single typo in a single document cosco was being ordered to reinstate work with a driver who was caught on tape dealing cocaine to coworkers inside a costco store you must be reversed three in well if you're going to be if you're going to begin with a public policy then what is your explicit well defined and dominant policy that militates against this award thank your honor there are in fact  least three different ones that profit concerns converge to provide the public policy basis on which to reverse the work st they're really just a minute just a minute you know that the contract to agreement allows the reinstatement with certain conditions drive the collective bargaining agreement that yes your honor and so then what i mean i'm trying to figure out what policy explicit well of course the criminal laws the state and federal which make mccain dealing a felony punishable by twenty years there's also cosco as an employer under osha and  in safety sensitive positions we have in the record be it statements from the two employees who said that he was the drug but they were damaged they weren't him say safety sensitive positions they were not themselves but they didn't report that said mr diaz and was the drug dealer for the warehouse that is in the statement so costco does not know for sure whether he also drink dealt drugs to those who are in his safety sensitive position but we do know that he was known as the drug dealer for the warehouse because it was prevented from finding out more because mr diaz refused to cooperate in the investigation so the risk remains that he certainly did but we do not have anything in the two major offenses the refusal to cooperate and the possession of drugs and based on that the arbitrator refused to let in any of the evidence concerning the seriousness of the conduct so the arbitrator did not hear well just a minute what were you talking about the seriousness of the conduct i thought the arbitrator wouldn't let in any of his past record he would not let in any information regarding this offense and that's been confirmed by the declaration from m know that these employees reported that he had cocaine five times within the space of the previous two months he did not know that mr diaz left the premises in the middle of the investigation over the instruction of the warehouse manager when he heard the cops were coming and he did not know that the two employees who cooperated in this investigation were placed on investigatory suspensions pending further investigation which if you think about it makes very little sense to its members who often shop with their children in tow and they expect the warehouse to be a safe and dry pre placed where employees on heavy machinery are not dealing drugs to those in their vicinity so we contend  specter and so if i may continue on of the public policy point i know the union analogizes to a lot of the drug use cases such as eastern and this go in the so cal gas case but i did want to highlight there are some vastly different concerns when it comes to drug deal one there is no similar repeat there with patient concern with respect to drug dealing as there is with drug use there is no law that says that we have a public interest in rehabilitating drug dealers so we have a more serious offen there's many times when you find that the rehabilitation of the drug dealer is really what nia what is needed because he's only a dealer because of his use that nathan run but again here we don't have evidence so using and nor do we have well over them but just a minute just a minute the thing that worries me is that i want to know what the public policy explicit well defined that dumb and that is is there an explicit well defined and dominant policy that says anybody who deals with drugs is automatically out of work then you're right and we don't believe that is there any dominant policy explicit well defined or dominant which says that double jeopardy could not apply in this situation especially when it's a part of the normal label practice we don't believe that the policy has to be so explicit as to make the arbitration or itself well i understand but wonder why when i see the words explicit well defined and dominant it doesn't seem to me that it's just simply what the company would like to do it's got to be a policy out there in the if you will in in the labor pol labor market that goes on forever you know it's something coworker and then being caught on video doing so and then denying that he did so and even beyond the public policy concerns you are again the arbitrator hear this evidence and on top of that we believe that the the process in this case was so unfair to cosco based on the the arbitrators repeated acts party contacts with the union is offering of money that comes go hadn't even authorized directly dealing with the group and in a way that the union itself said was extraordinary look myself in the mirror you know what that statement needs it could very well mean the arbitrator couldn't get behind his own ruling that he felt he had conducted the proceedings improperly we simply don't know and followed by of course at the very good morning your honour's this is fern steiner on behalf of teamsters local five hundred and forty two we did address in our briefing the arguments that were made but i will focus for a moment on the public policy and the fact that judge who is honorable judge smith has mentioned that you have to find an explicit well defined and dominant policy and that that policy specifically against the relief ordered by the arbitrator that's what our supreme court said in the w r grace that case and in evaluating a public policy argument the court must focus on the award itself not as costco has asked you to do here the behavior or conduct of the party in question and that was your southern california g believe so that you couldn't or shouldn't force a contract that requires a lawyer to pay back an employee who was selling cocaine on the premises where the public goes and where other employees may be engaged in and in the safety sense of the conduct and public policy  doesn't have anything to do with enforcing such an agreement is that your argument we don't believe the public policy anywhere says that you have to fire mr d take back some when dealing core dealing in drugs on the premises which are open to the public and which other employees if not him are engaged in safety sensitive activity yada just as in the eastern they had to take back a truck driver who tested positive which is an equal violation of the law and that there are drug user out in the public driving trucks and doing things question that he did that but there's no question but there's no evidence that in fact anyone was using drugs including him while after the state there was evidence that they were purchasing it from him they even they've been around these they've been show