we don't even have a collective bargaining agreement in this case and how why did the district court then find that there was i think an agreement i think the district court found there was an agreement by virtue of taking bootstrapping the so called arbitrators fact findings into creating an agreement those arbitrators fact finding should never have been considered at all you didn't participate in the argument the other way but i can understand what i don't understand is why he didn't file within thirty days thereafter a motion to vacate that i don't know your honor but what i can say is that when the arbitrator's proceeding entirely without jurisdiction that thirty day time limit is not a political the the thirty day time limit would apply to defenses otherwise valid arbitration or you have an agreement the arbitrator has jurisdiction but but it in one sense you have a don't you want to make it very clear that i'm not agreeing that what this arbitrator did was allowable  let alone correct as to me even if it were allowed your honor let me let me say this if i were representing williams at that time i probably would have immediately filed a motion to vacate if not filed to enjoin the arbitration beforehand but that's not required you know if we had if williams wanted to maintain now that ward should be vacated because the arbitrator didn't reschedule the hearing the when williams was unable to make it or because there was some perceived bias on the part of the arbitrator or things that our defenses under the federal arbitration act run under the equivalent under the sure you would have to move your collective bargain agreement with what the district court did is is went and looked at these facts that were you know so called facts that were found by the arbitrator and basically said ok well there's this so called course of conduct here that there's even though there's not the same signature you know the same agreement with two signatures on it there's you know this so called course of conduct but the course of conduct was never offered into evidence there was never any evidence of that what was offered into evidence was the arbitrator's  this big long agreement that was tendered to the court i'm not even sure it's in the right order all the pages are there and then we have this letter sent by mr williams  ering an alternative agreement and that agreement it's  agreement along with a cover letter tendering it to the to the union and you know it says you know we're not we would propose this agreement we also have the affidavit of mr williams saying you know saying there's i'm still not sure which with the agreement as you're referring ok let me i thought there was a job site agreement  i don't think it would be to employ him on a single site no there was never anything that would be as i think it's called the operators agreement there's a i think it may be called operators agreement there it's signed by  arthur williams at the bottom right and talks about the york hospital project correct correct correct it's and it seems to indicate that we're going to follow essentially what we've done in the signed by mr williams and it and it says the wage and benefit rates will be those listed in the quote normal agreement talked about the normal range and the boom pay rates it it if there is i soon there is a normal agreement that's actually not part of the record i don't think there's any i think if this were the agreement i think one could figure out maybe what the yemeni warm agreement would be the elephant the room the collective bargaining agreement perhaps but that just addresses right what it doesn't address and what's in this so called operators agreement no where there's two big things missing one is acceptance by the union either express or implied there's no signature there's no indication in the union came into court originally saying that the course of conduct argument there and say but the person did show up timely union i mean there's williams isn't always hire and certainly williams does not always hired union members i mean just you have a union person who worked on this project there was i don't think there's any dispute the mr luers is a member of the union and that he worked on this project  but what's what's what's missing from this agreement it's wesley or buying corp in any way is an arbitration clause we may  provision is clearly not you know up as we have there is an arbitration provision in the collective bargaining agreement there is an arbitration provision in the so called collective bargaining agreement this this massive document that williams agreement with local number seventy seven that agreement isn't in the record anyway and so there's no evidence anywhere that the agreement with local seventy seven includes an arbitration  arbitrator can make a finding of fact that a collective bargaining agreement was entered into is that correct i think if there is no dispute as to in this chicken and egg analysis looks at the findings of fact made by the arbitrator which you claim the didn't have the thirty to do but accept those now there's a couple of supreme court decisions mcdonald's and alexander which seem to talk about you can look in at an arbitrator's decision and you're permitted to rely on findings of fact in an arbitrator's decision but those those cases are not so they're not on the issue of whether there is an arbitration clause there are they would have to be on the issue of i mean this arbitrator had no authority to act in in any way because of the lack of an arbitration clause and you also it would have another argument here even if the operator could act that what happened here was the district court acting on hearsay carette you yes the these facts in the arbitration agreement would never properly presented to the court in any way there was no for example there was no affidavit of mr luers or the union president don't we did not do not yes we said you have to authenticate it if you concede well we didn't just we didn't deny that the arbitration award was in fact the piece of paper signed by the arbitrator back i think  testimony that was apparently not transcribed and simply made you know stated these facts and now the court is relying on them the arbitrator wasn't sworn there was not even a sworn court reporter there was no affidavit there was no nothing and so those facts were not before the court as they should have been for a motion for summary judgment why don't we have you back on remote oh thank you on the other side here good morning morning or honors may please the court