and also the appellant employee roland beltrami and we asked the court to reverse the summary judgment that was entered by the district court below this case involves a challenge to an arbitration award that was issued under the exclusive and mandatory mechanism that congress has set forth in the railway the labor act in order to decide contractual grievances and congresses choice of this exclusive mechanism really serves to explicitly stated public policy goals the first is the orderly i e peaceful resolution of these types of  disputes just as a little background prior to congress adding the mandatory arbitration mechanism to the statute sometimes these workplace grievances would fester and accumulate and would actually lead to labor strikes and disruption so congress decided to amend the statute to make arbitration the mandatory and exclusive means to resolve these disputes and the second explicitly again stated public policy goal in the act is the expeditious resolution of these matters again that they not fester and that they do not grow and that these matters get resolved as quickly as possible and both of these both order and expedition were viewed as essential for sound and stable labor management relations under the best statute so in order to effectuate the stated policy goals the railway labor act makes arbitration boards final and standard that's been called quote among the narrowest known to the law so there are three grounds sept fourth in the statute the first is a failure to comply with the requirements of the role in labor act itself the second would be fraud or corruption on the part of an arbitration board and the third is acts in excess of the arbitration board's jurisdiction the district court here in appropriately expanded this scope of review under the statute and for this reason its decision should be set aside by this court now the facts of this case are are fairly straightforward so i don't intend to spend a lot of time discussing them at length but i would like so in two thousand and eleven mr bell tran tested positive in a workplace drug test for cocaine and as a result of this he entered into what's known as a companion or waiver agreement with union pacific his employer and what this does is it enables the employee to avoid discipline they waive what they would otherwise have is their resort under the collective bargaining agreement to challenge the discipline and instead they greta go into the employer assistance program and follow whatever requirements that program asks of them in order to return the service so this is what and fourteen he had fifty seven tess in all of this follow up regime all of which were negative including a test on november the thirteenth of two thousand and fourteen  then on november the twentieth of two thousand and fourteen he was administered the test which the company alternately found to be positive for and fed him and methamphetamine based on investigation and hearing as it's required to do under the collective bargaining agreement process and shortly thereafter based on the investigation hearing union pacific terminated mr beltran's  employment then the union progressed the discipline ultimately to arbitration for a public law board in december r i should say on december twenty second of tw sixteen so this is almost two years ago now the public law board issued an award which conditionally reinstated mr bell tran but union pacific declined to allow  tranter and turned the e a p process to return to service as the award had directed and instead in march of twenty seventeen filed an action in federal court to set aside the award and then  the beginning of this year in january of twenty eight hundred the district court entered summary judgment on behalf of union pacific and magicked in summary judgment for the union and mr belcher and and this appeal followed so here we are we're we're four years out from mr bell trans determination and you know for a statutory mechanism that's designed to reach final and binding and expeditious and to these matters in the workplace and that is quite a long time although unfortunately i have seen even longer but that is not in our view for filling the aims of the statute to expeditiously resolve these matters now turning to our legal argument there's essentially three main topics so i'd like to just outline those and then go through each in turn so our first point in our legal argument is how the district court should have applied the railway labor act standard for review and if applied appropriately the arbitration award should have been upheld second i want to address the  pacific scl ame that the arbitrator exceeded her jurisdiction under the railway labor act and lastly i'd like to address again union pacific school aim that the arbitrator's award contravenes public policy so turning first and perhaps most briefly again to the aurally standard and review under the standard the district court should have upheld the award the early again gives only three narrow grounds the failure to comply with the act itself which is not at issue in this case fraud or corruption which is also not it issue in this case and then lastly acts in excess of jurisdiction which is the second point that i will get into more of more detail but in this case the overture to persuasively what arbitrator's are supposed to do under the railway labor act she interpreted the contracts specifically she focused on the collective bargaining agreement what's known as rule g e and also the waiver agreement letter that mr belcher and entered in two thousand and eleven so she applied the facts as she found them through the investigation that was conducted on the property and then presented in the submissions to the arbitration panel and based upon those facts as she found them she selected a remedy that was deemed appropriate under the facts and applying the contract terms so this is what arbitrator's do and this is what the parties had asked her to do union pacific inc these are precisely the questions and matters that she was asked to entertain so in doing so she acted squarely within her jurisdiction which is of course to interpret