but it's a pleasure to be before your game i guess the most important thing i can say at this point is since the time when the arbitration was held in the cases before the district judge and after brief there was a case decided by the national labor relations board which is controlled at this point in time by the name of m b transportation which is in our brief our appliance it was what happened is in the the arbitrator and i'm sure you've already approved but the arbitrator said that because despite this link the list of rights that management had including the right to contract and contract out that he did not specifically include leave administratorship and that by x leaving out lead in ministration and i want to put this exactly page sixteen of his recognition that lead ministration is a mandatory certain part of well the law changed within the transportation the the law prior to this time before the board in the courts was that you had to show if you were going to take unilateral action as an employer you had to show that the unit had expressly an unequivocal you were waive the right to bargain over that we took the position and still take the position that expressly mention contract and yet does unequivocal show that they waive that right but the national labor relations board in september said that's not the standard anymore the standard is what is called contract coverage if the contract covers the action taken by the employer then the employer can take unilateral action at any point in time on  poor reasoning to say the least because but we did say contract but at this point in time the issue is a by the way in the transportation by the board's own language is retroactive and applies to all cases that's a that's a group question it clearly applies to a finding a bit unfair labor practices in finding that there's a duty to park but if there's no duty to bargain under the national labor relations then certainly there would be no duty to bargain under the contract itself that wouldn't be a labor via a contract violation if what the arbitrator said violated the contract was taking unilateral action they really yes you do have jurisdiction is it stipulated to in the case law supports that but the problem the problem as i see it is we have so many cases we even had one i think just came out last week that just hammer and a hammer to hammer the idea that the award could just be flat out wrong they could just get it one hundred percent off the rails but if it draws any essence  that what he did here is powerful and absolutely inconsistent with what the parties agreed to the fact of the matter is the reason the f m l a policy is in there this gave the employees the right to file a grievance which is obviously a lot easier in a lot less expensive to be with said it says interesting lee that in the in the contract it says that  grievance it didn't need that exide had bargained over changing its corporate right policy that they didn't have to do that but in addition they also had expressed in specific language in their management rights provision that gives them that how do you have it had you not say what he ultimately concluded was fine if you incorporate that entire document into the c p a because it brings in the policy and the absolutely unlimited contract to add anything and by the way retain all other management rides then they certainly would have the right to change the policy which and i might add let me just add one other thing the l sparing but i'd also add one other thing if it if it is even remotely permissible for this arbitrary to say the company can't do anything to change its corporate policy that is incorporated in here then that means for example it could decide to administer the f m l a at its corporate office in atlanta we would need to be able to do that the management right satisfaction but but they are and that's the world really the idea that this language means that an employee has to be able to go and hand a piece of paper to the h r manager in fort smith when it's the corporate policy is completely bereft in my view of any reason whatsoever and so i guess i could reserve a little more time unless the court has any other questions for me let me actually since i do that a few more seconds which is always a bad thing for a lawyer which the hospital did not agree to and which the bargaining unit employees are not entitled to he dispenses his own brand of industrial justice it should be overturned this is my favorite part of the bar maybe to uphold an arbitration award but it still exists as we are not and amen corner for arbitrator's ruling and that language that says where the arbitrator injects a restriction that does not exist and that's exactly what this arbitrator did and keep in mind again the management language says kind of measure rights likenesses you have to have an express contradiction and there's contract coverage stand or whatever it is and still your lives are utilized specifically the clear waiver standard in the provision that says we were tain all management rights included in those management rights or the right to contract out things the things that we have the ability to contract out that are mention function however in this particular situation the parties agreed to make family medical leave act policy whatever that means part of their and to incorporate it into the agreement and then end of the contract out her management rights provision says we can change it anyway as part of our management right so it's not whether you want to look at contract coverage or specific a waiver or whatever it is this is outside the scope of whether the transportation was talking about that's the way it come together in the arbitrator's not that was a decision that the parties hired the arbitrator to resolve they contracted to let him resign or that question and as long as it is not up our probably wrong this court's job is over and it is not believe wrong because as he explains management did not have to do this or not have to contract in this particular provision but they did anyway and once the provision is in you're absolutely right judge kelly once the arbitrator founded that