my name is samuel steer i represent the union in the funds in this case first of all do you agree that way into this permitted to argue that the board must be vacated because there was no agreement arbitra yes that goes to the to the courts subject matter jurisdiction it goes to the arbitrator's jurisdiction office center services says you must suit have vacate within thirty days and one percent of services has a place in this case because some of the underlying issues in the case that go to the merits have been waived by by way ups because they never sued to vacate but as to the existence of  merits and that that would be a problem but as to whether you had the arbitrator had the authority to act in the first place right you or you have the jurisdiction or you don't right and whether you move to vacate or not appears to be irrelevant i think that's right i think i don't know that there's any case well cap and i guess probably says that the supreme court case but i don't know if there's any case in i'm aware of a few district court cases that have reached that conclusion but i'm willing to say that yes i think that an employer or a party has the right to come into court and say you can't sue me to enforce this award because there was never an agreement to arbitrate ok could you could you address the whether to the extent the arbitrators findings of fact were in admissible hearsay yes i can this case is going on for many years we got to the point of filing a motion for summary judgment in response to williams motion to dismiss there was a rule sixteen conference with the judge with the court the district court said i think we should do some more discovery do we need to do that to produce a full record both parties agreed no we don't need that because indeed further discovery would have been entirely to put get it what the u arbitration issue and on summary judgment and well could make an argument no matter what they say whether discovery would be duplicative still your burden to show there was no genuine issue of material fact that's are going back to the hearsay it would appear that the arbitrators well iran or mine my understanding and in fact there are actually here there probably is double hearsay because the decision also includes statements about the union's representatives testimony i have two things to say about that's right but i have two things to say about it number one my understanding of rule fifty six is that as a moving product i needed only to identify facts that i said were undisputed and then it is up to the other side to show that there is actually a dispute about some material fact that actually exists so then it is william's burden to present some evidence that would show that there is some dispute and whims didn't do that other than the half a sentence in his affidavit where he said we did not otherwise agree to arbitrate the case that's my first response my my second response your honor is that indeed there were as evidence because we have that remember we have that other agreement that he signed the point is let's go back to can you address whether the but it was agreed by the parties that they would be admissible to show their true well i think the record was complete for purposes of ruling on the motion and i think that the quote is discovery would have been duplicative of the testimony presented to the i would trade or close quote so there's no need to present additional testimony but that doesn't mean that they have the other side has waived the hearsay claim with respect to the findings of fact made by the arbitra not just saying that if they are admissible there's really no need to have anything further we're just gilding the lily well and i think that having anything else would have killed  dispose of the case upon the motions filed that's that's number one number two there was other evidence there is a written signed agreement it is the project agreement that was signed by mr williams so that the court is clear on what it is really ruling on this is a case now seven years old they will work in question was done in two thousand and three and would have gone into two thousand and four williams  during that whole time period never said we don't have a contract that's a fact that williams cannot repeat and the district court pointed out all these sorts of inconsistency is in williams position  six months before the scheduled hearing aaa scheduled the hearing we hear nothing from williams the night before the arbitration hearing itself williams faxes in a letter for the first time ever and now at this point the dispute is two years and then for williams finally puts in something in the way of evidence it's the one page half a sentence affidavit one this relevant point saying that there's no agreement to arbitrate when rooms cannot dispute that they did at humor and tend to it here to the wage and benefit provisions of the contract we have a signed agreement that says that we don't need any other affidavits for that one and so we've been contractor you're referring to  was complete because that's what we said no way to the story you have have to explain that to me i didn't i didn't follow that argument as as the court explained in plain footnote one of its opinion there was a rule sixteen conference this is after the motions or file and the judge said do we need more discovery to develop the record and both sides not me but both sides said no we don't because the you know what everything that i have here is hearsay so therefore i can't what are summary judgment on the basis of this what is an incomplete evidentiary record the court would not have dismissed the case the court simply would have said that i think the raised before the district that's well that's right yes either informally or by motion that's that's right or what what is the agreement here that you're seeking to force as the collective bargaining agreement him yes it was it was not signed by whims no but the testimony of mr jun's was that we negotiated some concessions which are reflected in the product agreement that's on one sixty that appear page one sixty one zero the agreement itself it only appears in its description by the arbitrary i mean there's a reference to it in that one page one sixty one on the the agreement that william signed it says we want to adhere to what we have with local seventy seven testimony at the opera tradition hearing was that yes well that includes an arbitration provision too and there's one other point because i talked earlier about context which is important suppose williams is