please the court good morning i'm steve thompson to represent retyped and the former united transportation union the issue in this case is whether or not the trial court followed this court's mandate from the last appeal to restrict its judicial review soley to the integrity of the arbitral process or whether or not it veered from that duty to decide the case on factual merits due to its own personal predilections unfortunately from the entire record of this matter the court did the latter in reviewing and preparing for this i conclude that my former partner mr pope comprehensive detailed the case and meticulously cited to the record i'm not going to do that now what i would like to do is focus on a number of finite issues and answer your questions we know that the co had substantial dispute with this court's mandate from the last appeal there were a number of statements that the court made throughout the trial which indicated a substantial disagreement and i don't need to really go through this again were aware of that yes although it wouldn't be the first judge maybe that i think what's varr more important your honor is that that disagreement commingled with this court fundamental personal and professional views about the use of alcohol in transportation produced this result and those views and the comments the court made are important to understand what happened here the court that excerpt a record thirty three interrupted mr shaw marjorie his testimony mr shulman or was that the general chairman for the union to indicate quote i did twenty seven years of air crash litigation flight safety and flight safety is paramount and no pilot in command can have any other drugs or alcohol in their system when they operate an airplane do you understand that the point of that question makes no sense in the context of a railroad case more importantly how does a man who has done twenty seven years of aircraft litigation get the federal aviation rule on alcohol use in flight factually so wrong he wasn't somebody the judge wasn't wasn't fooling anybody he didn't and he wasn't trying to dissuade i think demonstrates that that's the world that the court wants a world where there is complete safety because there is no no alcohol use in transportation in focus on a question that concerns me and by the way i have no knowledge personally about operating aircraft but i did used to work for the santa fe river road in the summer when i was in college yes so i know the difference between a conductor in an engineer yesterday and a fireman here's my question there was a neutral in the arbitration panel this was back before it went to the prior panel and she was  about the other quote violation yes and someone told her unless you straighten up your act you'll know you'll never citizen neutrally again that was mr boulder of the railroad part of them and so she recused she said she stepped down right that is correct and the new neutral was selected yes mr peterson is there any evidence that mr peterson was told of that there is mr shaw mark testified at trial and in his declaration which was part of is part of the record that he pointed that out i'm trying to figure out as sort of relatedly how they're how it's possible there's a factual dispute about whether the corey red letter was or whether or not their first time around or not there is arias eckard not there is the issue your honor and dispute about whether it was there or not as a part of the record and my answer is is specific ok the investigation is held by company officers on the property and they are handling and deciding the investigation that is the on property and that's an answer to my question is there not a confined record that is created for the hearing that is a confined record and it is the on property anneli then it goes between the higher members of the union and the railroad back and forth they they meet they they essentially try and resolve the issue when that fails the record is closed and then it goes to arbitration the answer to your question is it was only then when mr boulder filed his submission to the zimmerman board and then later on to the peterson board that the current letter first no it is not not the it in fact if you will look at the submittals that we put in the record you will find that the currie letter doesn't appear in the property handling which mr s both to the zimmerman board and to the peterson board i tried tracing this through both ways and i'm and i'll hear from opposing counsel minute about whether there's a dispute about the first letter the crispin letter doesn't talk about the the level of alcohol that was detected first time around correct it doesn't say anything but that there was a positive finding on a certain date that's it it's hard for me to understand how the zimmerman could have drafted the what we're going to call the settlement agreement the way she did it if she'd had had the corey let that seems to be a pretty tough sell that would be true except for this one point museum in observe the rule because the letter wasn't part of the on property handling and so she didn't consider it which is what she should have done even mr peterson in his deposition agrees that that is in fact the process i think you're reading the record the same way i am so then it then it proceeded it seems to me to this  somewhat confounding situation where my understanding is ms mint took the position that because her opinion wouldn't have been accepted by one of the party she then ought to recuse herself and not issue opinion i frankly don't understand that at all but anyway that's not why we're here today i don't  and then a neutral neutral and skipping over the process of getting permission to pay for the second arbitration but then a new neutral was surfaced in the in the form of mr peterson that's correct and there was a do over that's correct and she decided to recuse herself they i mean that is what happened and i that is what it is that is what it is but the problem that was procured by fraud well ok but there but it's happened and so what would what's the next appropriate  to the issue in this case because the most important document introduced in this case was one that the district court never even addressed or mentioned in its finding of record three twenty four which is her national mediation board activity report nine weeks before the threat is issued mrs zimmerman in her own hand under criminal penalties for false reporting reports to the m b that she decided the case and she codes it as a her decision specifically  dispute about what happened there what the motivations were