many minutes of my talk i think i mean in this case the district or it exceeded the proper judicial role when it denied the union's petition to compel arbitration the proper judicial role  in such circumstances is for the court to look at the subject matter of the dispute between the union and the employer in this case pardon me mr barber is the first thing that should be done in  if the parties of this voluntarily and with discretion choose to mediate there will be a mediation and a decision unless i'm us the media sufficient evidence and then it goes to arbitration so it's a determination of what the contract conditions are as to whether there's a mediation and an arbitration is not a procedural matter it's a matter of the substance of the agreement is not right with respect your honor no it it is that the question of whether the move the mediation here bars arbitration  is precisely a procedural question one that there has to do with the terms of the contract you get if you choose a mediation the mediation determination is quote binding well unless the mediator before he runs the decision finds is not sufficient evidence so therefore he wants off and then you can go to arbitration that's where i read it well first your honor the union's position is that this is a procedural issue and that why is it to lose you that the subject matter of the dispute between the parties here is whether the terminations of the grievance ros  and well let me know now if the thing as your contract says binding arbitration i mean binding mediation or arbitration it to me it do your best argument would be is there  whether people can engage and non binding arbitration and that's not part of it your but if it can only be mediation arbitration then do you want to bite s it i know it apparently it was said at the beginning this is non binding so it's just a badly written agreement or what's going on here well your honor to do opera to decide whether the whether arbitration is proper here after this mediation took place does require quite a deep dive into the collective bargaining agreement and the first issue as your honor said is whether this was a binding mediation under section twenty five deal it seems to me the only way you can prevail is that it's ambiguous and then you get to get into the fact that it's ambiguous whether a binding mediation is different then just if the parties want to mediate and then you can get into bringing in all the extrinsic staff but if it's just if it's only mediation and arbitration then you're  employers and employees and this is what you all do for a living and i can't believe that you don't know what you're doing when the and but then on the other hand if someone gets up there and says this isn't a banking mediation i  think mediation by its very nature isn't the same as arbitration but binding mediation the way it's written and there's got to mean something your honor the union said at the outset of this mediation session we don't agree to binding mediation and section twenty five d says you only get binding mediation if on a case by case basis the parties agree to use the twenty five d process the binding mediation process the union said we don't agree to binding mediation i know of no place in the contract and no rule of labor law that prohibits a private employer and a union from agreeing on a case by case basis to use if you want to get in all that if you want to create a tribal issue the tribal issue here for the courts is whether the subject matter of the dispute whether the grievance over the terminations is  and the district court didn't resolve it one way or the other they're battling declarations the district court didn't resolve it one way or the other instead the district court really rested its decision on the alleged on timeliness and the alleged improper form of the union's arbitration demand agreed to a binding mediation contract provides the mediation decisions are binding once you agree to mediation you agree don't binding but with respect your honor we disagree the contract says if of mediation if you agree to binding mediation on a case by case basis then it's binding but the difficulty is that i read that there's only one kind of mediation in this contract and that's binding mediation you think this is binding mediation and non binding mediation because you can agree to mediation or not that doesn't follow with respect your honor i think that the parties on a case by case basis may agree to flip a coin over a grievance or mediation where the parties agree to a mediator in other words you don't have to get any outside party in it and if you do that then your rules are quite more relaxed doesn't get you into an arbitration circumstance where you have two options one is you can mediate and have that binding but if you don't agree to that you don't agree on a mediator then and vine then you would go to an arbitrator and then you have to go to the federal or state mediator you go to their website you find that you've got all sorts of processes you have listed go for the so you have two options one is simple but you agree to it and it's binding the other is more complex and it's also binding and it seems like it makes good sense for both of you want i'm cheap but it's mine and one is more expensive but it's mind don't you agree to want to you don't you have to strike mediators and go through a process of simply find somebody that is imposed on you your honor i agree that those are the two processes in the contract but what happened here was the union didn't drugs i want you to look at something outside this agreement which is what i said before i went in there and therefore find that that should be used to interpret what the contract means question is whether we take your statement before the mediation and conclude from that we're now going to find that this doesn't mean what it says once again your honor we believe that this is a question of what procedures were followed and whether the union has met the proper procedural prerequisites to demanding arbitration and as such under wiley and their operating engineers versus morris and newton under the servant mation case this question about the status of what happened at this mediation is a procedural question that has to be submitted to the arbitrator because the substance of the dispute is over whether this woman was fired for just cause or not and that substance the merits of that subject matter is clearly arbiter ball under this agreement and i want to ask you one more question the union had walked in and said that that wasn't a factual issue you still saying that all mediation should not mind you know your honor so is that the key to your argument the statement that was made by the union before the mediation that's correct and it's supported by the mediators document this mediators recommended settlement itself which certainly does not look like a binding decision it's titled mediators recommended settlement it says it's a come upon me since the parties didn't reach an agreement to recommend a settlement it recites some facts and then it says i recommend the following settlement and that certainly doesn't look like a binding award or binding decision and