right and there's no agreement to arbitrate but that doesn't mean i haven't honored forcible agreement or right means is if if it's true that there absolutely no agreement arbitrary i still have an agreement to enforce it most i have the agreement on play at worst i have the agreement on page one sixty one and one sixty two and i also have the right to go straight into federal court what right does it give you think it gives me the right to adjudicate rather mr lewis had been fired for just cause or not and it gives me the right to say if he wasn't paid either the iraq war the right wages or williams can get in this case is the court saying you're right there's no arbitration but we remain and because there's still an underlying merits this be the merits of which has to be adjudicated by the district court pursu a one of the labor management relations act one thing that i guess i haven't touched on is is this underlying argument that you need to have a signed agreement in order to be bound by something and i think that district judge the district court adequately disposed of that the cases cited adequately dispose of that there was one case that was cited you could have a court in the case law a course of conduct yes which on the facts the third circuit simply said that this course of conduct does not indicate assent to one agreement albi it be the employer and that was ace was a party to another collective bargaining agreement containing a different arbitration clause so that case really doesn't apply but bethlehem or it doesn't support what whims a say but bethlehem gets cited in the earlier third circuit case which is versus operating engineers local eight twenty five and that's three fifteen f second six ninety five and on page six ninety nine the issue there was the union was trying to get out of the agreement because it had not signed the agreement and the court judge just a short cut to what the court said it did go back to common law and said justice sometimes once said conduct which impor acceptance is acceptance or assent in the view of the role whatever may have been the actual state of mind of the party and isn't watched chancellor seven wrote tell me what you have done under such a deed and i will tell you what the deed means it is clear the union violated its duty to refer employees to the employer it says notwithstanding that there was no signature on the agreement itself so that's an earlier case i guess that supports this but  again we've said it a number of later cases which we think support this again what is an unremarkable proposition of contract law let me ask you if you just take a moment to the damages thing is sort of beyond me because it is so messed up yes it looks like you're seeking about seventy four thousand five hundred dollars in damages plus prejudgment right and looks like whims of saying if i don't know zero then i owe something like sixty seven hundred dollars to my union and about fifty seven hundred dollars to the union funds so it's about oh about twelve thousand five hundred thirteen thousand dollars right and that's about as close as i can get because otherwise right it's a mass i mean for example the district court says  embarrassed because i could not support some of the numbers so i redid the numbers in a way i could support it and frankly fortunately it worked out to be within about two thousand dollars of it i mean some of the numbers shifted frankly from here to here so it's a it is it's simple yet it's complicated only because you have to look at each little component which i did and so the numbers the number and i think that as i that's all we know and we can't get anything else because they said we don't have payroll records for them or we know is it was x number of days whatever the number of excuse me days was and we don't know if those days were during over time  during the week so it's kind of hard to figure some of this out and so the rule of thumb the courts uses well if if the employer which is done the violation committed the violation gives you information that you can't really rely on the district judge the district court is entitle to make some assumptions and give the benefit of the doubt to the injured party and that's what happened at pages one six remember there were no oral hearings here and certainly nothing transcribed there was that one sort of status conference telephone call referenced and in just tucker's footnote one if you look at one sixty four one sixty they filed a response and cause move for summary judgment that was in our brief responding to what they had presented right right there so i think it's pretty clear that we will not sit on that that wri authenticity of the arbitration award itself as being the product of that arbitrator we certainly do dispute the authenticity of the facts set forth in that paper and you dispute the authenticity of the operator's agreement i don't believe the armory by williams that agreement wasn't even in evidence at the time that agreement wasn't presented to the district court i believe until after that until after one until after we had to after we moved to dismiss it was not attached to the original complaint i don't we wasn't properly authenticated but we did we did dispute that but there was no arbitration agreement in that document and you know if there were sue us under such a thrill on or under you know contract law and state court or whatever go ahead you know we have defenses we can we can you know i think williams would be glad to litigate this case and put an end to it would obviously rather have put an end to it  the the other state trial courts might be i guess they would have jurisdiction mr lewis could sue us i think we have a special imitations offense by now but that's not really before this court this point let me also point out that if you  start with something really simple you your client brings on a union worker to do a crane job at a hospital project in new york correct something is owed for that we paid this gentleman for the time that he worked now there is a dispute apparently about whether he's entitled to extra pay for this this long boom pay or some maybe some additional overtime was pay for after we fired him for what we believe was perfectly just cause and we don't believe oem anything for firing and we believe he was basically an at will employee in any  event but you know they think they can establish a you know either a contractual right or some other right to continued employment and you know they should they should be entitled to have about it in a court of law