are there questions you wish me to address before i make my comments what you can start and then we'll jump right to what you know obviously what's important but in terms of the asli some of the questions that you know i can direct you in terms of some of the questions that i have is obviously your client didn't request the arbitration within the sixty days you know what what evidence is there in the record that your client signed a c b s i don't think there is there is one well the two thousand and five is something right the two thousand and five is california law which governs the whether this is a valid contract or not and under the published joseph rated and sons case that contract was void because there was never an election of the employees and i think in our briefs we made it pretty clear that there's a real distinction between this area where the congress did not cover a girl from always under the national labor relations act in the california statutory scheme and you can only recognize a union under the california scheme if it has been certified through a secret ballot election you don't have all these other voluntary recall it seems to me the best argument that you have is one that you didn't necessarily make all right and what i am looking at is in order to be subject to the arbitration clause it would seem that you have to be an employer that s and you the dairy admits that it's an employer under twenty eight u s c one zero zero two five doesn't that constitute an admission that required that is is that an employer that signed in a collective this doesn't say that that would be an employer that would have signed a collective bargaining unit it's but there's a distinction between signing a collective barring remit versus s admitted it signed a collective bargain recently just have not admitted he was an employer well again i think i mean i know he has people working for him and all of that but if you admit that you're an employer and as a term of art isn't doesn't that include all of those no i don't think it's admission as to that specific allegation now if there had been a specific allegation that they had signed a valid collect agreement that wasn't void then i would agree with you because i want to see whether i have to do but the failure to arbitrate like the failure to exhaust administrative remedies ordinarily bars an employer from testing withdraw liability there are exceptions to the failure to arbitrate one of those exceptions is that you're not an employer we don't talk about an employer who signed this or who didn't sign that it's an employer under u s c not twenty nine u s c one thousand to five and then you say i mean my worry is that you admit in the statement of genuine disputes of material fact that you are an employee or an employer within the meaning of one o two brand five so that takes away one of the exceptions that you'd have to get out of arbitrating i tried to find you under the other exceptions and i couldn't get there five because you didn't just your statement is that you're an employer within the meaning off that section that's correct we're not an employer that signed an underlying agreement that is not void well i guess i don't find anything in the exceptions to the failure to arbitrate which go to the length you're saying that signed a particular agreement it's just employer with them the meaning of that if you are argue that you don't have to arbitrate you don't have to exhaust your remedy which we're always talking remedies and that's why i want to concentrate you on there because frankly it seems to me nobody can tell me that you were supposed to pay what you paid over the long period of time it's not in this record i'd be happy to try to see somebody try to find that out someplace but i can't find you an exception we are all  about when that admission even though we're trying to get in the head that you were talking about that you signed the two thousand and five correct ok so what evidence in the record is there i've asked c p a prior to two thousand and five it's very sparse because we have this allegation lester smith who may have owned multiple dairies i don't know sold them a dairy and that although we have a c b i signed by lester smith no as the union produced anything no and then we have that this partnership with r c dairy which was that of robert  case than reich appointing this produces bargain a committee and we don't mean a record as to what they are and and i you know what their powers were or anything else what we do have then is that partnership that signed that agreement with the producers bargaining committee ceased to exist a couple of months later when robert vendor i bought out his father and under california law the partnership w cease to exist at that point in time because you only have one person and that was robert vendor right there and when you bought that when you bought the dairy did you buy at you didn't buy any you didn't take on any of his stats that's correct it was an asset purchase but then you didn't just pay these people that you paid the union bills that you got is it is there instead of violations of anything to have union and nonunion people working in a dairy if you have the proper  it covers all the agricultural voice so which shows me that they're the union didn't think they had a valid collective bargaining because they were only collecting for the people who are union members and they were here you have a bargaining unit which statutor defined in a california law as all the employees but they're only collecting the pension for the union members and not the non union members so if the union felt that a valid collective bargaining meant by california statute it would cover all the employees and i think that shows a real dispute of the facts here and you have from one thousand eighty four to two thousand and five no agreement being signed at all by robert  that if saudi was an employer at that time if he signed it when his operation was in southern california shortly before he moved up to the central  valley two hundred miles away and as we've cited the sun world case the union have been inactive for at least from eighty four to two thousand and five at this very nothing had been signed they were only collecting from a small number of the if you cannot escape your statutory duty to arbitrate by what you're suggesting by the t v a agreement is there any other equitable tolling i c to eliminate that because i find no case to suggest that just because you think the arbitration clause is unconscionable that it gets you out i can find any argument you've made that gets you out so if i can't live with the t v a are you stuck i think the issue of unconscionable ity is for the court to decide not the arbitrator and not just a minute you got to get out of a reason to not  arbitrate and the reason is that the statute says it has to be fair and equitable the pension benefit guaranty corporation set forth the arbitration rules with an agreement that was never presented to my client they have tried to alter those rules so that now that if you go to arbitration and lose you have to pay attorney's fees which is contrary to the statute is there to the any case which says that simply because you think the arbitration agreement is unconscionable it gives you a reason equitably not to do it i believe so because i want case well i