not include the word did not issue a separate finding that the discharge was arbitrary as well as having been without just cause he found that it was without just cause he did not issue an express finding that it was arbitrary misconduct or dishonesty and both parties a disability that is not an issue in this case and the rd is whether short about i mean i'm curious about arbitration and maybe the way issues are framed in arbitration that perhaps is different from the way i think of them as being parties talked about a stipulated issue no we haven't and then they get agreement and they basically seem to agree that the question is whether the grave was just charged for just cause but it turns on article twenty seven and so you know if this were a typical trial court thing i'd say ok you're allowed to frame the issue how you want that's the way it was framed and so in our review we ask ourselves whether this fails michigan family services that craning framed question there's something about arbitration that's different from that understanding because you know i think there's nothing later in the arbitration where people change their minds about what's being framed and know there is nothing that lead in there british and alters that framing of that question ok so the arbitrator says this was a just cause and and then he's asked about the remedy right i mean this is that all there is well i mean theoretically one could argue that the company we'd you know any sort of claim to argue language back in twenty four team the northern district also had considered that question and had and had disregarded it and said that was not material i think the issue here with michigan probably resources though is that district court misconstrued that  the test which has to do with whether or not the dispute the dispute is properly before the court and i think we need this right as distinction between dispute in the framing of the issue the number of the dispute here is the termination the an arbitrator but the despite the fact of the discharge itself the essence of the grievances self was properly before this arbitrator and so what we are st contention is that the district court misconstrued michigan resources by conflating the issue of dispute versus the issue as it's framed so once we move past that question then you move and we believe that there and that i mean the reason the front issue was important to me is i'm having a hard time understanding how the arbitrator arguably construed article fifteen because he didn't construe or he or she had don't know the gender but so there was no construction of article fifteen so how is that doesn't michigan family services require you to point to the sections that people are debating and that's why i think the framing of some porton everybody said look at article twenty seven look at just cause he chose to do what they asked and then we would look at the michigan family services deferential review as to what was he was asked arbitrate you know i would have thought the only argument here yes i understand i was constrained fifteen i don't see anything in the opinion constrain fifteen there are other sections that issue here is well not not just management to discharge for just cause there's no actual right under the management rights section of the contract she used to discharge arbitrarily so there is one can argue there's a there's a in junction i'm not sure if i'm making up over there between those two sections there's also another section of the contract article five rules of conduct which says that if it if it has been found that this is under paragraph twenty two if it has been found that an article fifteen in article twenty seven into really whether arbitrariness is part of the case that's the way they present it and the arbitrator proceeds to issue a ruling that relies only on article twenty seven now my take on that one is as soft as the review is under michigan family services if the arbitrator didn't even bother to look at how article fifteen had bearing on the dispute i would have to say we can allow that he was asked to look at two things he looked at one that's not right that's not trying to something we're trying to have to try when you try you cite the right things it gets very deferential but if you don't even look at them as shown by the long opinion that seems problematic to me so that's that from the company's perspective that's what happened but the problem is the company didn't ask the arbitrator to do that the company said look at article twenty seven that's what that's what he did  apply michigan family services to that question that's i don't know tell me what i'm missing but that's how i see the case i think if i understand your you know and you're trying to figure out was this good or bad for me that's always a good question i can tell you're unsure and i'm not go opinion specifically when he describes the position of the union reiterate the union's position that the what that the discharge was arbitrary that actually appears in his opinion and he also knows with respect to the company's position at the company had maintained that it had treated all of the employees similar to try to me is that you may not have cited article fifteen but he was referring to the concept in article fifty yes exactly that and and i also think that the an unequivocal construction standard that the simply had to meet arguable in the very fact that we can stand here and point to sections which me may go back and forth on this question in our view renders this in arguable construction case that nonetheless that that it was in rationally inferrable from the from the decision itself and while the physical is not apply the same exact standard