when your honour's me flees the court my name is randall bihar i'm in council for a local union one twenty one seat with me today is the council vice president who helped in the go sheet contract that we're here for local union president kevin burner and agree even ed marquard who has been reinstated with thirty eight years and you already would have liked to be in here today but he's on call in the yakama region i'd like to reserve five minutes for rebuttal why are we here today the district court made several mistakes and i know it's to know the review because the summary judgment but i think it helps to understand why we're here in the mistakes that they made neither party asked for remained of the opinion of the kind that was reminded we asked for email and on a small issue on  calculation of damages there was no dispute or facts on the vast majority of the issue of damages but the district court granted some ridged partial summary judgment to the union on an issue we didn't even ask for for remained on a clarification of the opinion regarding a matter that wouldn't shouldn't have even been before the district court article five of the contract why do i say that because two decisions of this court in june yes sarka decision in piner roofing which we cited in supplemental afforded by letter in june and last week made it clear that when an employer is going to challenge the jurisdiction of an arbitrator to decide a certain issue there are several ways they can do that to preserve that issue before the court they can just refuse to go into court or to go to arbitration and on force the union to go in for a motion to compel they can take the affirmative action of coming to the district court for a declaratory judgment or at the beginning of arbitration what they could have done in this case has said to the arbitrator must arbitrator if you find that the article seven contractual procedure were quire ments for a written reminder and to written warnings underly by facts that are similar to or the same type as those that support your discharge if you find that we did that and you find that there was just cause for some discipline your jurisdiction ends and not said anything more why they said that and said but we want to preserve that issue and just deal with the merits arguably they would have pursued or preserve the issue for the district court and you to consider counsel forgive me for interrupting but your time is ticking and i have to believe that opposing counsel is going to get up and say we we could not have they raised it at page twenty nine of the post here and he said every train ever saw it they're going to take issue as we all know the arbitrator said no fair but they always had an aunt's house interfering and didn't read it right right he did not read it but they did raise the issue of page twenty nine of their post hearing brief and the arbitrator in his party what did they say to raise the issue they they cited article five section four a the contract and said you know we  maybe misunderstood of whether they anticipated our sark or not that's the law the circuit that if you if you if you if you submit the issue to the arbitrator to decide then you don't review the  within the scope of his authority but he reminded on an entirely different issue and that is whether the judge well the arbitrator actually applied article five and how and the real issue about what he said was the district judge said yes you gargle five you ghar article seven and you've got the contract submission and i can't make heads or tails out of how that was resolved by the our arbitrator and i want to go back for that reason ok now isn't that what the judge did that's what he did but i think he was wrong in doing it and here's why first of all neither side asked for that remember more importantly there's a difference between an ambiguity in the arbitration order and in the  account of there's also a difference between blanks in order holes in order findings that need not be made and analysis that especially as explicit explicitly is made that that you can't square with the collective bargaining agreement there there are no holes in the order the order is clear the order itself which is really if this is a pill that really you're not in session that you want us to look at the order divorced from the reasoning pardon if it really your position that you want us to look at the order divorced from the reasoning the order in fact says in it i reviewed the post hearing briefs and in page two of the award in the appendix that help us if we've got some some some express reason that we can't square with  a i think you can square it and i've cited that in the in my briefs you can square article five but in order to understand it's an implicit finding granted but you can to understand the implicit finding regarding article five you have to understand the explicit finding in the opinion on how the arbitrator saw article six and article seven in the play article six i have a question about article six a couple  this ok so article six has a provision it just seems striking to me that article six and this will be i think important for opposing counsel as well talks about layoffs and discipline it does not talk about terminations and article seven talks about layoffs term thank you and if you if now if you think about when you're considering this think about if you struck the words in that first sentence for just cause if you struck those words nothing would change in the employer's interpretation of the agreement but that's not how the arbitrator interpreted article six the r arbitrator first interpreted article seven said that they met the