here chelsea grand versus the new york hotel and motel trains count connelly for the appellant chelsea grant may have please the court arbitral of words are subject to deferential review but this is the rare case in which such an award cannot stand the arbitrator in this case purporting to construe an agreement between the union and a third party bound chelsea grant to the substantive terms of a fourth party's collective bargaining agreement and so your argument is that this different both outside and in the labor context manifest disregard for the law does that i take it that the way he did after hall meant best disregard for the law in this  judicial gloss to the things that are actually provided for in this statute in the federal arbitration act that's correct but there's no dispute in this case that that is the applicable standard with regard to what all term are procedural challenge so sure where we have both the procedural challenge the what the arbitrator did here was effectively to reinstate and modified to some extent at the two thousand and eight award which the union had abandoned which the union made no effort to enforce it seems to me t gloss actually highlights just how difficult house the mountain is that you have to climb can you explain to me what your c p l our argument is judge and it's a very straightforward argument is that under the c p l our which is incorporated in the industry wide agreement there is a one year time period for the enforcement of an arbitrary award and judicial of course that is correct but the effect of failing to enforce the award is that it cannot be reinstated or modified subsequently and that is the import of the board of managers of diplomat condominium case in the proto com case which we cite well what it means is if you don't move in the first year you can't get a court to bring court powers to enforce it but you certainly can sue on it as a contractor a kanji until the limitations period for that expires but the or let me ask you that question did you raise  of rights that the arbitrator previously or to kill a did under the two thousand and remit whether he had the authority to do so or not is another matter absolutely correct judge wesley but our argument was a subtly different argument which is that you simply can't go back and reinstate a preexisting arbitral word and that was precisely what the union was seeking to do here it's article seventy five also gave you a remedy to vacate that is iraq but well we did not file an independent motion to vacate just as the union did not file a motion to confirm head and i would know it was you had an award that was that was forcing an agreement i knew i would no parents radically judge leslie that we did raise that issue in the context of the ongoing proceedings on the two thousand and seven award in fact it turns out that there was actually an effort made in those proceedings to amend the petition to vacate to bring in the two thousand and award which the union oppose we made quite clear as we've believed all along th substantively improper under the very familiar h k puerto principle that in our that it is just in permissible to impose substantive terms i've got questions for the union on that but i just i just have a hard time this become such a tangled ball of yarn you've got you've got the earlier decision in which you're litigating whether you're responsible for what independence is tied to and crotty ultimately decides that the union it's a union representation drive in the aspect of that you're bound by disclosing your employees and check off and all that other stuff yeah and i do want and i hope the court will give me a little bit of time to get to the substantive argument but let me address your question that's up to  it's a two sided coin you've got a remedy to gin never i'm happy to acknowledge that the better course would have been to file an independent motion to vacate but let me try to untangle the ball of yarn and address what i think is your underlying concern here so it is certainly true that in the two thousand and seven proceedings which took several years to complete the question was whether we were bound at all to any terms and in particular the card check neutrality terms that would govern the recognition of the union critically in the course of those proceedings the union at every turn and we have several citations in the joint appendix that bear this out said effectively that the only terms that we were bound to work hard check in neutrality terms we were not bound to substantive terms in other words the union had every incentive in those proceedings not to argue that we were subject to substantive obligations and i think that that explains why the union did not seek to confirm now yeah sure we did not file an independent motion to vacate but the question before this court the question that was before the arbitrator is what is the effect of the failure to confirm when the union comes back many years later and says we are seeking effectively to enforce that earlier order the consequence of which is to hold us liable for what now turns out to be eleven million dollars eleven million dollars in retrospective damages and of course the union not only made no effort to confirm the award the union made no effort even at the time to quantify the amount of available damages and i think that just points up that what the union has done is abandon the award and under a clear unambiguous new york law that is the one thing you cannot do you cannot seek to come in after the fact and commence a new arbitration proceeding and the reason why that would be problematic is that it would blow up the one year limitations period because all the party would need to do is to commence a new arbitration period arbitration proceeding outside that time about that because i think quite frankly the straightest course for a reversal in this case is to say that what the arbitrator did here regardless of the ball of yarn in the procedural complexity was plainly substantively improper it was inconsistent with the principle that was articulated by the supreme court in which this court has really articulated a numerous occasions and in this court's own words it's the proposition that imposing a contract on the parties is quote a notion that has always been an anathema to the ag and i think with all due respect to the arbitrator the arbitrator really offered no even arguably plausible way around that principle nor did judge crotty in the decision under review judge  simply cited a decision from this court in the context of successorship where you have a successor employer who steps into the shoes of a prior employer and in that context it has been permitted to impose substantive terms but only up until the point of  as you might imagine judge eaton this is an issue that has come up numerous times in cases where you have parties they do not reach an agreement and where there is a claim by the union that the employer has engaged in bad faith in a footnote in our opening brief we cite b memos that said i set out the board's position as to the permissible remedies and as your honor will no doubt be aware there are a variety of things that the board or an arbitrator that has a authority can do such as setting