that the th circuit does and our view respectfully submit rationally inferrable is you know roughly synonymous with arguably construed thank you thank you the other side to part of that arbitration transcript and that was actually the st things that were on the record but before the parties got to that issue the very st thing that the johns manville representative said this and the record which are about it's in the record yes it's representative said just cause and whether it was whether the company acted arbitrarily the union's representative then said well that's really that's really a restriction on the arbitrators authority so the issue let's talk about just cause and what should be the remedy and it's our position that we didn't wait anything we didn't take at article fifteen out of the bit of analysis but let's let's grant that that conversation was had but as you pointed out it was before this have to look at article fifteen and john's manville in its post hearing brief so excited to article fifteen quoted article fifteen of the remedy relates to the suspension or something else out of the out right discharge that doesn't relate to whether in fact the arbitrator had the authority to set aside the company's decision well in this case it does because in article fifteen in which is the arbitrator's which limits the arbitrators authority the parties agreed that to expressly limit the arbitrators authority to modify the discipline the johns manville impose to article fifteen says that the parties is authorized to reversed john's mandals decision regarding discipline or discharge only if the arbitrator finds that jones mental acted arbitrarily and without just cause and what are fifteen says i but what i gather the record says the counsel for the company originally told the arbiter that they wanted the issue to be according to the contract and terminating mr hudson did the company act arbitrarily and without just cause or in violation of the collective bargaining agreement but then the union counsel objected to that and said we should use article twenty seven language and said in the stipulated issue was was the discharge of hudson for just cause if not what should the remedy that's what was submitted to the arbitrate i don't think that the that the union counsel objected to the issue of arbitrariness but what he said was that those two the arbitrator's jurisdiction over the remedy and that's not what's that's not that's just not what's in this sequence in the sequence is very clear i mean you've read it  have read it and i believe that the that article fifteen comes in when you're talking about the arctic the arbitrator had to make two separate determinations was there just cause for the discharge if not what's the remedy and when in formulating a remedy he is bound by article fifteen so he says is the matter properly before the arbitrator yes and yes and that's right after the statement about which of the remedy because you're you're saying you're now considering fifteen is limiting what power he had well erica fifteen does limit his but what the remedy may be but not according to the way this was framed for well i don't i don't think that the parties had would you when you when you ask yourself what was the arbitrator thinking with the written decision and not mentioning article fifteen i mean do you really think it was just flat out for god and he then told look at article fifteen article twenty seven dollars would it well he would i mean if you and the the parties post here in briefs are also in the record in the end the arbitrator was told to look at article fifteen happened i'm trying to say the what happened here seems to me to be described by what happened before and the what happened before has a look at article twenty seven a just cause and then what's the remedy for that there's no qualification at that point by the way we get to remedy remember all bets are off when it comes to the limits on article fifty well i i believe that that's why johns manville representative raised that issue at the outset so the article so the arbitrator was aware of it and again the arbitrator at once the transcript is produced the arbitrator then gets briefs from the parties and the and johns manville specifically quoted article fifteen in its post here in brief and the union argued the unfairness or arbitrary issue so i think that it was certainly before him and he had the language he had the contract john's mandell pointed out article fifteen johns manville indicated that he did have to find that the man's bill didn't well i believe it because if the arbitrator has to determine a remedy then we have to look at what how does the contract limit the arbitrators ability to determine a remedy and there's an express limitation  have a remedy if it i mean under the language of the collective bargaining agreement supposedly the the arbitrator didn't have jurisdiction to change the company's discharge of an employee unless it was both arbitrary and without just ca and that would article fifteen's yes so in order to alter even having found just cause in order to alter the remedy or the discipline that the company impose the arbitrator had to make a separate finding that the company acted arbitrarily and only under those circumstances without just cause and arbitrary was the arbitrator authorized to adjust the remedy the johns manville impose that's what the parties agreed to it's different from the typical just cause i would under to tell me how you react to this way of thinking in one sense i agree with part of your argument but in a kite pathetique a case where there are two provisions at issue the parties say you have to construe these two provisions to figure out the