and apply the collective bargaining terms now turning to union are on the jurisdictional issue and it is that the department of transportation has limited the jurisdiction of arbitrators under the railway labor act through its regulations on drug drug testing protocols so as a threshold matter this argument has been waived it was never raised during either the on the property grievance handling that was conducted by the company and it certainly was never raised during the arbitration portion of the statutory process and it's not even just that it wasn't raised to the contrary union pacific specifically argued to the arbitrator the matters that it now says she should not have had the authority to entertain under the department of transportation's drug testing regulations they specifically argue the bon of of the of the drug test that was administered and ultimately verified by the medical review officer and they put evidence disaffect really aimed at this into the record and argued this precise issue to the arbitrator so it's not a waiver just through mere silence here they actually put these issues to the arbitrator that they now say have said to the district court and now again before this court we're beyond the authority of this arbitrator to entertain now as far as the authority of the arbitrator being limited by the d o t regulations of course at the heart of this argument is the regulation that's found at forty nine c f r section forty point one for non now it's important to note i think at the outset that the collective bargaining agreement in this case does not incorporate the d o t drug testing regulations ok so this is an important distinction between this case and an earlier case before this court the continental versus airline pilots association case which is cited at length in both our record our brief and pelleas so in that case there was an argument made about jurisdiction based on duty regulations but there the collective bargaining agreement specifically incorporated those regulations where are those are to ours does not so here in the jurisdictional argument rests on the premise that the department of transportation in its drug testing rule making has decided that it can and should limit the jurisdiction of arbitrators operating under a separate statutory regime here in this case the and i think that that would actually be a pretty extraordinary thing for the department of transportation to have done through its rulemaking but but d o t did not do that instead the agency has made it clear that it does not decide the personnel consequences that might follow from a failed drug test instead the deity's testing requirements and protocols speak  to what an employee must do to resume work in a safety sensitive position so whether or not they are disciplined by the employer in some fashion or terminated by the employer that's not something that d o t has spoken to and the language of the reg limits itself and says that the m r o has sole authority under this part meaning the d o t regulations and the guidance makes clear the d o t was not intending to decide it matters that relate to personnel decisions and the authoritative guidance that we cite in its pages thirty four and thirty five of our br very key here and it says that you can have a situation where an arbitrator makes a personnel decision that seems at variance with the m r o's validation of the drug test but that the employer may nonetheless be required to abide by that arbitrator's decision so the two need not be read in conflict it does not need to be read that the d o t you agree what if an arbitrator had ordered the railroad to return him to a sensitive position then the veil really needs to follow the d o t is regulations that is a requirement for him to return to a sensitive position that wasn't what the arbitrator ordered here yes yes that that i would agree with obviously an employer and then might be faced in deity says this and its guidance with having to basically make this agreement whole either put them in a position that's not safety sensitive or just pay them and we understand and your t said this may be a hardship for the employer but if it's the only way to preserve the equal dignity of the two schemes now had to talk about the public policy aspect again this really rushed on the same in our view misreading of the d o t regulations the supreme court has been clear there must be an explicit and well defined him please the court cliff got her for happily union pacific this case presents a highly unusual situation where an arbitrator did something that federal drug testing regulations directly say arbitrators are not allowed to do and why did your client tell arbitron my client but your honor we did not cite the regulation to the arbitrator the people who are betrayed in this case for the railroad were unaware of the regulation and so here we are and let me talk about waiver then let me before i get in let me talk about the waiver argument because it was raised and it's a it's a legitimate argument the railroad did argue in its submission to the arbitrator that begins at page seven ninety nine of the record that the m r o had studied the medications that mr beltran was taking made a medical judgment that the arbitrator shouldn't disturb but did not cite the regulation did not say you cannot as an arbitrator do this and arguments that arbitrator's exceed their jurisdiction can be waived but that is not true about arguments that the award violates public policy in this court help that in the gulf coast industries case we've cited in our brief in that the district court relied on the union's brief in fact if you read it it doesn't argue to the contrary their wafer section is in the jurisdictional part not in the public policy part of public says is he is reinstated with his seniority intact ok we that means he has the right to go back wherever his seniority allows him to go and if he his seniority before allowed him to hold this job that was safety sensitive it would allow it again now councils right that he has to go through the reinstatement protocol regardless of what the arbitrator may rule i think that