good morning good morning runners may please the court my name is mark murphy i'm here on behalf of the appellant's the marine engineers beneficial to so she asian we call ourselves me but i refer to them as the union of the union and the liberty maritime corporation have maintained a collective bargaining relationship for more than three decades recently that relationship between the parties has been exceedingly strained this strain has led to a number of lawsuits  enforce its collective bargaining agreement in the d c district court and in this court i'll briefly explain the facts of this case for you briefly stated the relevant facts at issue here involve the manner in which liberty maritime manipulated the arbitration and grievance process that worked for them the parties labor contract to unilaterally appoint a labor arbitrator for one year term without the consent of the union a requirement that is explicitly explicitly set forth in the parties labor contract parties labor contract contains a grievance an arbitration procedure through which the union and a company are required to resolve disputes that may arise under that agreement the relevant contract rolling which provides that either party ma arbitrator that was unilaterally appointed by the company could decide his own authority we believe that is wrong under the law and therefore it should be either this court should rule that the parties need to choose a mutually agreeable arbitrator which by the way they have the the arbitrator in question has you when your term has ended and there's another arbitrator that has been appointed to has been usually agreed upon but because this arbitrator was not trying  exactly what we said was the district court err by deciding it was for the arbitrator to decide his own jurisdiction we believe that what this case has to do with is a substantive question of arbitron ability my threshold question that needs to arbitration happens and then an award is entered is the review at the back end of the same question of whether the arbitrator was validly appointed so that's a good very good question your honor just to let you know the procedure of that sense to district court issued its decision the arbitrator the arbitrator triesman who we challenge the unique challenge has conducted lp meetings the union has not participated in those meetings because of our position that we didn't think it was probably appointed he has issued decisions those decisions pursuant to the contract can be challenge through a petition to vacate in new york state court those decisions were challenge by the union and it's presently it's been briefed on the ground we are going to challenge on what ground on the challenge on the grounds that he so the district court here said arbitrator you got to decide whether you have  he did that he decided he had the authority he decided that without any kind of analysis basically just a one line i've considered it i think i have authority under the the contract we challenge that by saying that that was outside his scope of his of his authority so that the state supreme court judge has that right now in front of her so to answer your question if it's if the district court's decision is affirmed that means that then the arbitrator had the authority to decide its own jurisdiction right but then the state court the court judge still has to decide whether he decided that correctly whether he actually had the authority and whether he was mutually appointed under the party's contract so that's the issue that's been presented to this state court is that the same question then i mean no it's not same process because the question here and the question that the district court judge decide it wasn't whether or not there arbitrator had authority under the climate the arbitrator should decide but it's a question that the courts to decide right but then if the and then if we felt that through and then the court does decide it then is the court deciding the same question that's now before the new york and i i took your answer to be no because the new york court is saying assuming that it was for the arbitrator decide was what the arbitrator said and not or not right that's then that's where the new york court also looked back to the threshold question the new york court would look to see if the arbitrator's decision was reasonable and and acceptable under the longer the labor contract so to answer your question it's not exactly the same question that's being presented to her and that's looked at through i imagine an extraordinarily deferential standard here we were we have a hard row to hoe in the in the state court yes because there's quite a bit of deference given to challenge that and raise the threshold question if the state court judge ruled against us then there's still the issue alive here with which is whether or not the case should have gone to state court in the st place and the state court would decide that question of state courts not deciding that question the state court understands that the question before the judge is whether or not the arbitrator properly rule you right if you want to appeal that decision or the consideration are somehow barred from raising the threshold question well debate the basis of where the procedure is right now the state court judge understands it is aware of this proceeding she understands what is is being presented here we've explained to her that there are different issues so my supposition is that if we lost before the state a couple of different remedies we think we think that the the court here it's clearly fine on the facts that the arbitrary was not mutually appointed and therefore it doesn't have any authority that that could be a ruling if that happens then we would i think we've all we've talked talked about presenting all of the issues that the grievances that were before the arbitrator who now has no authority to the new arbitrator who has been mutually appointed we actually argue that suggested as that is a possible remedy for both of these cases that that wasn't accepted but that probably would be what happens if the this panel remains the case and directs the lower court to determine whether or not the court house the arbitrator had the authority  confident that we would win that but if we didn't win that then that would be but if you did when it then the state in other words the state court proceedings are conditioned on essentially on you're losing here because if you win  the federal court proceeding then everything that's before the state court proceedings now just swell again it depends i think on the outcome of the actual decision i am not going to say for whom before the actual decision from the panel better or yes there are if you if we prevail the union prevails and it gets sent down then i'm not sure what's going to happen there the judge in leon could say i still find that you know what i'm assuming you win that i'm just saying can at the end of the day you win what you want to win in the federal system which is the arbitrator had no authority right right then what we would do is we would present everything to the new arbitrator and in that situation i would think that the state court decision resolved in order to decide that or is it just a question of reading the documents well your are there course of dealing that you think is relevant for example or or or could a court just read the gets to decide the question is was there mutual agreement to point the arbitrator i'm talking about the