so that he recommended settlement what about the point that that doesn't sound very much like a binding decision as judge wally mentioned it's a much less formal procedure right the mediator in this a case by case basis if mutually agreed to by the employer and the union so what is the meaning of this sentence if not that mediation is binding only if both the employer and the union agree it will be binding and then you've got the union dispute that are great to finding mediation and then plus you have the language of quote recommendation for settlement board well i know but if you create an ambiguous contract and the contract lends itself to the fact that there can be both binding and up you're absolutely so how was there a mutual agreement that there was fine mediation if one side said this isn't binding and the other side just sits there and i mean why didn't your party then get up and say well then we're wasting our time you're on someone says i don't agree to binding mediation because no one the person actually that attend the mediation on behalf of the company has been doing this for twenty plus years and everybody never before has that happened and never has it been contemplated that that's a possibility so the fact that the unions person said that didn't holding water doesn't matter what that person says the agreement is you green the parties if you define that's what this is about one person is standing there saying i don't agree to binding mediation where that this is precisely the type of situation that the ninth circuit considered in sort of a nation where sort of nation the court said the facts the board in that case were not sufficient for finding that the there was no procedural defect here your honour's it's playing that there is no factual dispute at issue right that the mediator meet reached his decision on april first twelve days later  union submitted its demand for a retraction there's nothing in the record where the union says this is why we didn't submit it time there is no reason for it the only thing they can point to is the fact that in their complaint they allege that they time the pilot also what is the procedure by which the parties came to mediation here how did they decide to mediate how was the mediator selected is any of that even in the record it's not your honor ok so then i say if if we were to find that the language of the c b i is ambiguous or a reason the place is sceptical to either party's interpretation does that mean we should remand for an evidentiary hearing on among other things the union's contention of a pattern in practice and the party should ally's a non binding mediation you're saying that never happens they're saying it does happen so you're it's not something that's a love by the country but while there were not asking you to deviate from what the contract says right so on all of those things right and then we win there your honor that's well i don't know whether you win or not there but i'm saying the way you win here is it has to be that how does a decide the question about whether it's not mediation was mandatory and binding or not binding but the fact that they had to say at the beginning of the mediation after the parties had agreed to it to say this is now non binding is because they understood that it was binding from the get go otherwise they would have needed to say it right if the parties had agreed to non binding mediation going in everyone knows it's non binding there's no need to say got it by the way this is non binding everyone  say that that to mean a more persuasive argument is the opposite so if if they had said nothing going on then i would say your argument would be better that it was under the agreement and that it was but there's no evidence in the record is how you all got to mediation and then plus we do know on the record that they say it's non binding which i mean can can speak prevented from just mediating on their own lawyer not under normal circumstances here though we have an agreement i mean this so any show any mediation by normal contract law there's actually a very special rule of decision when a party under a collective party greenman seeks to compel arbitration and that is you look at the subject matter of the dispute determine if it falls within the scope and if it does you order arbitration unless it can be said with positive assurance that the subject matter of the dispute is not arbitrary will the court must order arbitration and so that is a quite a different standard mediation even started there's an undisputed fact it's a union sent this mediation will not be binding your honor paragraph twelve of the complaint which was never answered says that the part th union never agreed to part binding over a binding mediation your honor this this record is not very well developed the district court did not actually make a finding of fact one way or the other whether the the union said this is non binding but what are you is that just something you're hypothetically sane or do you have evidence that the evidence of what is there evidence before the mediation started that it was not find someone said that before the mediation started ye there's evidence excerpts of record paragraphs fourteen through sixteen page twelve excerpts of record nancy browning declaration she goes into detail about what the union sad and the company's reaction at the beginning of this contract didn't provide for that the contract also doesn't provide for mediation to be non binding the contract what the contract provides is if the if both parties agree on a case by case basis there's this optional binding mediation grievance procedure it doesn't say anything about what the parties may or may not do this i don't think doesn't allow the parties to choose between binding and non binding arbitration and says you can choose mediation and if you choose  is binding power i think that that doesn't correctly construe with respect your honor i don't go to the pro it correctly construe the contract it says that on a case by case basis the parties may agree to binding mediation it is silent about non binding mediation or any alternative that's excuse you know it means if you see one expression and excludes all others and here there is an expression of binding arbitration and no mention of non binding arbitration  so tough interpret the standard for you well your honor with respect this is why this court said in the circuit mation case that procedural questions like this should be submitted to the arbitrator because arbitrators are familiar with industry practice they're familiar with the way unions and employers relate to each other and resolve their disputes and they're familiar with the many delays the many so iconic ask you to ask if those statements had not been made that way this is non binding if they just shut up an immediate that is your position worse then yes i know you would still probably come an object anyway but but that's ok but that's like a short place or in my mind ye don't but again our position is that this order reached the merits but ok orders in all right we've gone over and this unless my colleagues have any questions thank you for your arguments this will be submitted