this court has clearly held him and we're right about that but she did  the so i'm not going to concede here today that we waive the argument i think if you read our brief to deliver to the arbitrator written by a non attorney what you're going to see is that the it is the argument that the m r o studied this and the arbitrator shouldn't set it aside but we didn't cite the regulation directly i do think the public policy issue of voids the waiver problem and you don't even have to look at the waiver issue if you go on the public policy side yes the regulation here that we're talking about is forty nine c f r section one forty nine seat and what it says is in m r o has the sole authority to make a medical judgment about whether employee has presented a legitimate medical explanation for a positive test that was mr bell transplant that he was that that there was a legitimate medical explanation here and the regulation says and the language is is really important in arbitrator is not permitted to overturn the medical judgment of the m r o that the employee failed to present a legitimate medical explanation stating that he is taking advantage of a one time return to service opportunity subject to the union pacific drug and alcohol policy including article twenty one of that policy in article twenty one told him  another violation of that policy within ten years would mean permanent dismissal it was unambiguous in that in the drug and alcohol policy the second drug test less than four years later and he had signed a clear last chance of me so the district court relied on this court's decision in continental airlines versus airline pilots association which has addressed the public policy issue and that's what i really want to spend my time on today i have two topics i'd like to cover with the court first why the district court's ruling that the award violates public policy is correct and second why given that the arbitrator cannot overturn the m r o as medical judgment the district court properly vacated the award based on the an ambiguous language of the last chance agreement and the drug and alcohol policy that it incorporates so begin with the public policy issue the supreme court has said courts cannot  force arbitration awards that violate public policy and in the alpa case this court held that that review applies to railway labor act arbitration awards and explain how the analysis works for awards that violate drug testing regulations in that case the arbitrator ordered if you please who employee who refused to take an alcohol test reinstated and placed in the airlines employees assistance program the e a p for two years but a federal drug testing regulation gave sole authority to another medical expertise substance abuse profession to decide whether and for how long an employee should be in the e a p because the arbitrator did something that federal drug testing regulations said the arbitrator couldn't do but there's an online discussion of all of this and it seems that if it says to me at least it seems to say that if the arbitrator orders them back to a sensitive position the arbitrator can do that but the arbiter can say well in spite of that you have to follow the personal policy outcome so listen can you dress why yes absolutely and let me let me just say let me answer the question i'm trying to put in order the arguments that i'm going to make so let me but let me just go straight to that language so let's look at this is the second question and answer those two questions and answers we included both of them in our denim to to our brief so this is the second one and what the second one asks is what's an employer to do if an arbitrator's decision claims to overturn the results of a d o t drug testing on grounds contrary to the regulation in the sentence they cite says this the employer may still be bound to implement as your honor points out the person how policy how can they say that over rules the regulation and it overrules a couple of other statements from the d o t all get to but they say that over rules them but it's not but the what that sentence says when you read it carefully it says the employer may still be bound so let's start with that may if the defendants were right and that sentence overruled the basic statement in the regulation that i read earlier arbitrators cannot overturn these m r o determinations of whether there's a legitimate medical explanation if there if they're right it would say the employer is still banned they used may say so the use may for a reason it's a conditional statement right you may or you may not depends so when would an employer be required to follow the outcome of the or again go back to the language baby bound to implement the personnel policy outcome they didn't say the medical judgment of the arbitrator the thing that the regulation commits to the sole discretion of the m r o they set the personnel policy outcomes so think about this absen last chance agreement here that on ambiguously said that a second violation of the policy would mean mr bell training would be permanently dismissed absent that if an arbitrator says i think this was a false positive but in any event the maximum penalty here would be a sixty day suspension the railroad is stuck with that personal policy outcome because it converts the terminations to a sixty day suspension can't do anything about that because that's the personnel policy outcome and that's the arbitrators area of expertise after all right the m r o licensed independent doctors sometimes they're called union pacific some are oh not a union pacific employee has to be independent trained in the science of drug testing understands legitimate medical explanations that's the m r rose area of expertise personnel policies are arbitrators areas of expertise and so i think it was a false positive but in any event sixty day suspension is the maximum penalty here railroad has to comply another example and this actually has happened in one of the cases that we looked at them i believe the didn't conduct a proper hearing maybe they missed a time limit in the grievance handling process that's mandatory didn't deny the