these plastic baggies and i believe one of them may have thrown it away i don't remember exactly i mean i mean my impression was that he was actually he was air and and that wouldn't even apply in a criminal case about industrial common was relating to double jeopardy i mean this is you know sense to me if he had been charged if he had been arrested and the criminal complaint that been filed nothing with the double jeopardy clause even in a criminal case would not have prevented his subsequent indictment and conviction because he was originally elves and being the action of a grand jury and that's exactly what happened here what do you disagree with that that the that's the criminal that's the actual application of the double jeopardy clause not something that was pulled from thin air but it but is but in fact judge i'm not sure i mean i'm going to let her answer it didn't seem to me that there were in this case he was held it pending that's the question that with the double jeopardy that they are the traitor had to decide if you don't answer counsel what do you ask i think that's the important question thank you your honor it is an important question we've never disputed that cosco could have suspended mr diaz pending investigation which the st circuit says does not apply to the same extent as in the criminal context they they suspended him for three days ending a decision that the leave the vice president as to what the final disposition would be with respect him and i think they told him that i don't see why they need due process violation here which is you know this concept of double jeopardy is really a part of this so called industrial common  honor i understand you disagree with our position but they issued a disciplinary suspension of three days they had an option under the collective bargaining agreement on whether it was a mistake i pointed to the in our briefing mr aureole was of knowledge meant that they argued it was a clerical error that they were planning to suspend him the vice president all of that w argued the evidence that was not flawed in or allowed in was the evidence related to drug dealing because that wasn't the issue when the due process case the only issue before the arbitrator was whether double jeopardy attached process violations the underlying crime or they don't say you can apply double jeopardy miranda rights all of those rights only in certain cases where it isn't a bad crime or  this court to overrule the arbitrators determination of what that contract language means based on the arguments that have been made to this court and were made to him and he came to a conclusion and the deference sudden needs to be given here we understand there is the exception for public policy and we don't believe that's been met and absent their meeting that exception this court cannot substitute its judgment for the arbitrator's ruling in that case we move to i'm sorry just korma did you have the question and i noticed in the st circuit which is one of the leading cases senses that the industrial double jeopardy does not apply in the initial discipline is imposed with the understanding that it may not be fine that's i agree that's what exact that's exactly what happened here exactly was that it was he was being suspended pending the decision of the vice president he was not told that your honor he was read the words on that constructive is opposed to a reasoned decision and only sent the award to one side you think that's not possible bargain for all the part both parties bargained for him to hear the case and submitted the case and the only issue o the contract under the federal arbitration act under the california arbitration act and we went through each of those and set forth our arguments as to that there was no basis to vacate under any of those authorities that he was really announcing its decision and saying that he was resigning because he couldn't look him self in the mirror this strikes me and along with his other conduct in this case as to leave bizarre including the notion of having an ex parte conversations without notice to the other side with your client i mean his whole conduct here strikes me as being totally bizarre i don't know that i'm just jeopardy rule doesn't appear anywhere in the agreement as i wrote here on are it's a concept of just cause which does appear in the collective bargaining agreement but he didn't say that he said double jeopardy and that was the issue submitted to him by the parties as we demonstrated in the document and that notion that this was just cause can stand even under a deferential was not as strict as the double jeopardy clause in the double jeopardy clause when the prevented there are analogous circumstances in being charged formally with a with a crime but he wasn't charged formally even  they could do except for the word discipline it was i well that's important well it may or may not be but the actual aside from this calling it discipline was that he was suspended for three days pending a review by the vice president which may have been required by the collective bargaining agreement and then he was terminated so if they had said this is investigated instead of disciplinary nothing would have changed except the label yes that was in front of the arbitrator whether the kind that would jeopardy applies yes that's exactly right and whether that concept of double jeopardy could be brought up in the clause for sufficient and proper  sort nor the plain language of the collective bargaining agreement limits the scope of his authority and that so in other words if we take your argument that it's plain language and it isn't there then we buy it but that's the problem and that's the problem got with this case so that you know it all in the last what deference i'm i'm obligated to give to the arbitrator you picked arbitration i didn't you picked your share the arbitrators i didn't they picked their share then they always had them somebody picked this other guy and i can sit here and try to hear claims of factual or legal or by the arbitrator as it  communications what was the prejudice the prejudice your honor is he was i mean you said you said and i quote we are left to sought to surmise who those communications may have been fluids whether it enforced the arbitrator's decision and the guess as to their impact doesn't that say there is no prejudice absolutely that's what i read that directly from your left to surmise that the communication might have been with order left or surmise whether they influenced the arbitrator's decision and were left to guess the impact that says or might not be any prejudice of all the record shows that the arbitrator acted in a neutral fashion in this case we contend that that is more than enough to show prejudice because short of getting inside the average readers has there is no other way to interpret this pattern of conduct