the policy is this particular policy that is that is attached beginning at page eighty five dollars of the appendix that is  human resources policies and procedures family medical leave act once it was determined that that entire document was what the parties of corporate into their remit that his his opinion reaches a conclusion that is and i don't know if those contracts expire but but if if if you're talking about like a specific language a specific contract is there is there then an obligation to the next time the contract comes up for renewal to renegotiate or make clear what the part the fact that you can grill even after f m l a violation is opposed go straight to federal court is if it wants that to be the extent of its agreement then that's the time to clarify but once the are proven that finding because this case also raises and national labor relations act violation that is related to the cd a violation there is something akin to a ancillary jurisdiction wrestle with that myself and try to sort it out that here what bothers me i will confess to you that i looked in this circuit and other places for cases like th a violation and i will confess you know i'm not the greatest researcher in the world i'm pretty good i don't find anything like that so the jurisdictional question has bothered me my best reading is what i put in a footnote in my brief ok i will remove footnote it was beginning the n r a section which is because there is a relationship between the two that there is jurisdiction that they troubled me a bet because i too could not find anything that gave me a good answer and i was hoping that you two would clear up i've looked i looked hard and didn't find a better answer than what we we we have here and it is a troublesome issue and frankly i was when i went back to read this record argument that he asked me that question two and i said he didn't have jurisdiction but i will when you read that i will confess to you right now i misunderstood question i thought i was asking for something else which happens but your right to we can't we cannot stipulate to jurisdiction i think you have it for the reasons i stated but you may not now i also believe that this is a weird concept that's a sophisticated legal term i think that the decision on the scene be a violation is not married to the decision of you know or a violation necessarily i think that there are two separate things and you might have two different standards to apply i don't think so for the reasons i stated in the brief because the choice was to come here  that question anyway ordinarily i would say yes you were the cause the district court was the district courts review it was really no different than your re this question so i don't think you would have to remember that i think i have to say this in the interest of completeness with respect to the transportation and what you think about that particular stand i didn't find cases where this court remained to arbitrators to reconsider based on a change in the law but given that if you don't accept arbitrator to decide based on this what this new and b transportation standard means to this case i think that is where remains could be a viable question that makes sense to me  in my research on this and i'm pretty good i'm not the world's best i didn't find anything like that but it's a sensible approach but the bottom line for this case i think is this in our confessed to you that i spent a good portion of my career arguing that cases should not go to arbitration poles in all sorts of torts situations arbitration clauses in contracts because i like what they got he didn't strike he he he excepted the unions argument that the structure of these changes to the way f m it gets processed is a major change to these employers need based on the record that he was given i may think it's silly that you need a fax machine our smart phone but to these employees in the context of this agreement to this arbitrator it wasn't so and that the question that the part of this agreed to send to an arbitrary and what wasn't there more than just the phone call wasn't there the idea that there was someone with expertise about the c p a ye yes there was a lot more the majority of the arbiter of decision focuses on why this is a material substantial and significant change in terms of employees that's what we focus on most because that's what a leave and then take it back so you can change it under the agreement without marking the bigger question to the arbitrator was the n r a issue of whether this was a material substantial and significant change in the terms of employment and he went to great lengths to explain why it was families are affected not just work the way you apply the fact that you need somebody to do this milieu with this particular group but on side when you're dealing with a voice leave is the contract issue a contract that applies all x i placer to is or individual does this plant have a contract different than chicago or wherever i go the record is this contract applies to this plant in this bar that you may notice from some of the record that we made kind of a big deal about a party change at one point the national union was named as a party in this case  let me try to hit two or three hundred it's another one just to be clear there's no way that exxon could have gotten relief from the national labor relations board because they were not charging party did not file charges going to the district court  is did the company have a duty to bargain this change by the way to your question they changed policy corporate while including all their union plans this was the only and the real reason the union filed a grievance and i know because  thousand and sixteen this is now one of the things we can just clean up and basically go back to in time for years which is not something that excited should be required to do because of its strong powerful management writes quote l had said and the transportation the board and the courts including this court in the supreme court have brought deference to what the labor board says that's always been the rule unless with a labor support say this is completely wrong