the issue on appeal here is very very narrow and it's a legal issue the issue is did the district court err as a matter of law by not deferring to the arbitrator's opinion and ward which tel that the inspection and testing of angry ball is for any new work under the collective bargaining agreement we believe the district court did air this country's national labor pool when there is a district court deciding not to apply collateral e is there was a lot of discussion in the briefs about the findings of fact and conclusions of law but it looks to me like it actually happened on summary judgment is that correct and it did initially we raised it throughout the lawsuit and there was additional decision on summary judgment and then we later raised it again in our and was there any discussion after your post trial briefs of collateral estoppel it looked to me like the district court considered in the findings of fact and conclusions of law after trial potentially considering what the arbitrator said as a matter of interpretation or something other than collateral estoppel that the collateral estoppel decision that you're now appealing had already been made and wasn't reconsider is that a correct understanding of what happened or do you have a different view of what happened we have a different view of what happened  what the court did was it decided not to defer to the labor arbitrator's decision and that we believe was the error the court should not have allowed is that in labor arbitrations the district court erred by actually not deferring to the decision are you or are you using just maybe we can get some clarification of terminology here it sounds to me like you might be using the terms interchangeably collateral estoppel and deferring to the arbitrator's decision are you are you referring to those two terms interchangeably when you when you argue that the district court erred by not deferring to the arbitrator are you saying that the district court was bound by what the arbitrator held yes we are that's collateral estoppel it is estoppel but what i what we're trying to fix blame is that collateral stoffel is different in the context of labor arbitration and i think that was what was disregarded by the district court the district court took a look at what the arbitrator had decided and thought oh this isn't detailed enough i don't think well i realize excuse me but i thought that the underlying issue this is a longstanding dispute is  raise it every instance that we could because again our point is that an arbitrator in two thousand and six arbitration between smith emery company and the union has decided that every ball issue that the arbitrator decided the same issue that is before me and if the decision is yes it's exactly the same issue the district court should have been given deference to that decision but with the district court did what was inappropriate was it it took a look and thought that oh the opinion in a word does not explain the difference between pre and post since all the anchors and wanted further explanation but with this court with the national labor policy in the doers trilogy safran should have been given their arbitrators are not judges arbitrators are not required to explain their decision there's there seems to be a distinction being drawn here between the pre installation inspection work and post installations to well that's what the  ain't we are saying that there is no distinction well but it does the district court thought that that was inappropriate again with the deference that should be given to labor arbitration decisions is the arbitrator the  company taking the position that none of this is covered work no the actually the this is the key this is the key and this is what the court were asking your honor so take a look at in order to determine that the issues where the say that were decided in the two thousand and six arbitration and what was before the district court take a look at the abbey transcript from the arbitration the parties that specifically lay out the issues there and the president of smith's every company also specifically defined what a horrible testing and inspection is at issue and it was with preference to the post installed anchors these are anchors that are drilled into concrete out of the concrete  and again our position is about point the it is not the role of the court to fill in the blanks or even attempt to to basically second guess the arbitrator's decision well what is what should the district look to when when the parties dispute whether or not an issue was cited in the trees again with the district court should have done was taking a look at the arbitrators opinion war and exactly what was decided and the issue will wait a minute maybe to get the judges didn't quite make sense but you have to remember that's a lot of the shot there's a distinction here when you have an arbitrary arbitration the arbitrator there is looking at the industrial practices the bargaining history between the parties and the law of the shot they understand what the work is and all that and the judge going in there doesn't have that background so that that's why we have to give the deference to the labor arbitrator because this is what the parties have bargained for with respect to an answer to their question and they got that answer to the question in proponents of these covered work who didn't draw the distinction and  point i want to make you have to remember the arbitrator specifically stated that this is they found to be the violation was intentional that and totally disregarded the fact that all of the relevant this myth that republican have a license to perform this type of work totally disregarded that and that's the only type of work that the smith emery company or the laboratories was performing with respect to this ankle testing so it's clear that it was the same same type of work and even if you take a look at the deposition the testimony of mr partridge he clearly says of this when he was active smith emery ever performed this work oh yes yes they did when did they not perform the work oh when we started getting all these grievances board and again in california we cited the statute that clearly states that once you're there becomes finding and becomes part of the contract of the parties so at this point if there are no other questions i would like to reserve the remainder of my time thank you difference between pre and post installed but the difference between testing which is not done by inspectors and inspecting which is done by inspectors and it's the difference between testing the specs that point we're talking about evaluating the evidence that  refer to resolve this issue on appeal are the district court and then where the head and construe the contract right now independently independently and independently concluded that the construction of the contract that they would have to if they wanted it to be a stock was in fact the correct construction and that would be but that's not collateral estoppel mean regardless of whether the arbitrator made a correct ruling or an incorrect ruling the question is whether the arbitrator decided the question i don't i