numerosity requirements of initiate they had just cause to provide him they'd provided him due process under the just cause they complied with article seven for just cause and then he went on mediately to say but referring back to article six they also have to meet the generally recognized standards of just cause in article six what are the standards in articles six he says it is a work i know what he said but where do i find him in articles six man is something that is decades or arbitration decisions that is very familiar in the federal out for by saying those words of just because the arbitrator could do anything he wants to do as a relates to just cause no not anything you can do he applied the generally recognize standards that negotiators have known for decades but more importantly you have a contract here i think that the just district court found was a problem for you and for the satisfied and you're saying that somehow article six changes article seven and he didn't explain how that so he doesn't have to explain everything well i understand i think that's true but when you go against the direct word of clause i think you do have to explain why you're doing it but not if you've waived your right on it particularly when the contract says the right of the employer to issue a discharge sh determined solely by the provisions of this article seven and shall not be modified by any other part of this agreement let me i'm having trouble understanding why it's not appropriate to ask arbitrator go back and explain because of this first of all ambiguity in the opinion is different than an ambiguity in the order the courts and supreme court have made very clear and even the district court set i can interpret that to uphold the award or i can interpret  and the supreme court and this court has made clear if you can interpret it if you find a way that is you know we know and what if we can't what if we have not been able to connect the dots as in a way to uphold that what please focus on that sure another way is that the third counterclaim said that aside from all of that the submission agreement gave independent authority or help to eliminate what the contract met just a court never touched that never decided it it dismissed so effectively in granting and demoing partial summary judgment it dismiss the third counter claim effectively so there is regardless of whether they waived the right which they did so i'm just trying to get at a way that i can give we are exceptionally deferential to arbitrator's decision so i'm trying looking for a way that i can say that this decision is consistent do you have a way this because the arbitrator interpreted the language in article six as making article seven supplementary not restricting a concept of just cause i mean when you understand cept that right but that also makes article five when we first to seven that the obligations there are only supplementary article six the way the arbitrator interpreted it still is the basic requirement of just cause  hold on hold on you believe that the employer thought as by the provisions of articles evans section one no because it seems to me your argument is that there are many provisions of articles of a section one one they may have done it as a relates to initiate is an area action they may have done it as a relates to due process they may have done it as to terminating or ours gives me waivers and all of notices but that's it but there's another provision is that what you're telling me to call someone section one d there's also a requirement not only that they issue not at least one written reminder and two written warnings but those and he explicitly lease out he doesn't cite this he leaves it out that those warnings are reminders have to be based on the same type of facts as though the discharge was based on and earlier in his ward in his opinion he cited the kinds of warnings and reminders that have been justified they were not arguably they were not the kind now that part only if you say he didn't have authority to address the just cause i do think there it's a difference that that should be remanded only in that regards good morning ma'am please the court counsel my name is cammie smith i'm from the spokane law firm of winston and shay i represent cascade natural gas also here with me today from boise is cascades human resources director who was involved also in arbitration so the court has pinpointed the issues before it and you're correct arbitration awards are usually given deference if they are interpretations of the c b a or constructions of the a but that is not what we have here arbitration decisions are not bullet proof the arbitrator is still bound by the c b a and when the arbitrator goes beyond that authority and dispenses his own brand of industrial justice then the court steps in to say you have made a finding that is completely contrary to the collective bargaining agreement and that's what we have here the c v a is clear and unambiguous with regard to article five six and seven your position of physics does incorporate terminations even though it only speaks of layoff and discipline is that right correct all right so well i disagree on that saw take it  that well but article seven of course speaks of the layoff separately and differently than term nation so it's not consistent but if you're not disagreeing i'll take that is the c p a have a definition section that we just weren't given  i believe it does but it doesn't define just cause ok and if it doesn't have any definitions that would affect today's ruling when i look at this finding by the arbitrator that article your team prevailed on article seven section