first case they will call is a curse national roll company versus you know i did steal paper in forestry rubber manufacturing energy allied industrial and service workers international union steelworkers of the court's permission united steelworkers thank you that will make it much easier for us thank you very much mr pattis you may begin thank you ma'am please the court my name is man a fetus and i represent a parent united steelworkers and its local eleven thirty eight dash for what the court's permission i'd like to reserve three minutes for a rebuttal granted this case is about whether an arbitrator acted within his authority when he and construed the underlying contract when after analyzing the contract language and finding it ambiguous and finding that it did not reserve the specific right to schedule to management he used extrinsic evidence to come to the decision this court should reverse the lower court's vacation of the arbitration award because would treat as award to its essence from the underlying contract and second the arbitrator acted within his authority when he made the award to briefly summarize the facts the grievances three grievances were filed in protest of the maintenance clerk not being allowed to work weekends overtime with the maintenance department the union allege that this violated a past practice and they in company denied the grievances all three grievances went to  arbitration where the parties agreed they all had to deal with the same issue the issue of past practice whether had that had been established and whether it had been violated the company argued throughout the grievance procedure and at the ar not exist and contract the arbitrator when it came to this decision found however that it past practice could it could exist that it had been established and that it had been violated he says where we're familiar with the procedural history why don't you tell and that is not what courts are supposed to do the district court found that there was an exclusive right to schedule in the management's rights clause which is section three and the scheduling cos if the section nine neither of those causes the civically say did not say anything specifically about section nine but he did have the entire contract in front of him and he did look at the evidence that was presented to him by the grievances and by the party when the court can come up with a rational explanation for the arbitrator's decision without looking at section nine that should be enforced here section nine if we look at it doesn't specifically speak to the right to schedule over time what section one talks about is in s nine the normal hours of work for the hour work week monday through friday that's not the situation we have here section nine b and both of these were depended upon heavily by the district court and not at all by the company during the grievance procedure so we have no evidence that the arbitrator was even presented with this except for one instance and the second step answer to the second and third grievances when the employer brought up section nine b section i v also has nothing to do with scheduling weekend overtime with  is that if you get called into work and there is no work you get four hours reporting pay section ninety also if the company can the company does not have to post a schedule different from the norm if it the company only has to post schedules that are different from the norm section one the three says employees should try their best to inform the employer when they're going to be absent or late and session before so is that if we can work a schedule schedule it should be settled once if i knew none of this has to do with what to do if the maintenance clerk is post if the maintenance if the weekend crew sorry if the main us department a schedule for weekend overtime and the maintenance crew the maintenance clerk comes in as has been done in the in the past and had been done over to at least two collective bargaining agreements and then and then a supervisor is performing bargaining you know work you're arguing that the arbitrator's award does draw its bargaining agreement when the interpretation can in any rational way be derived from the small per that's assault purpose that i asked the question because i wrote that decision forty four years heartedly agree part two in brentwood medical associates helped elucidate the standard even further saying that the amount of rationality required in an arbitrator's interpretation is minimal and this court arkell palmer s if the award can possibly derive from the interpretation and application of the contract courts are precluded from refusing to enforce is that true even if we're convinced that the arbitrator ignored a portion of the contract let's say we were satisfied there would be more of an argument that the arbitrator ignore the language but the arbitrator too can relax can that deviate from the plain meaning of a contract if the language is relaxed by prior practice that's from this court and and i'm corp so i think here it's clear that the arbitrator looked at section three and management rights it says nothing about the specific right to schedule it says direct the work force but the arbitrator reason a reasonable interpretation of the r arbitrators award is that direct the work force needs you get to say what duties the employees carry out that's clearly not what the district court but that's not the decision that the parties bargained for section two the alleged zipper clause is ambiguous requiring written a signature from only one party given these together that's not an ambiguity problem is it might be in force ability or problem but right now it's not ambiguous we know what it says it just says one signature is required yes and i think the arbitrator said it was somewhat ambiguous because it is somewhat ambiguous whether it means to be the zipper arbitrator found it didn't and not only that but it was not a specific affirmation of man and management management it was not a specific affirmation that management rights are not limited by prior practices and i think these things taken together along with the actual prior practice of the letting the maintenance clerk work and the fact that this contract lacks language that limits an arbitrator's authority which is present in other other contracts especially those cited by my opponent in his response brief the cut the parties got what they bargained for the arbitrator was not making a decision that was in manifest disregard of the contract it was not totally unsupported  on the concept that when the parties agree to an arbitration in an agreement they are asking i'm arbitrator to decide the law and the arbitration uniform