tried  good morning your honor stonor courage on behalf of the dairy employees union local seventeen christian labor association of the united states of america pension trust and its board of trustees on that point i would just know that i do not represent the union i only represent the pension trust they are two separate legal entities let me just jump right in with you ok i mean i i think we all on this panel understand the importance of maintaining retirement systems and what why there are risks why there are withdrawals because otherwise if people don't pay they were thralls then the plan implodes on itself and people are hurt and so that's really important i'm tr in this situation that it's that there isn't a c p a that we have in the record up until two thousand and five they're arguing about that but that's something that signed so and they pay it and all during that period of time if it's wrong to have you know the union never comes around they just sort of take the money as a windfall i don't know whether they think that they have any right you know if they were concerned they should apply my understanding as to they shouldn't have nonunion and union people in there there's nothing that's going on to that effect and then they do go you know when they see this they say well we want to do something about it and then but they don't initiate the arbitration within the sixty days i think that there's a triable issue as to whether they're he's an employer from  eighty four to two thousand and five but i don't find in the record that that's what he raised when he admitted that but factually there certainly seems to be that issue until the reply brief they did not raise the issue of the claim that they were not an employer at all i do want to be very candid with the court there are two parts of a risk that have the words employ the word employer the in p p a does not have a definition for the word employer the first part of a risk that does some courts have borrowed that some court courts have borrowed that with a twist  but the m p p a itself has no definition and is a general matter of statutory construction an undefined term is given it's normal construction there's no dispute robert and various an employer because it employs employees right and that's pretty yeah and i can see why some would think but what if he had met so the admission does seem to be for the definition in part one so and what and what does that mean does that mean an as an employer with regard to the employees to cover people other than commonly the common law definition of employer to bring in a broader category there is case law that says that that definition was intended to broaden not narrow the definition they've cited no case where a court has narrowed the definition to mean an employer only this subset of employers who have an obligation to contribute to the obligation to contribute language in the definition in part one is to bring in people who have an obligation to contribute who do not meet the common law definition of employer well yeah he does he have if he didn't sign if he if there is no c v a let's just does he have an obligation to pay all of the withdrawal let's assume let's assume the two thousand and five he signed to c b s is there a difference yes because the obligation to arbitrate is what he would have  an employer who disputes assessment of the withdrawal liability the tribunals from take resolving that dispute is arbitration section fourteen twenty nine u s c fourteen zero one b one state if well before the court is part of an employer against whom a pension plan assesses withdraw liability does not timely initiate arbitration then the section fourteen zero one b one states the amounts demanded by the plan sponsor under the section thirteen ninety nine b one of this title shall be doing oing at so at the point that the time to initiate arbitration expires by operation of statute the liability is imposed right contract offenses at the agreement in two thousand and five but we were to read the rest of what he asserts as saying but i wasn't an employer before two thousand and five then the provision you're referring to doesn't click in before two thousand and five with all due regard there's nothing in this statute that puts any sort of time limits of for this period of time your employer and for this you're not if you are an employer at any point in time and actually there are there is case law out there the cases that say you get out of arbitration if you want to dispute you are an employer have been narrowed to apply only to the dispute as to whether you were ever an employer and if the dispute is over when you were an employer have you ceased being an employer and i would submit it when did you begin to be an employer that goes to arbitration and if you don't arbitrate you have waived that argument and in this case there's no dispute that at least at some point in time in two thousand and five bander ike barry was an employer it seems to me though if he had asserted but when you look to the language what the exceptions are that if you say you're not an employer it seems to me if he had a sort of that flat out in the beginning saying i i'm not an employer that the district court that could have you know might not you know then determined you would argue you'd say if you're if you're ever an employer you're always an employer and all of that he would argue i wasn't until two thousand and five  never was because of all these other things the district court would then make a determination and if the district court determined that he was always an employer might not toll the statutory or might say ok to make this determination i'm tolling the period now the sixty days start but he didn't make he didn't he didn't claim the reason i'm asking for tolling is i'm not an employer yet there's two different things he claimed only because they had  which they never mentioned to the pension fund before the time to arbitrate expired if they had mentioned that they wanted to try other procedures we could have done that that's what happened in the era gary case that's cited in their brief and also in ours when they cited era gary for the some of these issues they raised summary judgment still pending in that case the judge in that case has since ruled in favor of the pension fund and i do have a cite that case if you would like it let me have one little it seems to me that if he said i'm not an employer at that point there would be a genuine issue of fact about whether there's an employer and the time deadline for determining to arbitrate would have been told wouldn't you agree i believe that he would have had to ask for tolling either from a court or an agreement by the pension fund or maybe initiate the arbitration asked for it to be stayed none of which was done and this is a very important point well so i think it's important because i think that there's a lot of other terrorists out there that have the same thing going others have but that there's another point i'd like to raise if before the time to arbitrate had expired they had inquired about using different procedures we could have that the pension fund board of trustees would have made a decision whether or not it's in the best interests of the beneficiaries and participants to do so if you've got an employer they're threatening to litigate that might be a