three minutes of my time for about gratitude to thank you in field before we get to the merits i cannot help but observing and if i'm wrong i i ask you please to do to correct me it sure looks to me like the company reneged on a promise to retirees you i think your honor there's a very much a difference of opinion about that question and whether that memorandum of agreement was meant to represent anything about any sort of continuing obligation to provide retirees benefits for what did they have before the em away what did these retirees before the memory of agreement read before the m or so retired people who retired before march of two thousand and fifteen before january one of twenty seventeen were entitled to essentially a benefit program that was similar to the benefits that active employees had in the two thousand and twelve thirteen fourteen type period so it changed what they had previously received replacing it with this monthly stipend if you will there were there was definitely a change effective january and seventeen yes you know just so it's very similar to the changes that have occurred in other circumstances one good example is the tac it versus m and g polymers case involving similar changes to retiree medical benefits supreme court addressed although in that case it was the elimination of retiring medical benefits not just changes to the benefits that were being provided so would you you would agree that the m away as it stands is essentially a free parties or at a so the import of your response to my question is that these folks have no rights they have no rights under arbitration and they then have no rights were breach of contract th mean that they can't get it trish well regardless of whether they would be in arbitration or in court certainly our position is that the medical benefits that they had were medical benefits that they were provided pursuant to the terms of the plan and those plan terms could be changed by the company pursuant to the plan terms and that they don't have any contractual right to ongoing retiree medical benefits either during the term of the contract or lifetime benefits so they have no remedy well the  that if if they're not receiving the same benefits now that they were receiving before and they can't get to arbitration then do they have a remedy available  i assuming one usually does under an agreement that has been breached it in any event of could we move to jurisdiction because that seems to be a question here and i'm curious as to what you consider the administrative closure language to mean is it was included in this order law i would say your honor that the fact that the court administratively close the matter is irrelevant to the question of whether there was a final judgment or not certainly we're not saying that the existence of an administrative closure means that the case is over in and of itself but if you look through the answer is nothing or other there was nothing left for the district court to do for the precise reason that it granted the relief on the count and to use the term telt i think is a little bit of a misnomer it certainly was styled as that way in the complaint but it's not a separate cause of action for arbitration and so once the district court compelled arbitration and dismissed the other counts without prejudice that was the end of the case and just directing the courts the roman haas case was a very similar circumstance in that case where the court granted summary judgment on account to compel arbitration and then the court said that the other counts were deemed moot as a result of the fact that the court compelled arbitration so what do you make of the  that involved the party settling in front of the district court judge and what the judge did in that case was administrative leave close the matter without ruling on any of the substantive counts in the complaint and saying basically the parties came to me and said they settled the case  and the terms of the settlement in that case required them to go through some additional proceedings but i think that's the main distinction in that between that case and this one here at the court did dismiss those substantive counts and did so without prejudice if i could analogize on the jurisdiction point if the if the tables had been reversed and if plaintiffs had filed their two counts and their position was the dispute was not arbiter bl and we had come in and said wait a second this case is supposed to be arbitrated once the court granted the motion to compel arbitration and dismissed those other two counts without prejudice just like it actually did they'd be no doubt that the court had jurisdiction over that and the standards for granting a motion to compel arbitration or the same standards that govern the rule twelve analysis or the rule fifty two and three had not been dismissed then i think it would the court would not have jurisdiction although i point you again to the roman haas case where the second count actually wasn't dismissed but the court said effectively it was rendered moot by the fact that the court compelled arbitration we go back to this memorandum of understanding what is it if it's not a contract i think we would say your honor that is the process that leads to the negotiation and finalization of a collective bargaining every night i don't i certainly don't want to it is a tentative memorandum of agreement and there are no doubt will be a dispute we would say back in the district court about whether that agreement is a binding and enforceable contract or not in the same way that any other contract in any other papers that might be exchange it is a contract but it doesn't govern the retiree benefits because under the