dollars communication workers of america versus southwestern bell ability to the contract he is called upon to interpret by rendering a decision that completely ignores the pertinent language the parties quote the bargaining agreement contains an arbitration provision that states arbitration award can be corrected for technical error computational error and so forth but such a correction cannot result in the be determination of a previously result play in that exactly what technician are a technical title that go out to literally a customer's premise and install talk mean occasions equipment such as high speed internet t v over an case where a court has ever vacated an arbitrator's award when the arbitrator cited rule forty and said i'm correcting a technical clerical error as a court never said that's not even arguable the justified what's the case well i think that the cases are that well looking st at the i b e w no case i just do you know of a case where a court has ever vacated an award where the arbitrator said i'm using my authority under rule forty to correct it and then they they classify it as click away or call or technical as a court ever vacated that the closest would be the lindland case from the th circuit in two thousand concerning the dispute between wrestlers as to who gets to be on the olympic team and in that case the arbitrator was dealing with commercial arbitration rules for aaa and rule forty eight there is the analog and of the court and the opinion by judge easterbrook said you know he's not applying rule forty eight here he's just ignoring it because the nd arbitrator vacated the st arbitration decision which would have sent a different but did the nd arbitrator dizzy and folk rule forty eight yes it's my understanding he did because in what he did and i think that that would be consistent with what happened here he looked at rule forty but you can't reconcile what happened in the decision with what he did because he clearly determined the merits of the  possible for that to apply here is that the arbitrators jurisdiction his authority is limited to what the contract says and he can't in the trying to do one thing violate the provision that says that cannot be determined the merits of the can't claim and that's the slippery slope here is that for sixty years the courts have been warning against the problem of arbitrators coming in dispensing  brand of industrial justice and when an arbitrator looks at something and says i made a mistake but the contracts has a prohibition on him doing what he then does in the very next step that's the problem is that he doesn't have just general powers like a state court judge would have to resolve an issue he's a limited to what the contract invest in him to do which is resolve an issue under the terms set forth in the contract like yes the key question for me is why he be the arbitrator characterized what he did as correcting a technical error i have i'll tell you i have a lot of sympathy for the argument that that's rude wasn't a technical or however he characterized it that way so tell me why it's not even colorable it's not even arguable that that's correcting the technical error because in such a corrections cannot then lead to the read determinations of a previously result claim and i think that the whole of rule he's got to be read together that you cannot just say i'm fixing a technical error but then ignore the part of the end as in the lindland case where it says you cannot really determine the merits of a previously result claim could a technical a correction of a technical error result in a different amount of an arbitration yes i think so like it because it talks about computational errors and there are some of the cases that the district court relied on that our requests for clarification that perhaps computations so for example in the rain the two carbon case there was a problem created by the inclusion of some language in there and that led to the party seeking a clarification who who that exhibit was referring to i thought i guess he thought it was referring southwestern bell it wasn't and he said i just it's total just total mistake on my part sorry why isn't that a technical error he just misunderstood the import of the well to me it's not a technical error because i think the technical errors go to things like computational or things like basis of damages and things like that if you look at rule six of the federal talks about just a general mistake that seems more pertinent to what's occurring here that there was just a mistake and again i would also go back to the thing that you can't take away the types of errors that can be created from the limitation but they cannot lead to a redetermination of the merits so to go to your earlier point your honor that if there is a computational error in the award about that leads to that was and correct say the basis for back pay had been you know the incorrect assumption of previous wages that could be corrected because you could say your honor mr or mrs arbitrator that you know he made twenty dollars an hour versus the eighteen you cited in your award that would be a technical error and that the type of computational error that rule forty was designed to address i don't think that rule forty stands as a general means by which a party can rationale if you can for why exhibit four does support ruling for the weld union introduced it to show a pattern or practice that in the midwest what it happened is they made an explicit the lower pain technician titles here there was never any such agreement of that show anything about waiving splicing or mechanical and our point was that both things are reserved for any type of slicing period both types mechanical and buzan are reserved for work by the higher paid classifications ok so that's that's that's your argument about why exhibit four would support the and so then the bell sped