right answer and the arbitrator just never mentions one of them just doesn't mention doesn't even seem to be implied just seems not to be aware of it i think that would fail even the light review of michigan family services so i think that's kind of the essence of your claim am i allowed to however know here's the harder question in figuring out exactly what i'm measuring michigan family services test against why aren't i allowed to account for what the arbitrator thought he was being asked to do because if the case looks a lot less like the hypothetical i just gave you where he's very clearly told look at these two provisions there seems to be tempted tension between them as the parties think and you got to figure out what the meaning is of both together that's one case but this is one where there's no way you can say it was presented to him that clearly well just no way given this because if anything i would say he was told the opposite but even if i grant sure that there's some other language where it might have been confusing what was in play should my account for that when i'm applying the standard of review i would at st to have to address your argument that that's not what happened and you know the way these arbitrations work is you the arbitration hearing is where you get the facts in and you do your analysis and your argument in the post hearing brief and it's the post hearing brief again is in the record believe it's document ninety three and page forty three thousand nine hundred and thirteen in fourteen are the two post hearing briefs and johns manville did in fact direct the arbitrator to that language and did argue that there was no basis for finding we argued there was no just because he disagreed with that but also argued that there was no basis for finding that the terminations was arbitrary based upon the the facts of the case and we submit that based upon his findings of fact you cannot infer a finding of arbitrariness he did find a serious violation of a critical plant rule he found that the grievance endangered his own health and the health and safety of his coworkers by coming to work drunk and that he endangered his own health when he left work and drove himself home while well above the legal limit the order titers what happens if you're right it goes back to the arbitrator to give us an assessment of arbitrariness i don't think that there is a basis i think again that the  didn't make this finding he did it was it was critical to adjust them and they would even go back to look at article fifty and i would say it does not i think that the that the he is he didn't make the finding he didn't find that there was that the company acted arbitrarily so therefore he was without authority to adjust the remedy and so we believe that the award was properly vacated and as counsel noted there this is the nd case of this nature that both by judge carr and in the in the st case there was an issue about the the how the issue was framed and i believe in the st case this is not in the record the union asked that it be remanded and the judge said no it's now i mean he he had his opportunity to make a finding he didn't make the finding and therefore he didn't have the authority to thank the remedy so you're going to do the ones raising a kind of waiver point everybody's using waiver one way or we had the full hearing again the arguments were made and john's manville did is there it is in their case that it is their case that both are your point that it doesn't so much matter how the questions presented to the arbitrator at the beginning in terms of colloquy what really matters in terms of defining what's in front of the arbitrators the post hearing briefs that that issue why i am not aware of a case off the top of my head that that's so that addresses that issue but i again after the arbitrator earl prove it was in the in the post hearing briefs and also at the outset of the very beginning at the very beginning and i believe again i'm i'm i wasn't there but i believe that the parties deferred that to the remedy part because the end that the union representative said no that goes to the arbitrators jurisdiction and that's over the remedy so i believe it was subsumed in the nd part of the analysis which is whether there was just c to terminate the grievance and if not what shall be the remedy so this this question of whether you have separate findings and arbitrariness and just cause right that's that's a big part of the dispute dispute what's your take on the the reality that you know lawyers often will use two words where one will do or in this case three words where one will do so a pretty good example of that is the arbitrary and capricious standard of review right it's pretty hard to think of something arbitra capricious and vice versa i would say in this case it's but be very strange to say firing decision was arbitrary but had just cause it seems pretty odd to me but so that's an odd point so different things those of employment action it's arbitrary when that all is subsumed just cause it would but an employment action without just cause would not always be arbitrary it could be without just cause for a variety of reasons and the union argued in its post here in brief that the imposing this a different penalty based on a reasonable suspicion test then you imposed based upon a random test would unfair or arbitrary the arbitrator noted that in his just cause analysis but the reason he modified the penalty was not because the he found that the company acted arbitrarily he modified the penalty because of the grievance work history because that the grievance lack of active discipline and his nineteen years right right and right his the his his long history