grievance in a timely manner the fact that the arbitrator also said in the opinion well i think this was a false positive anyway wouldn't stand in the way of the employee be reinstated that's what they're talking about the arbitrator's personnel policy decisions not the medical judgments and that's the district court held it's wrong to read that that sentence in this interpretation to overrule the regulation but as i said before i kind of hinted at this it's not just the regulation of the regulation is really clear and as i read to you right up front i want to get this in because if it directly addresses in arbitrator cannot do what this arbitrator did is what it says that's not the only place they said that the department of transportation when they issued their the regulation stated in the federal register why they were doing this they said they believe strongly that the medical judgments of the m r o on these questions should not be overturned by arbitrators and i want to point that out they specifically talked about arbit the argument that oh why would they be messing around with the railway labor act with are talking about arbitrators right here so you know they meant to address arbitrator's and they said consequently we've clarified the regulation emphasize that m r rhodes have sole authority to make medical judgments about drug test results and that arbitrator's again pointing to them specifically and other participants in the system do not have authority to overturn those judgments they go on in the next paragraph and what they say is this is medical judgments we're talking about are rules about medical judgments non medical judgments are different they give a different example they say in a drug test can be overturned by an arbitrator if the arbitrator finds that there was a break in the chain of custody of the sample but listen to these words they used that address exactly what we're talking about but an arbitrator could not decide in the face of an m r o is judgment that there was not a legitimate medical explanation that the employee have presented a legitimate medical explanation so they come out again and say  arbitrator cannot do with this arbitrator said they say the rule is intended to prevent such a substitution of judgment about a matter committed to the expertise of the m r o so that's twice they've said short of terminations ok so let's talk about that in endless supply of to that in a let me let me answer the question this way in the normal case the answer to your question would be the arbitrator can ok in a normal situation where and we have this a good example is the eastern associated coal supreme court decision that both parties have cited to in their brief there was no sanction laid out in the agreement about what happened if the employee violated or failed a second drug test and so the supreme court said it's up to the arbitrator and in if those were the facts here i wouldn't be standing up here in front of you today but it's not thing to say public policy is clear that an arbitrator cannot return someone who has failed a drug test to a sensitive this i think that's a public policy issue clearly cannot do that you never argue t see agreement the only remedy is arbitrator could ever order would be terminations then i think we did argue that i think in our submission to the arbitrator we did say that public policy ground a traitor cannot know ever that oh no it's not and it's not our way it is not our argument that mr beltran can never be returned to service on public policy grounds that i understand what you're saying about safety sensitive position the regulation requires that he goes to a protocol before he goes back but the regulations don't say he has to be terminated and so we're not that's not our argument so our argument is what public policy prohibits what i read you've been up twice the deal t says an arbitrator cannot do is overturn the medical judgment of the m r o that there isn't that there isn't a legitimate medical explanation for the positive test so if that part of the award goes away because it's against public policy it violates a specific regulation then the question is what happens to the part of the of the arbitration award that said mr bell tran has to be reinstated and on that point you look at what the last chance agreement says and you ask yourself under this court's cases in cooper natural resources in continental airlines versus teamsters what opportunity as provided in the u p a r r drug and alcohol policy the idea that this what that this agreement didn't incorporate the drug and alcohol policy it says it right there that it does and that any future return to service will be under those terms and conditions it says so what is the drug and alcohol policy said the drug and alcohol policy article twenty one says in employee granted this one time return to service opportunity who violates the policy again within ten years we've held bets in excess of jurors diction that part of the award is in excess of jurisdiction that can be white and we didn't wave that part of the argument being clear i get to clear it up so what we didn't argue to the arbitrator is that she could not overturn the m r o those no legitimate medical explanation from what we did argue to the arbitrator is that the last chance agreement required beltran's dismissal we said if you you have no jurisdiction to do that now but i don't think we have to do that i've never seen a case that says that we have to tell the arbitrator that she's without jurisdiction you know what we have to do is lay out the argument and let me say one other thing very important i think on this point you're on the union never argue to the district court didn't argue in their opening brief to this court that the last chance agreement didn't require mr dismissal if he in fact had failed a second drug test in fact in their brief to this court at the top of page thirty two they're talking about what the last chance agreement means and they say if the company alleged that mr bell tra had failed a second drug test he would be terminated would go on and say that he has the right to go through the arbitration