your honors it's our position that the arbitrators award in this manner should be vacated mr roy was employed by the buffalo philharmonic orchestra for fifteen years prior to his germination and two things in particular that we take umbrage with he not only violated the master contract between the opponent and the b p oh but he also referenced the settlement agreement that had been reach in a prior labor dispute with mr  the terms of that settlement agreement allowed mr roy to be reinstated and it explicitly said that the terms in the sigrid eamonn will not form the basis of any future litigation any grievance any action whatsoever that was ignored and the very very first paragraph of the arbitrator's decision he references the prior ruination and then at the and he devotes four entire pages to the june twenty ten incidents those had no relevance twenty eleven those issues what happened in eleven in twelve were what were before the air of a tree and he did consider the prior actions in as i consider and went verbatim through the the incidents that happened in eleven and twelve but our feeling is that he shouldn't not have use the prior incidents as a starting point and he clearly said the prior incidents are essential for an understanding and evaluation of the second term a nation that is counter to the for the first settlement agreement reach you not contending that the arbitrator reached his decision on the grounds of musical incompetence no he didn't your honor but he did consider the cab or says also true if i camp attends is not supposed to be considered musical competence that the congress would also be true musical competence should not be considered and most of the allegations were often insists was i i mean the basis wasn't it wasn't whether he was a skilled musician or not that was not the issue it's not whether he was incompetent it was whether he was performing as he should speaks to his musicality dear peer it is with a great deal of sadness that i feel compelled to write you to you concerning your musical performance and i think his performance his music that there were nine people there were also many witnesses who testified that they never saw any of the scan docked occur you understand this standard for an arbitrator's award the standard honor we understand that it's a very high standard in order to vacate but in this case we believe he exceeded his authority by violating the mr greenman by considering the prior settlement agreement which the the beyond the inquiry mark she took it to say that mr ward said he would not play b and the ng and mr royce in our position as he said he always plays above and beyond the in a he said she said there was a recording in notes that mr roy had made of that meeting yet when the opportunity came to introduce those into evidence their betrayed or did not them he reserved anot a writ or done it and offer was withdrawn i'm not sure if it was technically withdrawn i believe it was never offered again and what the union did at that point was try to get the information in through the witness but those the tape recording in his notes which were contemporaneous with the meeting which would have been very probative union acted in bad faith when it hit sought the deposit of the fifteen thousand dollars you can you point to any specific actions that the union took or did not take after your client said he wouldn't contribute the fifteen thousand that would lead the arbitrator to make an iranian decision well your honor in addition asking it we think that is a manifestation of bad faith requesting their client who they were exclusively to represent for payment but in addition and also i think show that it contributed to the arbitrator's making an erroneous decision the request for the fifteen thousand dollars when he refused when when when when he said when they w and my question is how did the what what what specific actions did the union take or not take as a consequence of not getting the fifteen thousand which can be said to have led the arbitrator to make an iranian decision well we filmed the representation could have been much more zealous that they could have separate the two and that was a consideration and therefore car paunch we feel there should be a new arbitration without any consideration of the twenty ten incidents i q thank you  please the court scott horton for buffalo for monica orchestra society your review of the district court's decision is the no vote but the review of the arbitrator's decision is not in light of the long established federal policy deference to the arbitration process where the parties to an arbitration agreement agree to go through that procedure especially in including in the labor context which pertains here where there was an agreement the collective bargaining agreement between the orchestra and the musicians union that represents its professional musicians in the orchestra that agreement included an arbitration provision it also separately included other procedures including a non renewal provision which were not involved here and did not pertain the argument based on the admission of evidence regarding musicianship is entirely based on language from that separate non renewal provision and both the union and the b readily agree that that had no bearing in this case and no relevance certainly the discussion of mr roy's musicianship was necessary to explain the facts related to his misconduct and inappropriate behavior in this case it was not a matter of whether he would or would not be invited back following the following season based on some decline in performance overall rather a specific argument an allegation that he was both playing deliberately poorly and being aggressive towards fellow orchestra members and management to gain standing in this case mr roy at the challenge not only the arbitration award but also the union's representation of him  was a fifteen day arbitration hearing spread over the course of more than a year which was followed by a hundred thirteen page brief being submitted on behalf of the union and ultimately the arbitrator issued a forty page single spaced decision up holding the terminations of mr roy's employment with the b p o none of mr roy's attacks on the arbitration process warrant the extreme remedy of upsetting that award the union did not as duty in representing him over those fifteen days and with a hundred plus page brief arguing many things in his favor and seeking that he be reinstated the