and i'll grant you all of that and as i said i've used the word confounding i think it's confounding but then all of that went to the district court in your argument is that the district court exceeded the scope of its duties i should say  that right yes because he found that she was credible that she would have ruled in favor of the river in order to do so the district court had to disregard the activity report in order to relink your favorite we have to decide that his credibility finding was  to rule in my favor i think what you need to find is that he committed clear air in terms of not considering and explaining that very contradictory evidence coupled together with the undisputed testimony that the two people who supposedly made this settlement agreement that she's testified about vehemently disagree that that ever happened there's two ways it seems to me recusal one is that she did absolutely the right thing and entirely inappropriate suggestion or direction you you'll never have lunch in this town again sort of thing and that she stepped down and then the process had a new neutral in that went to conclusion the other way to look at it is that the intimidation if you will affected her ultimate decision whether she would have in a panel situation ruled for or against your client correct and it sounds like the district court found the former not the latter that's what happened the issue is this we have to take a look at and remember that this court has said that when a district court wholesale adopts one side's findings of fact and confused conclusions of law you are entitled to apply close scrutiny to that case and that's exactly what happened here forty of the forty eight  fact offered by the railroad were taken up by the railroad virtually unaffected and in addition to that the district court in supplied can a finding of fact number eight which is critical in this case neither side offered it and the court in finding of fact number eight adopted the curry letter that wasn't an issue at that level at all that was not an issue that was not a factual finding that had anything to do with the arbitral process the integrity of the process itself what it had to do was with the court's predilection to find the underlying facts in a fashion that's squared with it's you who world unfortunately that's retained in order to run popularity contests every time they make a decision they risk being finding somebody who can't accept their award and is violently opposed t the morning or honors for bonanza for a way there's two competing stories the plaintiff's story is extortion the railroad story is this was a failed attempt to impose a settlement but it's not this court's job at this point decide which of those stories is correct judge layton has already done that the only question you have before you is whether the he didn't review the merits he didn't say i'm ruling this way because i find that mr kite was an alcoholic who doesn't belong in the cab of a locomotive he didn't say that what he said was i conclude that dr my friend is in the back of the train not the front i respectfully disagree your honor the conductor and the engineer both sit in the cab of a locomotive in modern railroad operations who runs who operates the train the engineer the engineer operates the train at the direction of the conductor the conductor is in charge of the operation could we talk about the cory letter that was the issue of the cory letter had been considered absolutely your honor and here's why the crew letter was not before i'm assuming it was before mr peterson her i don't know i guess will say a settlement agreement the draft unsigned draft yes makes sense right because she says there really isn't sufficient evidence of the first violation like that is it undisputed that she didn't have the courier letter correct ok that's very helpful to me because i last read of that in the briefing going to figure that it is a little confusing so so if that's the case and there's a do over why is it fair to consider the theory that because before mr peterson the evidence jury standard what's considered he can consider is defined by the public law board agreement and what the public law board agreement says in paragraph is that the parties may submit evidence in data in support of their positions what the railroad did was added the curry letter to the packet of information that went before the public won't work now mr peterson did it yes without objection without objection and so here's the sinister view from the opposing side which of course you're way ahead of us and i'm sure but anyway just bear with me isn't the sinister view that they got into the first arbitration agreement that the railroad realized it goofed and didn't include the evidence it really needed to prove the first a violation didn't have the courage cory letter because the question letter was didn't cut it issued you know there was a blow up over that when one arbitrator bachmann said hey there you don't you haven't really proved the first violation right in the course of that conflict there was  she thinks that's improper and at the do over the railroad then inserts the kauri letter and his argument is that that's a corrupt process that we wards very unprofessional behavior by the railroad representative what is your response please my answer to that is none of that is supported by this record well the very letter wasn't there first time around and we think that's fair game the whole clue to the whole predicate is that there was corruption he doesn't even get to challenging peterson without showing that there was corruption of the candidates argument about corruption and it is a very big letter was a do over that was unfair that's his argument yes but my but the point is that there has to have been corruption in the first instance for this to be a bond hearing me that's his argument that by not including the courier letter first just around then the blowup then the threat then right that's his argument about a clean up process as opposed to saying gee we blew it we can only really prove the one violation and what i'm saying is there wasn't corruption in the zimmerman board and she testified it wasn't corrupt she said look i was not threatened her testimony is what mr boulder said is i have not agreed to this and in the absence of agreements very well established but she did do what i described as confounding so that's that's just me talking but it's in my scorecard that it is really hard for me to understand that an arbitrator who doesn't feel threatened would say gee i'm going to recuse myself because otherwise