one d i am hard pressed to figure out how that could be what's your best shot in your briefing you just keep saying i don't mean that disparagingly but i think your argument your main argument is that  the arbitrator knew our position and found that we satisfied carette right but of course to that disciplinary grounds were found not proven that would have matched up with the prior disciplinary record and the two that were how can we match those up and say they were those weapons similar character the where is the position that we don't go that far well i don't think you have to go that far i think if you look at article seven you're then getting to the merits of what the arbitrator decided not procedure but the arbitrator decided we had met article seven and the reason he decided that and i believe he used words that said we had mentored and we had coach and we had disciplined numerous times over the prior couple years of employment and we had the arbitrator found we had given three written reminders to written warnings or vice versa but and that those were consistent with the fact that he was not properly carrying out the function of his job and problem is trying to read the arbitrator's decision as closely as i can so i ask you the same question i asked your opponent he says that the cascade just cause to initiate the disciplinary action he says that there is just cause and that they provided him due process and they say that he complied with article seven section one d as a relates to if you will read reminders and all of that worry gets too is he says but but there was no just cause as i understand the decision there is no just cause as relates that there's this other thing substantive just cause that opposing counsel says we get from that prior case law right so just cause is a standard that outlined by arbitrators but sometimes you look at cases  seven element this arbitrator found three elements of just cause the first was whether that there was evidence of the employees misconduct of a policy or procedure that would be substantive and he did find there was misconduct in violation of a policy and procedure the second element was whether the employer complied with investigation due process as well as step disciplined and who found that we did and then the final element was problem is all of that said what he actually gets to if it seems to me that he's suggesting that in the term a nation there was no just cause right so that's what he's saying that's his third element his third element is is the discipline reasonable but that element also incur includes wasn't handed out in a discriminatory manner and he could have maybe found that it was discriminatory this person of a protected class was being disciplined this one wasn't but he didn't go there he didn't find that there were no facts and that this find it reasonable force and he found it was disproportionate but the the parties have contracted according to article five that he doesn't get to decide that well but just a minute according t side fine to severe or modify except where they've not satisfied the provisions thereof he's saying you didn't satisfy the provisions there are you didn't satisfy the provisions of that but when i get to determine it in as determination he's saying you didn't satisfy that's what he says what he actually doesn't say that what article five says is that he has no authority to set aside contrary says it follows that has a relates to initiation as a relates to due process as early as two seven one but he did not do it as a relates to says he he says in in the record page forty one that cascade complied with the procedural requirement under agreement article seven consisting of four written reminders and three written warnings but that's all procedural again that's right where judge and a christian was is just exactly but what he's saying is but they didn't comply with the as to the substantive if you will part of due cause just cause and therefore i'm not bound by for a because i'm finding the employers not satisfied this and therefore i can set aside can find too severe i can modify and i'm doing it in fact when he says his language is not very good on this and i did get a chance to talk to counsel about this he'd start starring about penalties which adds to your argument if he did just follow this line that i am adopting here or pressing forward i don't think i've had anything to say but he starts talking about penalties there's nothing in here about penalties i think your honor if you look at the textile workers first as americans thread case that's a fourth circuit case from nine hundred sixty one and what that says is just cause to discipline is enough to prove agreement which says as long as you've got just cause to discipline you've got just cause to terminate there's nothing in here that says that there's nothing in this agreement that says that i believe article five an article six together say that article that would you read me the language i looked for it article six says the right to layoff and discipline it doesn't substantiate terminations and the reason it doesn't substantiate terminations is because the parties have argue agreed that an arbitrator doesn't have the decision to say hey i think you should have done this but instead you terminated it says just cause to talk to discipline and we know that term a nation is a form of discipline and cascade has the ultimate authority to decide what they're going to do could they have given him another written reprimand sure could they have suspended him sure but they didn't have to because they had already done those things in the past and according to or modify