collective bargaining agreement employees are defined in such a way as to not include the retirees who are the complainant here well is not an issue before the court and not an issue that we've briefed at all in the context of this appeal this is just about the question of arbitrarily the collective bargaining agreement is very clear that it only requires arbitration of grievances that relate to that agreement capital a are reflected in the memorandum of agreement were copied verbatim into the collective bargaining agreement but there is no provision in the collective bargaining agreement that says that the memorandum of agreement is actually incorporated into the collective bargaining agreement and if you look further and as we explained in our brief there are other side agreements between the parties is that the collective bargaining agreement says explicit say explicitly are incorporated into that collective bargaining agreement presentable tardiness and and late shift policies are expressly incorporated into the collective bargaining agreement the memorandum of agreement is not incorporated by reference into the collective bargaining agreement and the memorandum of agreement provisions that plaintiff's point to regarding retiring medical benefits one requires that an employee bring the grievance in the first instance i think that's what the contract requires the union is able to bring arbitration over a grievance later in the steps but it requires an employee to initiate that process your honor the district court relied on section nineteen of the collective bargaining agreement as the basis for compelling arbitration because section one thousand which is reflected in the joint appendix at page two thirty six refers to quote medical insurance close quote plan and says that the employees covered by this agreement also participate in the following plans medical insurance that doesn't incorporate the memorandum of agreement into the collective bargaining agreement and can't be the basis for arbitration for at least two reasons the first is the medical insurance plan that applies to employees has nothing to do with these retirees that plan is not the plan that these retirees participated in it's not the plan that these retirees want to participate it's just like saying that some other completely unrelated plan applies to a completely separate and different group of individuals and that's the second part of the argument section one thousand says employees participate in the medical insurance plan doesn't say anything about what retirees do or do not participate in so is it your view of this memorandum of agreement it can't unless it was incorporated into the collective bargaining agreement it can be changed unilaterally by management and  people affected really have no remedy your honor what i would say is that memorandum of agreement whether that's a binding and effective contract would be for the district court to consider on remained but certainly it's our position that the retiring medical language that is in that memorandum of agreement does not any contractual obligations on the company to provide those benefits for any specific duration or for life so that i leave here interest yes that the terms of this memorandum agreement can be changed unilaterally the terms of the tentative memorandum of agreement that were not incorporated into the collective bargaining agreement are not binding contractual obligations to rest or was the purpose of this stuff i think it's part of the negotiation process for the parties that leads to the collective bargaining agreement which reflects their actual agreement and understanding so it's only real efficacy in your view as to the extent that portions of it are incorporated into the c v it either copied into the c v a verbatim or incorporated into the c p a but again that's an issue that the district court didn't consider and that we're not asking you all to consider today because the question is just about whether that dispute is are the trouble or not and regardless of whether that is a binding enforceable contract or not it clearly does not fall within the counsel table today i'd like to begin by stating that this court's twenty thirteen decision in fremont freeman versus pittsburgh last work its controls the outcome here this court lacks jurisdiction to consider this appeal such that we in fact do have a public your station there's a big difference between what happened and what the court did in previous church wall and what the court did here again whi submit your honor that the operative difference there really isn't an operative difference on what happened here is the district court ordered that the dispute be arbitrat and order the case administrative leave closed and ordered that the parties complete a t r and the day following the order appealed from the district court issued another order laying out further details of the  process the district court was doing here what the court in freeman called homonym lot of all acting as a backstop to the arbitration process if in the course of putting together the arbitration process the parties had encountered a difficulty we could have gone to the district court to resolve that on in fact we ended up having some difficulties which we managed to work out amongst ourselves without having to go to the district court but the point is the district court was acting as a backstop the district court absolutely still had things to do first there was this eighty odd process that was set to occur a month after the order appealed from and second the district court was there to act as a backstop to arbitration the fact that this is the exact nature of the claim is different i don't