understand that but to be clear they're saying if you do that we should be stopped from arguing the licensing point so that was one of the things that they argued in their summary judgment motion having already been decided and they deserve collateral estoppel effect they went wow where do you think that was how do you explain that not being decided when it you are to sixty seven the arbitrator says all testing is covered work and then the desser course seemed not even directly addressed that well to think that the simpler answer is that the district court went on its decision to conclude that various types of boat testing work were in fact covered work that is that arbitrator first agreed that appendix b is part of the agreement and that both testing and water control inspection are therefore covered and also concluded that high strength structural steel i are hopefully will get to mine but you were talking about how actually judge snyder's summary judgment ruling went into more detail on that point and drew some distinctions yes i want to see where that is because i didn't see that either weird but but but the problem is that their appeal is about the sentence from her ruling that you read earlier which is she reciting the arbitrator's ruling which was  ball testing inspection work and water control inspection work are bargaining unit work and the grievances should be sustained throughout their brief the trustees misrepresented what that statement is they keep between both testing and inspection they put in and between both testing and sections and that fundamentally changes the nature of what the arbitrator decided and the arbitrator wrote it and this is a simple set and boat testing modif inspection is one thing it is both testing inspection work is what this is what the inspectors actually do they they watch the inspector they walked the test it had the arbitrator wanted to the average waiter could have said both testing is covered and inspection is covered that's how they read it but that's not what the arbitrator said but you know that's why that's why they're not entitled to collateral effects but i'm looking at your arbitration brief now the post arbitration brief and you so maybe it's maybe your answer is going to be similar to what you just said but i hope i think you know on page twelve of your post arbitration brief you say bolt testing involves the testing of certain bolts that are installed after concrete after concrete is poured another term for them is drilled in concrete anchors  a hole is drilled by the in the concrete by construction personnel in the bolt is inserted in turn the bolt be proof tested by a licensed lab to make sure the load that the structural engineer called out can be effectively carried by the bolt so the load is applied that would cause the bolt to rip loose any reference to bolt testing work is found is only found in exhibit b where the union claims is part and parcel of the parties last work and what else was at issue other than what you put in your brief well let me explain first of all what you just read talking about full testing is with respect to high structural steel which is not the kind of concrete testing that we're talking about where the wait a minute you're talking about you're talking about the testing of bolts after concrete to support which is most installed  post installed testing and you might be right about that the arbitrator might have been wrong that appendix b included post installed testing but the arbitrator rules that appendix b included post install testing and it doesn't matter for purposes of collateral estoppel whether the arbitrator was right or wrong the arbitrator concluded that do that feel has started so what the nature of this yes for collateral estoppel they have to prove or offensive non neutral collateral estoppel that the identical issue with actually unnecessarily litigated ok about was whether bargaining or turned on whether there was a license and we disagreed about whether appendix b was part of one tract those were the only issues that we raised in arbitration briefs those were the the arbitration oweis near the gate in the arbitration was you said look they can't win on the bolt inspection issue and the reason they can't win on the boat inspection issue and by the way the only kind of bo inspection we're talking about this post installed bolts the reason they can't win on that issue is because you have to have a license to do that work and our people in smith emery do not have a license to do that work and  this other company have a license to do that work and therefore they simply cannot when the arbitrator rejected that argument and said you cannot hide behind the argument that your people don't have a license and therefore they can't do the work the real question is whether bolt testing is covered by appendix b and i conclude that both testing is covered by appendix under collateral estoppel the only issues that are eligible for collateral estoppel effect are issues that were actually litigated the only issues that we put into play were the the appendix b and the licensing issue we did not argue but that is bargaining unit work yet both testing modifies inspection there would evidence in the arbitration record that certain people do testing certain people to do inspections and that was exported a great detail i have the full arbitration transcript in front of me one thirty eight and it's as if it's implicit in the testimony i mean here's one of the problems with labor arbitrations the arbitrator understood and the parties all understood there was a difference between testing and inspection and this was simply a description of what of what testing is and that nobody at smith every company is licensed to do it and therefore it can't be burden you know work but my point is weight when when you get to judge snyder's ruling at trial she accepted their construct that licensing doesn't matter and that what matters is  contract is whether this work was historically done as a matter of custom and usage by bargain unit members and that issue with nat litigated in the arbitration that is the most important point here the issue has to be identical what i was starting to s question before is my difference between the difference when you me as to how and analyzing this is the point you're making would make sense and i say they don't mix well with would be powerful with respect to race judicata with respect to race to the car that we could be precluded from raising in this case issues that we might have raised in the arbitration but this is not a race to the kind of case because it's different parties judgment brief before a judge snyder is that you agreed that you were bound by the arbitrators ruling and to me like this goes to the question of whether it's abuse of discretion or did novo review i mean to me when you're reviewing a district court's decision whether to apply offensive nonu to mutual collateral estoppel the reason it's abuse of discretion is because there are a fairness considerations that the district judge takes into account but there were no fairness considerations at play in this case because you already conceded that