off that operates in the ohio area and i forget the name of that regional bell operating company but that he is assumed when writing the award that it was on point rather th offered as a persuasion as to look like i said i'm sympathetic to the view that what you're describing here is not a technical error but it would be like you said is if judge higginson reading read a decision of our court and in mis understood the weight that ought to be accorded to that decision which he would never do that but but but that doesn't sound like a technical error that sounds like an error in judgment about the is that what you're saying well what your honour's describing would be something that where you'd be dealing with you know at the opinion issued by a judge and you could move to reconsider under the federal rules of policies or you could move forward on reconsideration you could take it to the supreme court there are rules set forward as to how you can deal with that situation here the only rule that allows an arbitrator to revisit an award and understand that i'm just trying to characterize the use in the arbitrator's decision was trying to analogize it if it's possible to a judge rule using precedent i don't know maybe that's the way i would think that it would be you know analogous maybe more back construction which you really can't review on appeal because it wasn't a case that was being cited but it was a document about here's what you have going on somewhere else where they came out and said we're holding on to  i again it's a very limited review and it is limited to cases where the arbitrator has manifested an infidelities of the contract by failing to to have his award draw the essence from it and one case i'd point you to recently from the th circuit is the southwestern bell or southwest airlines versus transportation workers case from two thousand and nineteen where an arbitrator was facebook the contract that permitted him factor in the th circuit said here you misread the contract and therefore you are going outside your back but that's a little different right that's the contract with a specific point here the contract embrace the aaa rules the rules a rule forty seven you get to interpret the scope of your authority and do this then he interprets rule forty to be expansive we may all think that's wrong it's not like a district court doing clerical correction at sentencing under our law but it's arguable the southwest airlines case is very instructive about that even though there is a great deal of deference accorded to arbitration decisions it's not a blank check as the court said it will marketers don't wield unlimited power they wield the power given to them by the contract and that the best way to resolve the situation going forward for the parties would be to include a procedure procedure whereby there can be factual reconsideration submitted to the arbitrator so that that way you can have the merits of this type of situation addressed without having to do violence to the language of the contract because the slippery slope again is the notion that  brand of industrial justice that instead of looking at the terms of the contract and applying the contract they will just do what they think they should and in many cases like that but that circuit has reversed that the delta queen decision from there is cause determination or discipline when you are grossly negligent or careless and in that situation when the arbitrator manifested in fidelity the contract the th circuit vacated the decision  to them as the company i would submit judge doc and i go further on the scope of review and the standard of review before this court i would submit that it's not just extremely limited it's extraordinarily limited whenever i advise my clients if they want to take an adverse decision up to the court i give them the the usual you got two chances slim and say almost arbitrator ever violates the provision that prohibits redetermination merits as long as the arbitrator says i'm characterizing what i'm doing as correcting a technical er credible or honest belief that there's been an error and there clearly wasn't that here or there or there was there was no reason to dispute the arbitrator's credible and honest belief that he made case that the universalizing in that case the that the court of appeal said this is what the union did that is not read determining the merits i'm quoting fro and forty nine of that decision the court there said the union's request was narrowly framed notably it did not challenge the arbitrators reasoning or his substantive analysis in any way it merely inquired about the application of that reasoning and analysis to the factual record that's exactly what but the company did hear it pointed out to the arbitrator hey on the factual record you said but for the past practice of union exhibit four of these parties i would have found no violation of the contract was that the technical aspect of the error that he thought initially exhibit to these parties and in fact it did not yes that is that is the nub of the here and again this court in rain and again judge hearts later said that the the union for example in this case has the burden to show that that that interpretation it was an error was was not genuine or credible that there is no proof in this case the other issue though i would bring up is rule forty the aaa rules which are part of the parties agreement gives that authority to interpret rule forty two dollars the arbitrary and interestingly rule forty does not define what an area nor does it define what re determining the merits is so that is an interpretation that the parties agreed before the arbitrator's to made and that arbitrator made that determination and under under court rulings we have sort of a double deference here one the the a rules are incorporated and part of the the parties agreement the interpretation of an