commercial code of uniform uniform arbitration so i think what we are here we have to concentrate on labor arbitration i the issue submitted the district court found and my opponent argues that the ira traitor in deciding this past practice issue was acting beyond the bounds of the authority of the contract as i stated before it does not have a closet states the arbitrator cannot alter modify or amend the contract program or as judge all their search wrote in high concrete structures and i were traitors can the parties can empower an arbitrator to go beyond the four corners of the contract and what the court looks to determine this this authority is by is the submission the grievances submitted to the arbitrator for decision a court should defer to an arbitrator's interpretation of the scope of the issue submitted the same level of deference it gives his actual ward which is to say if the arbitrator is even arguably construing or applying the award or the issue submitted to him it should be enforced and not reversed by a court here the past practice issue as i stated had been alleged since the very beginning and three members of the company's management responded to the past practice issue all three were at the arbitration hearing and none of them there objected to the arbitrators authority because of this failure to jack they've also waived consider of consideration of that issue here to the arbitrator ever indicate how he was going to frame the issue before the written opinion i did i don't know your honor but he did the issue he came up with does reflect the grievances refer to the law of the shop law of the shop i used the expression you know you have you can revoke the awar now when we talk about the law of the shop isn't that doesn't that subsume past practices yes your honor and i'm a traitor did consult industrial common law by looking at previous arbitrators awards and how they defined past practice apply those principles found a past practice and found that a past practice had been violated in this case well even if the contract says that everything needs to be in writing but the contract this is i think this is where the ambiguity of the arbitrators that i would hear is belief in the ambiguity of that section to the per class comes in for an agreement to be in writing but only signed by one party didn't make sense to the arbitrator and that's the rationale construction of the contract and that's the level the standard of view this court should be applying to the arbitrators award all right let's let me give you a hypothetical that's a good answer on the facts of this the larger picture here if both sides signed a contract and the contract was fully integrated and said that this contract is in writing and there will  be no other side agreements other than those that come after it in writing any subject any modification of this written document has to be in writing can an arbitrator then resort to past practice in order to render an award even in spite of that sort of language hypothetically i think it would depend on if the past practice continued within the term of that of the new collective bargaining actions of continuing the past practice in spite of the zipper cause a valid zipper causeless in the contract would show that their intent in the contract is not what they actually meant but briefing before this court there is the first day or the first time that the union has actually addressed or even an opinion as far as what the effect of sections three and nine are on the grievances and quite frankly the responses wholly unfulfilling the the sections a deal with with scheduling are clear and unambiguous the parties expression we negotiated that the employees normal work week is forty hours per week schedule off five consecutive days from monday through friday nine that is what the party bargained for when mr lou because the maintenance work was expected to the schedule that he was expected to maintain as an employee covered under the agreement contending at the arbitration level was that he had free range to work on weekends even if ockers as his employer determine that he was not necessary or that his services were not needed at the plant on the weekend hours simply because other covered employees in this case the maintenance crew either full or partial crew without without regard to how many meetings members were required mr lew because the union took the position that so long as one of them is is there whether description of it through the award of what exactly it was that what the positions of the parties were but there are a couple things that that into the court's inquiry first of all there's a judicial mission in this case complaint whereby ockers alleged defended the grievances on the basis that it had the right under the c p a to schedule employee working hours and so that issue was joined in front of the arbitrator of correction and you're claiming now that the union's counter to that was past practice that that the past practice informed the arbitrators interpretation of the agreement well the union certainly as the greeting party had the first opportunity to frame the issue as it saw fit as far as what he wanted or what it was arguing before the arbitrator but they're taking the position that because they insist in still the issue of past practice directly into the forefront that doctors is somehow obligated to agree that past practice should be the only thing that was decided by the arbiter the only thing that is really well it's to the arbitrator and that certainly isn't the case when you look at even the but i'm just wondering when you're going to have to the law of arbitration your company signed their collective bargaining agreement that called for the use of an arbitrator settle the dispute is that right i was correct and you agreed to have the arbitrator for form the general functions of life of the courts where you can see that that's the issue that is a stated policy reason yes or right all right well then then what we do have is a situation of your company and the barking agreement here we have an arbitrary and proper ting the us labor agreement and the district court this is agrees with your interpretation but the not challenging the arbitrator's interpretation of the c v a at a high level the issue that the company takes with the award and this is supported by case law that honestly goes back discretion and when the arbitrator ignores it controlling provision of you agree that is where the courts have been region in holding they've gone beyond there are forty and that the narrow standard want to vote is the controlling what control what are you referring to and the c b s the controlling part of them and