and his the arbitrator did not base his modification of the penalty on any difference in the in the two consequences based upon whether it's a reasonable suspicion test or a separately negotiated remedy for random drug testing and i suppose that your company's position would be that what the arbitrator imposes own brand of industrial justice we believe he did you know in any ordinary case arbitrators are free to formulate remedies have but the cases recognize that the parties can curtail that freedom and in this case the parties did the party said sort of i think what we're wrestling with as did your company though sort of wave its right to insist on a five they have arbitrariness in the way it agreed to frame the question presented  fifteen solves the problem yes we do we do believe so i mean that we specifically made that argument in the post hearing brief which is what the the arbitrators typically look at after they they get the there's typically a long didn't the arbitrator apparently didn't heed your post here and bring the well i mean it was decision he didn't even mention arbitrary we don't we don't you're correct he doesn't and that's the in response to your earlier question judge sutton about you know can we sort of infer or he just left the word i mean he didn't mention the word arbitrary once in his brief and he didn't in his opinion and he didn't he didn't analyze the opinion or modify the remedy in that way  he makes it look like he really botched it but then another sense if you read this colloquy at the beginning of the hearing you go now i can understand why you didn't mention it no one else did i mean i'm just i am just trying to look at it and i think it i f the parties had not argued the issue in their post hearing briefs i think it would be a maybe a better case but but they did and and squarely set that issue before the arbitrator and the arbitrator is bound by the contract in the end he only has the authority that the parties have agreed to give him less the part unless your client waive right and you know there was no i don't think there's anything in the record that shows that that the company waived that there was no knowing there in the right way at least before the post arbitration briefs what about the i'm sorry i didn't respond i mean i was trying to figure out how this happened and one theory it's actually my clerk so i thought it wasn't a bad point this looks like such an easy case that's why everyone was being casual about it in a shop trying to work and you test you're not everyone is saying let's read the whole c b s a and you know cross every t in dot every this question the beginning trying to figure out if there's something different i mean i don't think a district court judge would say if you frame it to me this way i don't think post here he briefs after i've listened through all this list of the witnesses was trying to decide the case during the hearing that the posting briefs allow you to shift the prism or shift the lens to looking so i think the average trial judge would say you gotta be kidding me that that may be true for the trying to figure out if arbitration has some custom that's different no there was no appeal of the last year to the extent that there's issue preclusion here because he decided that there was no appeal of that issue and it wasn't it wasn't raised in response to that to that case the same thing happened the last time the same scene the other cases where it almost routine and they go ok the questions just because that is that is if there is a standard and if and if you ask any arbitrator they probably tell you that's always the question  the but again the the contract itself which is what gives the arbitrator his authority in the st place places a limitation but he was authorized he was and in looking at the three  factors he did it's our position that he was authorized to review this dispute and to determine whether there was just cause but he had there was a nd step in order to modify the remedy he had to address that the it has to be presented to the arbitrator i mean you'd think the that would be made very clear that the question is is there just cause and means that there isn't you have to find that it's arbitrary that's correct and we believe that that's the argument that we made to the arbitrator again it was it was raised at the outset a then it was included in the post hearing brief arbitrator pay no attention to your brief that that may be that the arbitrator or the arbitrator decided that he didn't want to live within the  limitation on his authority we don't we don't know why the arbitrator did what he did but we do believe that he exceeded his authority and your point judge sutton that he could not have arguably been construing that provision of the contract because arbitration briefs that briefed the issue and included included a reference to article fifteen and you find that that reflected in into two areas of the of the  the arguments presumably would've written them down didn't know about it but that heightens the drama as to why in the analysis he doesn't refer to article fifteen so i guess i understand i understand  the sense hamas has hinted to bring that because they understand that as i said the primacy of the frame in question but i said i wanted to offer an alternative because i don't think that i think it's the framing issue is a very important it's not the only basis upon which this and citing article fifteen and twenty seven that's recited where they in their briefs saying and here's the distinction between arbitrariness on the one hand and just cause on the other that was joined in the post here in briefs that debate i can't i'm i'm sorry sir i can't see the question