arbitrator of that and more significantly a district court decision the ablest in case gives a wonderful elegant review of the standard of review for procedural issues of tripoli citing supreme court decision it was my me again judge easter brook risk decision that came out differently did the arbitrator there invoke the the rule i don't think he did exactly he may have mentioned it just like the the horizon court in florida that the uni had said look i'm going to change my decision and then characterize it as a technical correction the new rule forty in your view that decision should still come out the same way exceeded his powers or should it now well i actually i don't have as big a problem with the result in varieties and because i do think that the parties particularly company may have been a little lucy goosey with arguing the theories of the case that's light years different than what happened here that the company did not read argued the case didn't have bring in new evidence did not throw in new theories thought it was accepted the day or the arbitrator saw that its authority to reconsider it came from a florida statute which in fact applies to courts all well that that was another distinction i think was the arbitrator there did invoke the florida statute on reviewing arbitration so they didn't invoke that well they didn't invoke rule forty right or the an reviewing the arbitrator's authority his powers you look at it differently applying the essence test i'm not sure that i talked about this is the arbitrator mr de souza your claim missed it at the time that it was presented oh i objected like heck you did it yes and the unions wound here is somewhat self inflicted because nowhere in its post here in brief did the union ever elaborate why it was putting union exhibit four in the record in the st place i kept arguing to the arbitrator this is a different company a different bargaining unit different contract different bargaining history as arbitrators or want to do off all that informant it's worth i've got a little more time and i have to raise this issue in for the reasons i've already said i do think that this is the nd award draws its absence from from the contract there's no question it at page two of his  it's not violated in effect i'm duly obliged to correct this here good for him it's a very intellectually honest decision nd page of the award he gets into the merits of correcting that award and he quotes the parties violation that's that's quintessential drawing essence from the contract the company should win on that basis alone but but and for that the law students behind me i would recommend that you always have an even if argument and i would submit in this case even if this court were to overrule its decades long application of deference extraordinary difference to this case well and work for the benefit of the law students we couldn't do in other circuits that if the arbitrator ignores the expressive language of the parties contract then there is no drawing essence of the of the contract in the award and so if i submit if  award is set aside for whatever reason so goes the st because you look at the operative language in this case the company and the union bargaining good faith and the company paid about three and a half an hour every hour of the week to print techs regardless if they're doing the splicing or for language that said the company can assign all the work at the serving terms i don't find much ambiguity and so since the arbitrator properly i would argue corrected it's st award we don't need to address there but if we have to even if the nd award award would not draw its essence from the part of the c p a because it clearly ignores the plain and expressive language of the operative line and with that i have nothing further to say and i'm open to any and just for the benefit of the court the discussion of exhibit four in the record for transcripts from the arbitration hearing is found on pages one hundred and seventy nine thousand two hundred and eighty three of the record on appeal and as to the application of the section of the rise in case that opposing counsel mentioned earlier that it is consistent with the original reasoning again the problem there in lies that it still they lead to the prohibited redetermination of the merits that it might be consistent with the industrial reasoning but is still lead to what such a correction cannot do and that is the problem here is that you can make any type of technical or computational correction under rule forty however you cannot make one that results in the redetermination the merits of a previously dissolve point and that is where the arbitrator ran afoul of rule forty you can't just focus on one part of it while not focusing on the other part the limitation of it that if all it said was arbitrary can make technical or computational corrections and as to the company's theory that the nd award is consistent with the language of the contract the form that theory is that that would hold true had that been the arbitrators original reasoning but it was not the other evidence relied on by the archer showed that the language that the company talked about of the ability to sign any work was bargained in two thousand and nine and it wasn't till the years later that the splicing work in question began to be assigned to them and then just the mechanical splicing portion of it the job title for the purpose technician does not mention anything about splicing and normally when there have been changes negotiated to that job title the job description has been amended to reflect those changes that did not occur here the only titles that state this title splices cable are the customer service technician in the cable slicing technician titles and those are about the technicians to whom this work was assigned which led to the filing the grievance and that said i yield to any questions