think makes a difference to the fact that the judge was there to act as that backs up d d r process run its course it did but what does it mean to be a backstop to arbitration i'm not sure i've heard that phrase so once once you're said to arbitration it's the arbitrator's job too finally decide the case though i think that that is true in many circumstances i believe that the phrase backstopped arbitration appears in freeman the issue  that we had that might have required the intervention of district court was we actually hasn't difficulties identifying the procedure for picking the arbitrator and so that would be an example of something that you can't have district judge orders a party to arbitrate who never consented to arbitrate it's your position that that party that never consented to arbitrary can be said to arbitration have an award entered against it in this six i believe that's the import of the federal law to a point if the import then is even more than just that they're not going to have an opportunity ever to appeal question is you're right i think that's right on i also want to point out before moving on to the substance here that this court in n y s associates versus cohen pointed out that involves the employer refuses to arbitrate under arbitration agreements and so i'm routinely and just for court filing actions under three hundred one seeking to compel arbitrate afterward without a demand for arbitration having made or was the demand for tradition previously made here oh no there were certainly a demand for arbitration made here there was a grievance filed that grievance was filed by a union employee an employee under the you know working in the collective cup at all the punitive class or the employees under the c v s it's not right i don't think that that is the issue here the issue is whether the so be the arbitration language and i'll just read it is the issue if the c p a applies only to employees i think that's right but i usually have guys even if they're not employees it applies to them as retirees so if i could just read the arbitration language it says should differences arise between the company and the union or its members as to interpretation or application of compliance with the provisions of this agreement then will have this credence in arbitration language so the union which certainly has an interest in holding the company to its bargain promises and i should note that the union alleged in its complaint and the company never brought forth facts to dispute that a is a final and binding agreement with respect to the benefits promises set forth there in benefits promises which relate to he benefits issues that appear nowhere in the c v a other than that listing of benefit plans and software retirees members are retirees members no they're not but the union has the ability to bring a grievance and the first step in the grievance procedure is an employee fills out a grievance form has a conversation with his or her supervisor that happened here there's been no allegation that it didn't if there were such an allegation that would be an issue of procedural arbiter ability which the supreme court has said time and time again is an issue for resolution by the arbitrator just as retiree's are not members retirees or not employees correct that's correct i mean absolutely doesn't the arbitration procedure that f employee filed a grievance on behalf of the who filed a grievance and i don't have the the gentleman's name in front of me but it appears on the grievance which is attached to the complaint so the person in front of the complaint was an employee he was not a retiree yes ron so he's doing on behalf of retirees he was doing it on behalf of the union which has an interest in enforcing the promises that the employer man's otherwise what we collective bargaining for so what's what is this memorandum of agreement what what is it a contract absolutely your honor it's as a practical matter it is a document that is prepared at the close of negotiations the c d a hasn't been printed yet on this was dated of a three days before the c v it was printed well it's dated about three days before the cd is effective the actual printing robbing a c p a much later on and it's prepared by the company and out the grievance or the arbitration process why in the course of negotiations and in the open the product would there not be a line together some we get a handle on your honor i i certainly would not have designed it this way if i were designing it from scratch but what has happened is over the course of decades as elucidated someone in our complaint is this has been a process there's been this other plans language that references plans that are provided by the employer in the c v a in the twenty fifteen c v a in section one thousand and then the substance of the deal about the benefits matters referred to climb isn't it to say that we recognize some things in the memorandum were incorporated in the c b s way but trust us other things that weren't incorporated should be there to how  do how do we how do we do that well your honor the i think the key issue here is this is a fight over the meaning of section one thousand a part of the c d a this dispute requires interpret ing section one thousand so we got it how does that language i think you're right because of language help you with the language say why does it cause you to prevail well it's certainly helps us get to arbitration because it's a part of the agreement and what's the the employees covered by this agreement also covered by the following plans medical insurance employees and who are the employees the how do we know these are cops and these retirees are employees well i sound like