fact that it was the arbitration  be reinstated is beyond this court discretion to overturn the mr roy would have to show specific and very extreme violations of the arbitrators authority to achieve that outcome in addition to the musicianship piece which i have already addressed he contested in his papers the submission a transcript sand or recordings regarding meetings with members of management as we explained in our papers the arbitrator left open the possibility that that evidence would come in but in the discussion of whether or not it would come in at the time it was first introduced it was explained both by the union's counsel that there were some aspects of the evidence that may not have been favorable and the council that there would be other testimony from the people who were present in those meetings that could pertain to the issues they were relevant to the case and ultimately the arbitrator noted in his decision  limited respect to which he felt that those does it those conversations had any relevance and there's nothing that could have been demonstrated differently with respect to the limited issue that the arbitrator allied on that the music director of the b authority to make those comments in reaching his ultimate decision which was premised on the authority granted to him by the parties collective bargaining agreement you can be serious morning focuses  papers to date and i was surprised to hear that argument this morning but again there is have it now there are myriad tactical reasons i'm sure why the union may have allowed that evidence to come in and they were certainly trying to present a full picture of mr roy and arguing in his behalf as evidence through their briefs and that's about the extent i can address that at this point so i would just conclude in saying that the district court properly recognized that the arbitrator had exercised his authority within his discretion and accordingly the decision appealed from should be affirm a principal oboist for the buffalo philharmonic orchestra and i think there's no dispute that he was a very talented musician he was terminated in two thousand and ten and at that time the union went to work to represent him and got him his position back with the b p oh in january of two thousand and eleven from january of two thousand and eleven until two thousand and twelve he continued to have issues that were similar to the issues from two thousand tends to charge and he was discharged by the employer again mr roy contends that the union breached its duty of fair representation as this court knows for more than fifty years of precedent in the law as well established that a union violates its duty of fair representation only if its behavior is arbitrary discriminatory or in bad faith and the courts have said that the unions actions have to be so far outside the wide range of reasonable notice as to be completely irrational and in this case obviously i think the record shows the unions actions on behalf of mr right were not irrational they depleted essentially all of their resources into attempting to get mr roy reinstated to his position the union spent fifteen days of hearing and wrote in a very extensive over one hundred page post here in brief on behalf of mr roy  wright was present throughout the arbitration and testified in his defense mr roy alleges that the union breached its day of fair representation by failing to object to evidence on musical performance the arbitrator allowed in that evidence because this was not a case whether mister roy was a properly performing as a musician with regard just to his performance but whether he was musically sabotaging is what the employer contend and whether he was engaged in misconduct and was he using his music performing abilities to sabotage the orchestra and you or your adversary contends aren't th that unions council should have been more aggressive more sterner with respect to the recordings and transcripts that he sought to admit yes with the recording there was poor quality of the recording and also that the recording didn't necessarily show mr roy in a favorable light and so the union made the decision not to reach introduce those tapes also as judge to  said very aptly in his decision that was whether or not they were introduced it really had no bearing on the finale of what the arbitrator decided because he found that that those whatever was in the he was also allege that mr roy by mr roy that the union failed to address the corruption of witnesses i think what he's referring to is if he's saying that the and maybe there was a perjury of certain witnesses  we never we cross examine the witnesses we were never able to determine that they actually perjured themselves and again the union did produce witnesses for mr roy and cross examine witnesses that the employer produced and that is not a sufficient claim to make an allegation of a duty a fair representation violation and finally with regard to bad faith the mr right contends that the union acted in bad faith and ask him to help pay for the defense of the arbitration and when he declined to do that the union continued representing him throughout the arbitrator has of course had no knowledge that the union asked him for that aid and it had no bearing on the arbitration decision and finally  if the claim as mr roy had to acknowledge when he amended his petition if the claim against the union fails for breach of j a fair representation then the the claim that the arbitration award should be overturned limited employment opportunities here terminations was reached by the arbitrator and in his long decision it's clear that he was weighing issues and you know he came to the conclusion that reinstatement would just be too difficult well we'll the difficult the problem or goes back to the fact that the filled her manic did not pursue any proactive measures to have everyone be in a cohesive orchestra and be in a cohesive work environment they completely dropped the ball on that and then for the air betrayed or two years later to come and say well you know reinstatement really wouldn't work here because there's there's too much animosity among the players it was kind of begging the question so we feel that the terminations was an extreme the arbitrator did recognize that and that's why he awarded mr roy your salary and money for health insurance there are no other questions thank you thank you for your arguments the court will reserve decision the five final three