prudent thing is to say ok we're going to agree to toll the time to initiate arbitration while we sort this out and in fact that happened in the year gary case but once the time to arbitrate has expired and the statute mandates that the amount demanded has become due and owing at that point the board of trustees as a real risk a fiduciary is have an obligation to collect that amount that is now d but if in fact the idea of whether they were an employer or not is genuinely disputed then at that point you would go to the district court and determine whether an employer and if they were determined not an employer they would have had to arbitrate correct but you go to the district court which is what they did in europe gary with a declaratory relief cause of action saying we're not employers and arbitration has been on hold we're now just getting to it because the district  said your employers betrayed but they weren't tast that they blew the time they hadn't blown the time yeah it has they went first and great if they get within the time period they asked a district court to determine whether they were an employer well first mr sack us or a firm contacted us and said you know will you agree to stay the amount of time to arbitrate and he said yes we can do that because we don't want to spend legal fees if this is an issue that needs to be one or two months and then we said ok that's all we're going to stay it so they initiated the arbitration and went to court and we agreed to stay the arbitration while the court proceeding in the former era gary but i'm talking  are so i think i know what they are here but i just when you were saying the other one i thought that doesn't sound right like we offered we offered to stay the litigation we would have you know we didn't know they were objecting to any of the provisions they had not properly initiated arbitration so my colleague wrote to them and said under the plan documents here's what's required and if you'll ask you know if your client will start making their in from payments then we'll stay this so if i understand employer and you would that would have been the right thing to do and if they had said they weren't an employer then he wouldn't have been subject to arbitration if they if the court says you are an employer the times told and then you go to arbitra know they had any objection to the arbitration procedures what we got in response was an october third two thousand and twelve letter that said the dairy was elected not to arbitrate it didn't tell the pension fund anything about any sherry obligation of the trustees is to go collect the amount that by statute has become due and owing and there's no case that they cite that any of their defenses apply to that statutory provision just let me just ask this question it's not as if this didn't happen so i'm not but if let's say they had done up with that right and the court said you were an employer till two thousand and five when their withdraw liability be different that that would be a subject perhaps for arbitration again the statute but just just even though we don't you don't have to say what the amount would be but if you weren't an employer for that period of time it sort of follows that it would be your withdraw liability would be less i r s that wrong i disagree your honor well i'm just asking you in your expertise yes i disagree because there are very i mean do you disagree with three cents ok that's i don't just disagree th sense i'm asking for your expertise this statute the n p p has very specific calculations for how you calculate withdraw liability and it's based on contribution history there's nothing in those calculations about whether the a was valid or not during that period as this circuit has recognized in your honor judge callahan was on the panel for the moxley case withdraw liability is a separate obligation in contributions with separate policy considerations is designed to meet the needs of the pension fund going forward so that it can pay the benefits that have been promised to these employees right on the contributions through all those years regardless of whether the c b i was valid or not i have one moment and i would like to just encourage you to carefully read the mackillop case based on the barry cases that are discussed at page forty forty two of our brief that the c v a if it's void even if it's absolutely void the pension of obligations still must be enforced so all that discussion about it being a void c v a just doesn't apply to the withdrawal liability obligation ok but i want to point out procedurally here that what happened here was the pension fund filed the lawsuit in may well before the time period to even ask for the accounting or to contest it arose and i mean the real reason you didn't initiate arbitration mice you you know you had a you had a problem with how costly it was and then and that and that was and i think this judge smith has pointed out that there's quite a significant amount of case law that says the i'm conscious of bellamy is something that can be arbitrated it doesn't say it has to be arbitrated and basically the case law is that unconscionable ety is for the courts to decide not the arbitrator here and i think there's another point here is you have to understand the employer received simultaneously the fact that they'd already been sued by the pension fund and then they had this onerous arbitration cost to go forward so the employer countersued and also raised all these affirmative defenses in the litigation brought by the fund before the time to arbitrate had expired and had it not been for the unconscionable provisions then perhaps well but if you look at the fair to arbitrate judge smith went through the three reasons that we can find an exception in tolling he didn't present that to just a court that you were not an employer we we did we presented it in our firm a defenses we presented it in the disputed facts we have all the very undisputed facts in the undisputed facts and we disputed facts four six seven eight nine twelve fifteen and sixteen we set forth evidence for objections and thirteen and fourteen and the other ones that were ruled remedies in the appropriate agency before you can come to court then the courts always say if you don't exhaust get out of here in this particular matter the cork's say you have to arbitrate you can't get out of it unless you meet one of the three otherwise you can go to court tell me which one of the three you're going to meet your honor i don't think there's a case out there and i'm submitting there's a number four that the courts have to address and nat's when the arbitration that's being offered violates the very statute that mandates that you arbitrate imposes unconscionable terms that have not been agreed to by the parties and that's contrary to regulations and statute i think that is an exception  robert vendor right where the dairy is an employer in an industry affecting commerce within the meaning of section and it cites the various cases and i think it's clear that by doing that you're not admitting that you signed a collective bargain agreement the statute doesn't have that and it's ambiguous and to make that factual determination that we've waived all those arguments based on that as phrased and as even state when we were the employer we just admitted that we were without power and i think we