for language in the contractual document that states why retiree's or some kind of subset were analog to an employee while you're i think that this gets back to the merits of the question is whether this is meant to include more tyreese mr kronk this tricky over here here's what's troubling you and i i i probably in my very first panel is charged with doing were charged with figuring out what several contractual documents mean and whether or not as retirees the a is not as clear as it should be by suggesting that you know it's not the way you would have them please understand that when i say this i'm not suggesting that this occurred and i'm not even using it for purposes of a  simply to suggest we're to ask you to tell me why i'm wrong that why this panel couldn't conclude that in the negotiation process the give and take that's involve definition of employees and that maybe it sounds what i'm hearing from your in your brief and it argument is two possible things that that might support you one is that we've always started this way this is the way these things work don't pay too much attention to the fact that we incorporated some things into the c v a and the things that other things we wanted to incorporate we didn't scrivener's error i don't know where maybe the other thing you're arguing  right thank you so the test that has been referred to in some of the briefing related to side agreements the scope test the collateral test those look at side agreements as a whole and not they don't dissect the side agreements so the extent that the em away remarkably easy for the lawyers drafting the c v a to say every dispute that may arise under the memory and move agreement shall be arbitrary all i can say to that your honor is it's absolutely true that that would have been easy but the law of the shot as we look at the one thousand nine hundred three arbitration involving the same plan language an arbitrator twenty years ago said that you can use this other plans language to look at and always to look at agreements that were reached at negotiations and embodied in any benefit brochures that don't appear in the c b s so i would respectfully on and we had a large number of allegations detailing back in the complaint you know i wish that this were a cleaner set of circumstances i'm sure we would not have reached this juncture if it had  revolt thank you your honors just a couple of points the first just a point of clarification or error on my part that tentative agreement language that word doesn't appear in the title of it it appears in the first person line right there right and yes the following sets forth the terms of the tentative agreement because i misspoke i want to clarify that i think you hit the nail on the head your honour's when you were talking about section one thousand which talks about the employees are covered by certain plans and medical insurance i already said the medical insurance plan is not the plan that is at issue in this case it's not the plan that these employer that these retirees are in it's not the plan that these are two retirees are seeking is completely different but to your question just hardiman the term employee is defined in this collective bargaining agreement it's a joint appendix page to all five and it covers all people who were employed at the plant as of the date of this agreement and thereafter what does not include these people who retired bring the claim on behalf of the retirees and that would that would be absorbed in the in this in the grievance procedure so what i would say your honor is if they intended for grievances to be brought on behalf of retirees they would included retirees in that as well but regardless of whether an employee who also is a member of the union could file a grievance about something that doesn't actually impact that employee at all but affects others that's just one indication of the fact that retirees one weren't meant to be covered the better indication is the definition of employee that i pointed to earlier which says that these and retirees don't meet the definition of employee for purposes of the section one thousand provision about who's entitle to medical benefits and who isn't i would also point out your honour's there are plenty of memorandum of agreements that are incorporated in explicitly into the collective bargaining agreement that are attached to the back of it as part of that document strong i don't think well first there's no evidence or allegation of reliance what there is is that the parties did agree in one thousand nine hundred three actually not these parties it was a different local union agreed to arbitrate a different dispute and what i would say your honour's it's ninety three ninety eight i believe it was one thousand nine hundred three that the arbitration occurred there were other grievances that were filed and look there are certainly occasions in which parties might agree to arbitrate a dispute even if it's not required under the terms of their contract certainly the federal arbitration act would encourage parties to arbitrate disputes that they agree to arbitrate even if they're not required under the terms of some preexisting contract but that can't mean that a court can then compel arbitration of some other dispute that is not arbitrary all under the express who have had their expectations as to the receipt of medical insurance so i think the individuals you're talking about your honor those who are tired before the collective bargaining agreement get my understanding is that it's about forty two or so individuals are we thank both counsel of all counsel for their helpful arguments and what is that a very troublesome case for a number of reasons i will take