not agreed because of the underlying principle of freedom of contract and i think that the union itself recognizes this in its brief when it says well you can attempt to read an impasse qualification into this awar d i don't think that that is even plausible that is obviously not the rationale that the impartial chairperson offered in his ruling on this but i think it just points up a recognition that imposing substantive terms is simply flatly impermissible as a matter of labor law and again regardless of how you construe the manifest disregard standard or in the context of this argument the standard of and are arbitra dispensing his own brand of industrial justice and exceeding his powers i think that where you have an arbitrator's action that is inconsistent with a governing supreme court case law that satisfies any standard and again i union in this case the opinion in order of judge crotty should be affirmed in all respects which elsie is doing here is to ask this court to second guess the arbitrator's interpretation his application in construction of a den them for which was before which was before him and under that and he used the usual tools of arbitral construction and reading referring to the practice referring to history purpose referring to the terms before him and what they're asking for you to do is to second guess that is to turn this case into round two round three round four of the arbitration under the precedent of this court in the supreme court that is the wrong standard and it should not be accept rather what judge crowdy did was view the arbitrator's twenty sixteen award in the proper light dictated by this court and find that each case he was interpret ing and applying the contract as he understood it under the usual principles and yet this is a party and up pointed out the question was what do we do now to reestablish good faith collective bargaining and then the question is in order to reestablish good faith collective bargaining as the arbitrator have the power to bind the employer to the contract that somebody else entered into not to a contract the arbitrator has the authority clearly under it then them for which gives him the followed so he has that authority completely independent of the board to do that but he's clearly he says it over and over again this is a penalty this is relief this is not a contract term because they have the ability to negotiate he i'm sorry i apologize go ahead finish what you want to say no i think you're going to lead into what i get excited you know and then all of a sudden i started asking and it makes me rooted times and i'm which leads me to ask i mean the problem the problem is is that there's no incentive for you to agree to anything because the path these penalties continue to or this interpretation of the arrangement and and i think there's a legitimate argument that you're making here about that this isn't this is season forcing of the he's visiting upon the hotel in chelsea it's its responsibilities for failing to have negotiated in good faith ok that's fair arbitrator can do that but to to address just jacobs concern the the arbitrator can't force a contract on people and the arbitrators war is that you're going to pay the wind gate rates until you reach a collective bargaining agreement it doesn't say or you reach an impasse there's no incentive for the union whatsoever to agree to anything and a unique and quite frankly act in bad faith and d why should we why should we read impasse into an award where the arbitrator was quite i think the arbiter had to know exactly what he was doing and he did he was he was imposing a penalty on  you've missed it absolutely thank you for the first the union has an incentive regardless of what anybody else says in the collective bargaining context the arbitrator said this is a penalty it is a penalty is a floor that was a stablished on the staten island hotel that was necessary because you have to start somewhere but start to begin collective bargaining but it contract is much more than a penalty in labor not only is it bilateral which is what just cruddy noted in his decision but it is the essence of what the union needs to obtain is a recognition that these parties are now joined in a cooperative effort maybe yingyang but it is an effort to create a working environment and most significantly it is acknowledgment that the voice of the workers in net environment as represented by their chosen pardoning agent is hurt chelsea so destroy that environment that collective bargaining completely since two thousand and seven on to this very day they have held on to it in the  in the eyes of the workers and then they held on to the fruits of that by not complying with the arbitrate just order to set the conditions back for good faith collective bargaining and i get there and i judge wesley posed first which is given this penalty what's the union's incentive to negotiate to it after all if he if the if if chelsea grand offer benefits and of the other advantages of the union and they've got it so i keep going back to the question that judge westley pose like i think ten minutes ago what is the union's incentive to bargain and isn't that exactly k porter prevents people from imposing over the rights of contract a collective bargaining agreement i tried i tried to address the union's incentive we do need i'm sorry i don't i'm sure you did i the in staten island hotel judge hears dealt with the situation very comparable to this one and she said that you have to have the floor and if you when choosing the floor you will she did impose the wage and hour terms that existed in somebody else's contract they have to have a floor one way or another don't choose the one of the party that has destroyed collective bargaining choose the one that is the most legitimate and most comparable which is what church cures did in staten island otherwise it's the one the level to begin the bargaining which is in this thing we should move from the terms of a contract although i suppose well it's such a penalty and the union fails to negotiate in good faith the penalty could be withdrawn because chelsea grant can go in and  and good faith that's certainly true that would that would be that would be one of the things chelsea grand could do and i can the difference i don't know why it would be unlikely any more than either alternative so the  the chelsea can go in and say the union is not bargaining in good faith the union can say the same thing chelsea can say we've bargain in good faith we are m p s we are we it's now time to stop the bike that gets us out of what you would call the contract because there's a difference now they have the ability all along all along we don't they don't have the ability if there's a contract and that's what the union wants a contract because you bound by to the contract now problem i think the thing is still troubles me so much is this that if you'd simply go on and confirm the award the two thousand and eight award we wouldn't have this huge problem of the fact that it doesn't say impasse in the award that would have been that would have been resolved i put so much time has gone by that now you've got this huge amount of money you say it's their fault they didn't comply they say that