring to the union and i put it poorly written but it certainly can't be suggesting that the union at of its own treasury would make contributions on behalf of members and that would be patently illegal the plan with a no that provides but how would they know that how would an individuals kno it sounds like a scam the person who received this letter doesn't doesn't have the command that you have the labor statutes i doubt that they did  so why isn't this plausibly claim for some some form of misrepresentation well i think that's how it's been planted but the point is that it is bound up with collective bargaining it's certainly a duty of fair representation allegation but the fact is that pointis waited two and a half years to assert this claim after they were advised in writing that your benefits have been cancelled it's this these claims s limitations we want labor peace we want to be able to get on this is more like an arrest a crime well your honor i would i would concede that it doesn't disturb a contract that's twenty years old but it certainly has the potential if it had been asserted back when it was first you know back close in time to the time the contract was negotiated these kinds of claims absolutely can undermine the collective bargaining relationship  that collective bargaining agreement existed before these plaintiffs joined the union or joined the pension plan correct there's no question of labor peace there's no need to settle this quickly and it looks like an arrest to claim to me well there's the cut but the company's out of business so there's certainly no potential for there having any disruption of labor peace but from a policy perspective that's right compulsory underlying the six month statute is to get these people together and provide labor peace that's why this type of short statute but this type of claim your honor which requires an interpretation of the collective bargaining agreement had it been asserted close in time could very easily have disrupted the collective bargaining relationship but they relied on this language why would they assert a claim when they were sure everything is ok they were assured that you would make the payment if the if world airways  so how could they have made a claim before it existed well they could have made a claim within six months of the time that they knew and they instead waited two and a half years right and i really think that it seems more promise is that they agreed to ratify the collective bargaining agreement you can't possibly analyze i mean they're arguing on one hand that the union promised that they would if they negotiated a contract that would compel world to pay it so obviously if the contracted local to ten negotiated compelled world to provide these benefits then they have no claim against local to ten get in or do to analyze that first point you have to look at the collective bargaining agreement ok and again that is what underlies the policy considerations that were expressed by the cordon and the need for a short limitations period  it investigate whether your client did what he did the timing of this case was not caused by anything that happened between the employees and the union the timing of this case was because world filed for bankruptcy and sought to discharge its withdrawal liability eighteen million dollars that's the only reason here that this matter was raised had they not discharged this huge withdrawal liability i don't think anybody would be here outside here aware that the plaintiffs urge us to follow the third circuit on the statute of limitations the adams case i certainly do and i would s  especially suggests that the adams case involves internal union matters and did not take place and it had to do with the grievance of a mint and it did not take place within the context of collective bargaining i think the courts have made it very clear that where claims are completely bound up in collective bargaining irrespective of the the unique circumstances in this case where it didn't arise until twenty years later as a policy matter where it's bound up in collective bargaining you need to have a quick resolution right allow a collateral attack you know a year or two later is a recipe for industrial disaster  speed and finality are most critical when the disputed issue is intertwined with the day to day relationship between management and labor but since plaintiffs claims involve pension contributions not the day to day working environment the sarod circuit found a policy considerations designed to minimize delay did not apply that sounds like this case your honor i would respectfully suggest that the reason the court found that in adams was because it did not take place within the confines of collective bargaining agreement it was a grievance settled that affected the funding of the plan here you cannot no trial court could union would either can get a contract to compel rope to provide those benefits or if world didn't provide them then the allegation is at least that the that the union would provide it so you first have to determine whether  three paragraphs from the bottom our union and the members of our local who will vote to accept us into their plan are willing to accept the liability to protect and make a long term commitment to represent us so and  time to draw the line meaning move forward i think this should be remanded there should be discovery both into the agreement into the record and into what was going on with the union in if there's such a dispute and we're not asking you to take the record and give us limitations to apply in the context of different disputes this is not a dispute affecting the ongoing day to day relationship between an employer and a union and the collective bargaining relationship and therefore should not have been  six minutes to argue that would affect the pension plan which it was but any arista claim would affect the pension plan so therefore it should be a risk that would be the most appropriate statute limitations and we didn't sit on this we actually bankruptcy in december two thousand and twelve it didn't go out of business and it was shortly thereafter that the various the plaintiffs got a letter from the fine cancelling their benefits in february two thousand and thirteen i wrote the first of a series of letters to the fund asking if we could just look at the books this is a this was very disturbing to our our clients we had letters back and forth that lasted till march two thousand and fourteen when we finally got a so we treated it like exhausting your remedies under our ressa which is to appeal to the fund board to the administrators of the fund the record shows it took till march two thousand and fourteen there was some delay because hurricane sandy closed my exhaust finished exhausting the remedies and and less and less than three years after the two years after the two years after they were told that their benefit was being reduced thank you thank you very much