there's only one way to get there and that's to suggest that you didn't have the just cause which you reference is article six and he says it applies to article seven you didn't have the just cause t terminate that's what he's saying that's what the language says and so therefore at that point i'm saying to myself and i'm lost because i have no authority i may not have written the way he did i may not say it the way he did i don't even think he was on point but i can get in there if i can find some way to say he has interpretating this agreement to make this decision i'm stark i am forced the fact that he specific you used the word modify in both the opinion and the order shows a boy disregard for article five and a blatant overstep did if he didn't if you found just no just cause to terminate i agree but my worry is he didn't find just cause to terminate he found just cause to do a lot of stuff but he didn't find just cause question you submitted to him what was he supposed to do we didn't actually submit it he presented to us we did sign it you're right because he turned it was this is one of the questions he would ask questions right he he was to decide if our term nation was supported by just cause because we did terminate him a could have said was the discipline supported by just cause but we didn't discipline him we terminated him and if he would have found that the employee did not engage in the conduct at all or there was no policy or procedure that limited his conduct then he could have said no just cause frankly it seems to me that the first question did they have just cause to terminate no well he would never have reached the second question otherwise right he never would have reached the second question otherwise correct me on ask you though what is the impact of the  created a conflict between the submission and article five and or your server what's your it looks like there why do you not think that's right i don't believe we have and in our post here in brief outlined an arbitration element of just cause and it didn't include the reasonable ness the case that we cited didn't include reasonable and those include council this would be helpful to me right where you focusing on just cause as defined in a rticle seven we focus on just cause as defined by some arbitration opinions and see if you go to the arbitration opinions is that's his whole position that there's this you know six and seven together come to this  procedural cause and then that they that the arbitrator was still free to do this other subset of the subs to just that arbitrator was free to do was to determine was there a policy it was that policy violated by the conduct of the employee that substantive and he has the right to decide he could have said this employee didn't even do what you say he did that would be substantive there wasn't just cause to even discipline him or terminate him and when we did the submission agreement knowing that the first two elements of just cause our substitute of and that is is there a policy in place did the employee violate that policy did cascade natural gas proceed drily and substantively do an adequate investigation and then finally the element that we have contracted he doesn't have the right to decide is whether or not the the discipline is reasonable we say we have the and we cascade have the entire authority to decide what type of discipline as long as he the arbitrator finds that the employee engaged in the conduct we proceed really did everything we needed to do the arbitrator doesn't have the authority to a defamation of just cause in oracle six it says there's a definition of just cause in article seven but i'm curious where that definition is as seen by your side of the case in article seven article seven i don't believe defines just cause but what it does define is the parameters cascade has to operate within to to give progressive discipline before they terminate the procedural hoops you have to jump through her aren't they correct and and the arbitrator found that we had given enough written reprimands enough written warnings enough coaching over the course of time and then at that point his authority stops we would ask this court to reverse the district court to reverse the arbitrator and fine in favor of cascade thank you thank you c i draw your attention to excerpts of the record page two hundred four which is part of the cascade post hearing brief to the arbitrator in which they lay out that cascade they say they met their burden to show just cause for terminations they list the four items and i will say i will read the fourth item that they say cascade applied the discipline in a reasonable and even handed manner now the arbitra or found they did not apply it in a reasonable manner they found discharge was he found it was not reasonable he decided the issue that they put to him they said they recognize as contained in section seven it is as defined inside since a very good question the way the arbitrator interpreted it was that just cause the concept of just cause well known in labor law has all of these various parts to it in addition to what's in that concept of just cause are the additional contractual notice requirement or not written warning and written reminder requirements and seven those are obligations on top of the all of those that are under just cause they argue that it limits just cause in article six that's not how the arbitrator interpret it whether he was right or whether he is wrong is not you we'll go on to the next case the last case on the calendar please seventeen deaths three five five five seven and seventeen dash three five five seven nine stewart versus