the arbitrator was way beyond his his authority and they raise issues about why you can't force it but if they're wrong about that ultimately they they they are one of their arguments is that it's on and it's completely under force mumbai lots of national labor relations a we're now here and there's a there's an award that doesn't say yes and it's now resulted in exposure of eleven million dollars now it may be they may deserve it or they may not deserve it but if it's violet erms would be work hours recall seniority rights these are critical in any in any collective bargaining relationship and those would be negotiated and benefits no our benefit our information from the win impose the penalty that's what we would say we contend and the fact that the arbitrator didn't specifically say the word impasse in the context in which he ruled that is in them plan is implied now we cited in our brief a number of court decisions of the circuit which say that if you've got alternative ways to read the arbitrator's decision you're going to try to use the one that is legitimate in this case i would say all the more so not to punish the innocent party but the but to hold the wrongdoer to the fruits of its if it's wrong wrongdoing here the arbitrator over and over and over again said i am trying to reestablish good faith collective bargaining that means bargaining to impasse in any labor arbitrator that's how the union understood it that's how they understand it because we still bargaining everybody understands that if they go if they see bargain in good faith then they can go to the arbitrator can go wherever they want to go and say we've got an impasse we're out of it but they have never bargained in good faith because they are holding fast to the fruit of that poison tree thank you your honors mr saltzman and i agree on one thing which is the starting point here is the contract it's the language in a denim for which governs the arbitrators powers here it can be found at page one twenty seven of the joint appendix and the principal basis for the arbitrator's award we had thought was a language that empowers the arbitrator to issue such remedial orders as are consistent with the standard and i think mr saltzman really offers very little by way of a defense of how this is consistent with an r p standards again the h k porter case is directly on point if anything this is a worse case than h k porter which involved but one contractual provision because if you take a look at page twenty eight of the joint appendix and you look at the arbitrators award the arbitrator was binding us to quote the current wages benefits and working conditions contained in the current wingate collective bargaining agreement that is all of the terms of the tw industry wide agreement the h k with his answer is yes relying on judge crotty opinion which i don't think can be governing here in other words the question is what did the arbitrator award and i think that the language on page twenty eight of the joint appendix is unambiguous and quite frankly if you take a look at the two thousand and twelve industry wide agreement it imposes a litany of conditions as you might expect a thirty five hour work week for non tipped employees restrictions on discipline a requirement that cuts have to be supplied with a uniform consisting of a jacket kept her chief and pants i mean it the list goes on and on we are subject to all of those obligations under the arbitrators award and i think regardless and for the permits the award of monetary or punitive damages to either part that argument was made at most likely in his brief but i'm happy to address it because precisely because of the language that i've just read this cannot be characterized as a mere award of damages to either party this operates prospectively it governs the employment of future employees as well as the employees who have been employed in the past there are a whole host of non monetary obligations and critically to the extent that there is money terry relief here those benefits run to the employees they do not run to a party the union and so i really don't know when if you would win where's the situation left that workers  have selected a union negotiations are going on are not going on for a decade is not going to be any floor it's not going to be any premise for negotiations  i don't know we're i mean i can't imagine where we would be if your arguments to kill it as they are would have prevented it jacobs let me ask let me tell you exactly what we are asking for we are asking for a reset and we're asking you to put us in the position that any employer is in aben issue when a union is recognized as your honor will be well aware because i know you've seen quite a few of these cases over the years what happens in that circumstance is the employees are of course subject to the existing preview union terms and conditions during the period of good faith bargaining and they are what they are not is subject to the terms of another hotel's collective bargaining agreement which is judge leslie has pointed out and which you have also pointed out obviously i poses a much higher floor and therefore provides a much lower incentive for the union to bargain in good faith and so all we're asking for is a reset to that ordinary preview union level of terms and conditions we bargain in good faith if we reach  are free of this retrospectively award of really crushing liability and i don't want to lose sight of the fact every year intransigent i don't think so and i think that that's in part because what you're really doing is  original decision but but i'm also deeply troubled by the failure of both sides to seek a clarification two thousand and word and its legitimacy we would have half the trouble in this case right now if we knew legal question whether we like it and trust me the legal question before this court is what effect does the unconfirmed award have in as i say the reason to penalizing or not really penalizing the union for that is because they had good tactical reasons not to say i wouldn't nation i don't want to do that from my perspective that i that that's my dilemma is just it's the fact that that how it's presented itself makes the issue harder in some ways to to  resolve i totally get that in just to finish my answer to jacobs this question what we're asking for here is twofold to be free of the equity of this massive retrospective monetary award and again to be put in the position that a party is ordinarily n when a union has been recognize we have a good faith bargaining obligation if we don't adhere to that good faith bargaining obligation going forward the union is allowed to seek the remedies that are prescribed under labor law but all that we are asking is to be able to negotiate from an appropriate baseline and not to be held to ransom by being subject to the terms of another hotel's collective bargaining agreement a practice by the arbitrator that i think the union effectively recognizes today is really without precedent i thank you thank you both you both very very well of a decision in the case of united states versus jenkins which will take that on submission and in the case of johnson versus turn bill we'll take it on submissions that's the last case on calendar