process but they've conceded that and they never argue to the contrary in the district court and the words of the last chance agreement are are so clear and we did not waive that point so i'm glad you let me clarify that you're on it because i think that's important with there was no waiver of that of that issue and many events they didn't argue that t in one declared or seen what you knowledge you did way i did not cite the regulation to the arbitrator and tell her that she had she could not overturn zz no legitimate medical explanation determination we argued that she shouldn't do that we made all of the arguments about what the testing was what the m r o had done what his jurist you know what is the qualifications were to make that and the scientific basis upon which he made that decision dealing with what polymer of or i'm sorry isomer of methamphetamine was found in his in his sample ok so the terminations my point is in a public policy grant the only thing that public policy reaches which you can't wave is that we don't want people who failed drug test to be insensitive because it's we don't care about  case from this court what you're going to see is the public policy is stated a little differently than what you said judge you know in the public policy that the d o t has emphasized there is the public policy in favor of having medical experts make judgments in federally required drug testing and not to have those judgments overturned by people who aren't medical experts that have gone through the training that's required to be an m r i or substance abuse professional as it was in the case of the alpa case the public policy violation here by the arbitrator is that she overturned that for any purpose not for the purpose of whether he gets reinstated or not she cannot overturn that that determination it's set that was a positive test and if that's a positive test then there's a whole it cut so deeply into public policy that as a matter of law essentially this must be vitiated right that's exactly right then that's what the deal t said twice and if you actually look at the first of the two questions and answers they said it a third right there are a few points to do we want to address here so it in terms of the d o t regulations and the reference to arbitrators in arbitration if you look on page nine of our brief and it's in a footnote there's kind of there's a couple of arbitrations that can go on here and the d o t regulations provide for a hearing process but if you're covered by a collective bargaining agreement that conduct tail with whatever the collective bargaining agreement process is ok so if you so you would get resort in some fashion to an arbitration process even if you didn't have one a collective bargaining agreement but if you do those two processes to some extent can run together shall we say i don't think though that there is an intention that there is a a global pronouncement that for all questions even not the essential question for d o t which is the circumstances under which someone can resume a safety sensitive position right that they are saying no one no arbitrator no judge for that matter can ever  second guess a reevaluate the m r i verification so i think that is just too broad a reading of what d o t was intending to do in its regulations that was one thing sure what if we c onclude that what the arbitrator that that does not allow the arbitrator to determine that there was no a general medical explanation for laborator banned by that is there any other basis on this record that the arbitrator could have could have thrown out yes the test yeah i'm not supported in the record a couple of things first of all if you read her decision it it's a little vague and courts have said that's ok you know arbitrators aren't held to the standard of you know a brand dies brief kind of treatment of these things but that she in her decision seemed quite convinced that the m r o had not knew what that that her her decision to be read to say that she didn't think the m r o considered certain things what is what what the os about things in the record the prescription if you read her decision which is  certainly do disagree with union pacific position that that was articulated here this morning we made that clear in our reply i want to know why she cannot go beyond the medical part of it if you want to get what is there that would support what you do beyond other than their well we certainly disagree that the waiver last chance agreement late book wired her to sustain a termination that there was nothing that she could do short of terminations and this is important that you look at the documents that union pacific is actually citing and so you can find the waiver letter at seven twenty three in the record and that you can find the it's pertinent provision of their policy at seven seventy five in the record so what you have to do according to union pacific apparently is read the waiver agreement letter in conjunction with their policy document but the waiver agreement letter is the contract write that the arbitrator was looking at an interpreter and it's not clear from the language in the face of that whether or not this someone had to be permanently dismissed if you found a second failed that al address test ok there is a reference to article twenty one in the posi but it's in the context of the return to service process it's not in the context of this you know automatic that's in the policy but you know an employer can have a policy but that's not something that the union and the employee have agreed to necessarily also if you look at the final paragraph in the waiver agreement letter it specifically says i understand that if i deny the village eddie of a non negative drug test that's conducted by union pacific that there is the arbitration a provision on this so you can challenge it and so you can challenge the termination if the employer terminates under this agreement so it's just i on the public policy we need to have a well defined and explicit public policy we don't think the d o t regulation provides that that there is sort of nonviable medical judgment here that would