good morning iranians my name is jed mendelssohn i'm accompanied today by my colleague to my left tyler simms and to upper level members of labor relations management at appellant rite aid the issue presented your honour's is whether the arbitrator issued an that failed to draw its essence from the labor contract and in doing so substitute his own brand of industrial justice in place of the labor contract language upon which the parties agreed with the decision had a very term contribution rate compared to the term you are and i take it that what you're asking us to do in the context of reviewing the confirmation of a arbitral word is to conclude that  the arbitrator here failed to really move you the agreement your honor you are correct that the arbitrator in his award acknowledged each of those sections and we submit to you that he did not draw the essence of his award from the agreement from the obvious if i could direct your honour's to pages two of six and zero seven of the joint appendix there we have the provisions of the agreement and if you look at the second line in paragraph close parenthesis and then we'll talk about it in a moment your honor is in subsection is toward the very bottom there's a sentence that reads quote if the employer challenges such diversions it shall continue to pay the you or as set by the trustees until such time as the merits of that challenge are determined and why are you going traitor mention each one of those provisions yes your honor and we recognize that the standard here is one of great deference to arbitrate as we submit to you it is a narrow class of case and i'm going to explain why very briefly in a moment but i first want to say to you that no person rationally could look at the language that i just pointed to you and not conclude that the term contribution rate by definition in this agreement is you or the two terms are equated and there's a reason for that because for decades the contribution rate was the you are and further i know to you the record supports the point that this language was drafted by the union and so we submit to you that when an agreement over and over interchangeably consistently repeatedly uses the word contribution rate and you are or both together and in lieu of one another and if you read through paragraph c in particular but d n a is well you will see that those terms are used interchangeably no conclusion was possible other than those two terms are the same term so the first core point of our argument is that the the arbitrator disregarded the plain language of the agreement and the supreme court in this court have issued decisions recognizing that great deference must be paid to arbitrat nonetheless the case that when an op or trader deviates from the plain language of the agreement the courts have to step in because in those instances the arbitrator is rewriting the contract another way not color branded in the country because we all know is a canon of construction that the terms of that agreement must be read in their entirety and the red consistently the term any the author trained in his award said that only the broad but it's all encompassing he was completely mistaken and exceeded his power in saying that the term any is de limited by the terms that it is modifying and here it is modifying contribution and you or or better said there modifying it he could not read the term reflexive me as so many people do any to mean that he can that he can do in the trustees can do anything they want it's the contrary the term was the contribution rate as the parties agreed and the union proposed and i submit to you if you look further in even this was my point look at the language about diversion the language of the contract says that the event is a diversion which means that monies that are contributed to the fund are used for some purpose other than the funding issue are several funds and that's an issue between the parties it says that during the pendency of that dispute the employer shall continue to pay the you all are by changing the contribution methodology the arbitrator undermined and essentially no if i'd that provision he could do that the party said agreed that the you or and contribution rate are one in the same and that's exactly what the employer was allowed to pay in the event of a diversion dispute and once he said that on the other twenty nine i mean just to go back to the to the question he seems to grapple with each one of the issues that you have pointed us to and you disagree in there might be a good basis for disagreement but that's not a basis to overturn an arbitrary it is your honor if he disregards the plain language there's case law in the circuit that says  dealing i'm using that as a fact to explain why the language is so crystal clear it says contribution rate you or parenthesis that's how lawyers and other people define terms the parties didn't have to use loads of language because there was such a history here i submit to your honor that the case law on the circuit says that because an arbitrator makes quote noises a contract interpretation doesn't make his decision unassailable the very point is he exceeded his power because he rewrote the contract and that's exactly what he is precluded from doing there are two other points your honor all just touched on them briefly and then i left two minutes rebuttal one is that if you thought any was ambiguous and we don't we think the language of the contract is clear but both parties put in bargaining history the borken history is clear cut the union at the table told the company and it's undisputed that if you want to be party to a contract with us you have to agree to you or and the record supports that no discussion of contribution rate no discussion of anything else and lastly the record supports that the arbitrator at the end of his opinion introduced external considerations he acknowledged there's no evidence of any fiscal solvency issue and then said i think i have to be deferential to the trustees while he wasn't reviewing the decision per se he was reviewing the contract to see whether their decision to change the contribution methodology was permitted and it's obvious that he allowed his concerns about defer except he really was saying was the paragraph is clear and unambiguous and it favors the other