that your honor is where we go back to section nine because it does when the when the parties bargain for war what constitute a normal work week for the covered employees it was clear it was nine to five monday through friday five consecutive days and that's that section nine a one of the c p a titled normal work hours section nine b which is titled scheduling goes on to read that if an employee is requested to work outside his regularly scheduled work week and whether or not work is available he shall receive a minimum of four hours reporting  district court found is that there was an unambiguous provision before the arbitrator concerning scheduling concerning when it when he covered employee as the right to work overtime at the time the house rate but then the union argued that the company had a history in a practice of allowing mr libby to always be there whenever some of the maintenance workers were there and he is i understand the essence of his argument it's you guys can't change the rules of the game on me midstream without doing something explicit isn't that what he's arguing is that he's entitled to continue on as he had in the past showing up on weekends when the maintenance workers were there but contract come struction what you are insisting on by emphasizing so much as section nine and the law of the shop  of the agreement i will concede that you're going away from the law of the shop to the contract interpretation well i respectfully your honor i don't think that the two can be completely divorced aren't because when you are considering the negotiated rights of the parties you have to assume that the union takes the fix the company that has to not having a more robust or an more comprehensive we should have been recognized in the agreement otherwise we're left with the provisions regarding specially the zipper clause which says that agreements in order to be enforceable were to modify the contract that they must be in writing and there was another provision that we haven't talked about that at least on its edges talks about modifying the agreement and that's the term a nation provision of the of the agreement that section  whereby the parties agree that the provisions of the agreement are effective september one two thousand and eight and shall continue in full force in effect until february twenty nine two thousand and twelve it goes on to say that either party can submit written notice asking for modification of the agreement after december thirty one two thousand and eleven so there are other portions of the c v a which implicate or which involve parties asking for written say that is correct your honor all right so then you you you've alluded to it as admittedly unambiguous and couldn't be clearer you were talking about ninety help me understand how we could come to that record on page fifty five so there is yet another provision in the agreement which recognizes that its authors right to require employees to work open your position is that it's so clear and unambiguous time to get into that but the contract the c p a taken as a whole certainly recognizes that it's ockers right to schedule overtime and that employees cannot sell schedule based on one there has to be some maintenance worker schedule that we can that is correct but as long as there's obvious one let me through that you're take you're telling us that if as long as at least one maintenance worker shows up lube it can come and go depending on whether the weather or whether it rather go fishing that weekend and the company has no control over whether he's there or not on the weekends that's absolutely correct i mean that is that the arbitration were taken to its conclusion and it's not even it's not even extrapolating from from the agreement i right there in the right there in terms of you award but that is the fact of what the what the finding and couldn't the company do something about that couldn't you bring in action against him were i mean i think it's safe to assume that would be an untenable some position for the company if little bit just were to show up at his own discretion wouldn't you have some ability to to try to prevent that post talk respectfully i think that's why we're here in is to to put the true put the check rein and that's judge all the sort of description from from the whole the case about why and how the courts have the ability to look at what cing when presented with the issue of what provision of the agreement are you relying on to say that this award process is for freedom they jump right to the super clause they completely ignore section three b completely ignore section nine and what they're in essence arguing is because the zipper clause is silent on the issue of past practice that the arbitrator can seize upon that this record which which exercises right and does this court the right to look to the c p a to say if there's a controlling provision if there is something that addresses the rights of the parties as as brought forth and under the grievance and the even if you consider sex and i i think this is a little bit similar to what medical associate associates where an arbitrator's award was in forest even when the arbitrator started to language that did not exist in the contract the award because that that citing two imaginary language didn't paint the award here that the company and convince the district court to to get to vacate the arbitrators award on language that likewise doesn't exist if it were so clear to have the right to schedule then the thing he can schedule himself that it really strikes me as odd right mr libby can just show up or that they could have simply objected to the arbitrators authority to hear the past practice issue at the arbitration hearing it did none of those things so he well he certainly has a right to argue past practice right correct  when they would have no cause to object to that but what they're saying is i thought their objection is you can talk past practices all you want you can talk while the shop but take a look at these other provisions of the agreement which indicate that the company decides to schedule the workers the schedule themselves the company schedules the workers it seems like a rather on remarkable proposition in this realm is it not it is not if that in many collective bargaining arbitrator misinterpreted the language and we accidentally set up this past practice and we are unhappy with the result and we'd like to go to court to remedy it but arbitrator's decision is what we bargained for it is what the union gave up the right to strike for to have arbitration in the contract and this award is simply not manifest disregard of the underlying contract if there's no further questions