you were bound by the arbitrators ruling the only thing that was left was whether the arbitrator actually litigated it which is this which is the same read that in context we were talking about the licensing issue and and you're bound by the arbitrators award as you interpreted it as we understood it and as is properly read it's only properly read to include inspection work without your conceding that there's no problem about them being a different party there's no problem with anything other than just figuring out what was actually decided that right now if it means we're not contesting it as a limited we're not contesting actually said we agreed that we're bound by the arbitrators rulings the usually with offensive non mutual collateral estoppel the defendant against whom stoppel is being asserted says it's not fair to assert this against me because i didn't understand what the stakes were when i litigated this last time and the plaintiff wasn't there and you know that and that is why district courts i think are given discretion and why the  court reviews the district court's decision for abuse of discretion in that context because there are fairness issues but here there are you've you have by saying we are bound by the ruling you've basically said there are no fairness issues the only issue remaining is what did the arbitrator rule it's fairness i think that a crib reading of what we said i think this is you have you read well the reason why we didn't raise a fairness issue  issue the judge let me make one preparatory point because this issue wasn't raised to trial and the judge had already rejected collateral estoppel there was no trial with respect to collateral estoppel and we didn't put on evidence then that they come here and they say collateral estoppel should have applied you have all the opportunities you can you have to say why the lot of us double should not apply the only thing you that is this issue is not the side you didn't say they're not the same plaintive this would be unfair you didn't say we didn't know that the issue here was how much work we needed to pay for you didn't say any of that you just said the issue was not decided so what no that seems like the only thing we've got before us we've got to figure out why there was decided not i think what the judge said at trial goes to go through fairness the judge said because the record was so should get you part of the arbitrator if you look at what was said about both testing that objection is about three pages that goes to whether it was decided though right again and i believe that the key issue here is taking a look at the arbitration the arbitration award the transcript the arbitration board clearly that was the issue before the ar and one of the lines was is that the inspection covered work arbitrary trait or clearly stated what and then are you he said now he's saying there's a difference between testing and inspection what is your response to that are responsible if you take a look at the collective bargaining agreement it covers both have seen an inspection and then grab the arbitrator as as including both absolutely absolutely and if i wanted to if i could draw your attention arbitration pages one forty five thank you one thirty five and if you take a look at a certain line sixteen says could you please briefly and i emphasize briefly describe what testing is the arbitrator so that he might have a better understanding answer these are almost exclusively all boats that are installed after concrete has poured and another term for them is drilled in anchors or hole is drills in the concrete and the bolt is inserted and then it is required that the ball be proof tested to make sure that the load that the structural engineer wants can be effectively carried by the ball so what we do is apply a load to the bolt and we pull on it it is that simple and the work that the trustees claims and again in reliance on the arbitrator's decision that both have the inspection covered is the pull testy the torque and the proof load which is what he just described is when you put the load on the ball to see what sort of so that description you just read it is that testing and inspection are one for only one of those well it kind of goes hand in hand because you have to have someone that's actually you know doing date on the the equipment the calibration and pulley someone that's inspecting the drilling of the hole and watching so it's all the entire process is covered and post previous post well premium postings covered by the collective bargaining agreement the arbitrator didn't make a distinction and that's crucial here and again what the court did and what every company is doing now is trying to find ambiguity in the very clear decision that both testing inspection is covered again the collective bargaining agreement provides that any of these grievances are resolved by arbitration this is what the parties are in for they bargain for the decision with the arbitrator the class of collective bargaining agreement cannot take every situation into account it's not going to explicitly state every type of work that's covered and that's why the arbitrator understands the industrial practices of the bar and in history between the parties and the law of the shop that is what's crucial here the law of the shop and he is the one that the parties are asking to fill in those ga and that's what the arbitrator did and it's a clear if you compare the two do the same issues the end of the district court went along to put it in two sentences in two sentences when she dealt deeper into the arbitrators decision and wanted further explanation the arbitrator is not required to provide explicit findings of fact and with the district court parties that she disagreed with the judge absent they do as long as the same issues were decided and we're not talking about a routine inspection or window washing we're talking about anger ball busting if you take a look at this it's clear both of those issues were decided then the court is required to defer application in the labor contracts and cannot be used basically to give the court any discretion in reviewing an arbitration award because if you do then it's contrary to the steelworkers agreement we could not be party of that arbitration but we recognize that we are bound to any did you have a major case that tells us what you're talking about now that we should consider the trust in the union to be the same entity essentially that and we also have the may actually backtrack a little we have the california statute that we cited that makes any arbitration decision part of the collective bargaining agreement agreement between the parties so if it's part of the agreement we're bound by that because in order to put that doesn't tell us that for purposes of a stoppel analysis we should consider the trust and then union to be the same party because that it's mutual instead of non neutral ok i think if you take a look at the i suppose for fairness type of issues and that in and analysis if you are going to undertake that analysis again we say that the partly hosiery is just not out of all it should not be applied in labor context but here