side which was the union which i understand what he said and i'm submitting to you that the word any on a reflex can't be read as as people are reading it here the  answer is any is d limited by the terms around it and that's the fundamental point here just because the word any appears doesn't mean that there's court blanche to do various things no matter what words the company uses and how it tries to style its arguments the position of the company at bottom here is that the arbitrator simply misinterpreted the contract each and every one of its arguments is an exercise in rhetorical gymnastics an effort to persuade this court that this appeal is about something other than the fact of right is dissatisfaction with the result of the arbitration proceeding the law as you know is straightforward and well settled as long as the arbitrator arguably construed and applied the collective bargaining agreement the court shouldn't overturn his decision the crux of right is argument as you heard counsel say is that the terms contribution rates and you are  mean the same thing and that by concluding otherwise the arbitrator somehow exceeded his authority or imposed his own brand of industrial justice but this is really just another way of saying that right he disagrees with the arbitrator interpretation of the contract language and examination of the award demonstrates the arbitrator more than satisfied his obligation to construe and apply the terms of the collective bargaining agreement it's clear from the award that he review the language of the contract both section which includes right aids obligation to adopt any changes a stablish by the trustees to the contribution rates as well as the other provisions of the agreement that refer to the  are but he considered the evidence of the parties bargaining history related to those contractual provisions evidence presented by both sides at the arbitration and that he fully considered right its argument that the contract language in the bargaining history required the conclusion that right aids obligation to adopt changes to the contribution rates was somehow limited to changes that maintains a single contribution rate applicable to all participating employers and he considered all of those things and ultimately concluded instead that the clear contract language required rite aid to adopt any changes to contribution rates he said any means any and that's not an a reasonable thing to s the paragraphs there set forth specific contribution rates which were at that time you are are in section the parties used a different term they didn't use you are they used contribution rates and they used any contribution rates to signal that the trustees can make determinations about contribution rates to be more than simply you are as they were you are ours at the time or different than carets and i think it's worth  noting what actually happens here which is that the trustees moved from a single you are a single contribution rate applicable to all participating employers to two different contribution rates one applicable to employers that are members of a multi employer bargaining association called the league of voluntary hospitals and another rate applicable to non league participating employers including right the arbitrator correctly determines in this case not to consider the equities and this court should not do anything different but to the extent that there are any concerns about equities here that's important because of the two rates the league rate and the non league rate the not only rate is in fact lower the rate that right it is required to pay that the arbitrator found right it is required to pay that the district court also found right it is hard to pay is lower and that's why we haven't heard anything throughout any of these proceedings not at the arbitration not in the district court not in the company's written submissions to this court and not in its argument here today about any unfairness right it is facing visa v the other contributing thank you your honor first of all the supreme court's decision in isco states that an award is reversible if it ignores plain language and so we want to emphasize that even section references the  and i understand that a court would be concerned about a slippery slope and issuing a decision that could have could open the floodgates but we submit to you that this is just the kind of case that doesn't do that there were a few contracts with the  the interchange ability of the terms contribution rate and you or as they exist here and so we submit to you that this is a very unusual case because most cases don't have language that is quite so homogeneous and interchangeable as those two terms appear repeatedly through section see through  to hear your response to the the answer is section in the wall not specific to one particular fund is more of an omnibus provision and therefore the parties having to find so clearly what contribution rate means in section c and d didn't need to do it is that by no fine the you are the arbitrator nullified that sentence which is very clearly speaks to the point that the employer in the event of a challenge on diversions undermine your argument that no disrespect your honor such an incorrect reading it's not it's not about a dispute about contribution rate it's about a dispute about diversion of contributions that is not a dispute about the change in the contribution rate it's about a very sort of narrow problem  the parties have discussed in the table that's revealed in the transcript of the arbitration hearing but has nothing to want to say one more thing that i diverted from before without mentioning in the arbitration hearing union counsel not miss bella than a colleague of hers question mr hinkle who's in the court room and asked him in section if he is there any connection between the word any and you or r and then she herself corrected her question and pointed out the diversion language and i submit to you that her question asking a witness whether there is anything in the agreement in those provisions that connects you or to the term any itself is dispositive in our favor her own question realized you can't read the word any in isolations in your favor yes or because she recognized you can't read it in isolation you have to read it in the context of