i'm going to rule against one party and that party won't accept the result after all that party doesn't have to accept a result so what do i make of that well look i think the railroad wishes that ms imerman had just had the guts to go ahead and rule on the merits because what she says is again i'll read from her her testimony there was definitely enough evidence in the record to conclude that the carrier had minutes burdened by proving the substantial evidence of both the first and second offense and how do i make sense of what she wrote in  settlement agreement which is that they really didn't have enough and you just told me there wasn't they didn't have the current letter because what she was relying on was the cressman letter and she said i had enough evidence but i had to have a fig leaf and so that here in response to the plaintiff's reliance on this administrative form that that he's made a big deal out of she says the parties again this is from her testimony the parties agreed essentially to find the record procedurally defective she saying the parties wanted me to this is what i thought the parties wanted me to do this is how they were going to write it to avoid damage to the overriding principle this idea that you don't reinstate two time offenders so she says this was a fig leaf this was an idea that we could use to cover up the fact that this is a settlement and she says the way the settlement was put together it would have been on the end in the system as a partially sustained result of course she's not going to code it as a settlement if you're trying to disguise the fact that it's a settlement she talked about it on the forms of settlement so she was trying to get to a point where both she could get mr kite back to work because she thought that being a stuff would be ok with that as long as it wasn't obvious that the railroad was agreeing to put this two time alcoholic back to work that's what she was trying to accomplish now the why think that she did this perfectly correct no of course not but given that her testimony is i wasn't threatened i didn't recuse myself because of is exactly correct she said again ridge in her testimony i could have reviewed the record and issued an impartial result but i did not believe that the parties would accept it as such and i asked her that's the sole reason  that's the only reason now you may think that she made a mistake that this was confounding that this was silly that she shouldn't have done this but it's not because she was threatened it's not because mr bowles rather strong armed her and said  appreciate sure he says this would create an emotional reaction and i don't know how i could make the point any clearer than if i had said railroads don't use arbitrators who put two time offenders back to work and what this court strongest argument is that all of it comes back to the district court being able to eyeball these people and make credibility absolutely your honor this is a credibility case plaintiff's case comes down to this mr boulder is a liar arbiter and his intent because mr boulder it specifically testified i never said anything to mr man that i intended as a threat i never meant in any way to suggest that the railroad wouldn't use are going forward and in fact we did use are going forward in that where there was a testimony that was not deemed credible was in connection with mr shaw mire and this concerns the the second the do what we've been calling the do over and i think the court asked my colleague mr thompson about this their argument all along has been mr shaw meyer told mr peterson at the outset of that hearing about the extortion about the threat about the fact that this was improper mr peterson testified unequivocally that mr shaw myers a liar he says he didn't say own word about this until months after the fact supplemental excerpts of pages ninety four and one hundred one so that's why the district court made its findings on this point forty seven and forty eight in the findings of fact that mr shaw meyer did not raise this about bias fraud error before the administrative panel issues its ruling you can't just wait and see if you win before you make that kind of complaint  let me say just a couple things about the comments too tightly some are your clients position is th do over if you will the second hearing went forward appropriately that's what the mandate told the district court to do and that's what it did yes sir that is all correct let me just say a couple of words about opportunity in this case he allowed the depositions of the arbitrators he didn't hide every single one of my objections he really went out of his well and likes people who great their papers and sometimes they get angry when we give them an f when they think they deserved a yes or we've been around the horn ok well but the the the ultimate point here is that all we're talking about is plausibility you've got a record where  imerman supports the railroad story mr boulder supports the railroad story in this trip peterson supports the railroad story the only things that go their way are mr shaw meyers testimony and this administrative form which  i think i have a minute left so let me very quickly the waiver argument that is just made is not is not in accordance with the law under the railway labor act i commend to you the decision that we so i did which is to unite transportation universe to see s x it's at two thousand and six westlaw three zero one nine eighty one one in our brief the court there said that congress having established a two year period a statute of limitations for the railway labor act review a court should not impose a shorter statute of limitations based on waiver because that's in accord with the purposes of the r l a which is to encourage the parties who don't like each other have completely different views and are compelled by the rules to by the law to get along that they have to try and work this out and that takes time a waiver argument is complete  kind of judicial i'm sorry statutory application secondly the issue of this idea that somehow these zimmerman coded this thing surreptitiously to give cover to the railroad there is absolutely not a single shred of evidence to support that that is an entire fabric career aided by the railroad after the fact first energy used in final we definitely have your argument in mind i think the briefing is quite extensive from both of you and your citations to the record so we really do appreciate that thank you our case just argued the united transportation union versus burlington northern is submitted and we're joined from the morning