substantive question and one what the collective bargaining agreement provides either facts that need to be resolved in order to answer that question well i think the facts that need to be result would be whether the parties mutually agreed upon the appointment of this particular arbitrator the union obviously states that the they did not well i guess what i'm thinking is that the parties coopt hardy's never agreed that liberty is position is that the collective bar you remember provides for the personal board members to agree and so i don't think they're saying that the that liberty and the union agree i think they're saying that what the agreement calls for is the board members to agree and there i think i mean i can ask them but i think their position is that your board members departed by not being there the board validly chosen arbitrator in their absence i think about their position so i'm not sure there's a factual dispute if the legal question and reading the contract were to be decided but i'm trying to procure a little nigger and and based on that of the union's position is that under the contract the lp is think it important that question yes in a contract meaning question but i i know in the labor law sometimes course of dealing our parties understandings can be on how we agree that i'm to i understand here what your position and then and what liberties position what the contract says and the provision with respect to the parties we think it's clear that the parties are referencing the grander parties to the union and the company who are parties to the actual i reading that correctly that's correct it references the aaa is the agency that would be used to obtain a list of arbitrators that then would be chosen that the tricky part about this case your honor is that as we said in our brief the parties and never used p b before what they had done was they had just gone to the aaa and asked for a list of arbitrators and those struck from that list so this is the st time that the parties are back chely asked had been actual rules that say the arbitrator gets to determine his own ability it's even your initial exchange of of letters between counsel that you are arguing that  what the collective bargaining agreement provided in terms of an ovum personnel board was not even a playable but you're not pressing that here you're reading that agreement and saying ok we're going that way the formal way that the parties had contemplated switching off of this practice of just turning case by case to the aaa if we're going with that you're saying well they have not applied it faithfully but you're no longer saying that that's not what god and we've moved on from there we w and management side labor right i understand that is your position and the braves them and the other question i have is as you read the terms of the agreement what is to prevent you know given that you read it to require the the mutual agreement of the parties and i gather the mutual going to the parties as to a meeting place and time are time what is to prevent one party from just slow walking and saying i don't agree and agree or disagree on a date for a meeting and or on the arbitrator's where would you point me to your liberty to a not sure it actually addresses this particular issue which is due to the appointment of the arbitrator but i will say in practice obviously there's a concern that you've raised that a party will delay or on time from not be timely here i think the practical matter is that it's resolved because there's already an arbitrator that's in place and the parties have a chosen arbitrator in the contract specifically says that arbitrator stays in place even after as your term intil a new successor is agreed on so in your situation if the company or the union were to laying in schedule agreements meeting or agreeing  on another arbitrator or any kind of meeting rove into the contract then the other side could go to the arbitrator that's in place now there's language that says that arbitrator is allowed to conduct a hearing issue a ruling even if the other side doesn't show up right i'm trying to get back to the situation room before though because i think this could bear on how to read the contract and i it's a little bit curious because section two d talks about an arbitrator appointed by mutual agreement and extended it if mutual consent and then there is a sort of tie breaker or process for dealing with a  a logjam in the reappointment in the event of determination of the arbiter of the party will agree with in fifteen days of panic success or failing which they request an agreed upon agency to designate five names so but that's only with the successor is it your understanding  that would have applied at the up front in the situation that you and liberty were in a year ago or so i can just tell you what we did and again this is because this is the st time the parties used the lp be process in the thirty years of of their having a look at labor contract what we tried to do was we present the both sides presented a number of labor arbitrators that could be agreed on and we submitted that to the other side hoping that one of them would kind of be enough nuff of a match that appoint that person a slip that is the arbitrator that did not happen so then what happened was the problem that we had which was liberty unilaterally scheduled the meeting appointed their own arbitrator what we've done since then is we have to appoint a new arbitrator as we've gotten a panel from the aaa and we've alternately struck the panel until we reach the one person left and that person serv the l a p d chairman so i think your honor that's probably what would happen and in this in the future if that if that occurred well what would you have done i mean just devolve into questions i suppose you have a situation in which the four board members are appointed and then your two people want to get on with the process of and naming the arbitrator and you perceive liberty as just not participating in the process you reach out and try to say hey can we get together to talk about who  and we had a list of five from the aaa and if they kept saying we don't have a good date we can't meet with you we can't do this we're not available at some point we would i think one side or the other would determine they're not they're refusing to abide by the contract so we would have to enforce it whether it was the company or for the union in that situation lightly here really thank you good morning runners to please the court i'd like to get to some the questions issue for cool preclusion that your article raising earlier but before we do that you think that's really the category that you were searching for before we do that i'd like to talk about what i think judge rogers called the threshold legal question there is a threshold legal question here and it is this three years ago this court in a published opinion took up the very same contract clause and indeed the very same provision of the arbitration clause the term interpretation and this court held that interpretation is for the arbitrator that's the only question for this court today it's the decisive question so in the low in under that view suppose the liberty reads mutual agreement to mean mutual agreement between the two liberty board members and then they just say all right you know what  were putting forward our name for this the arbitrator and that's the arbitrator and then the union says what he talking about there's been a mutual agreement we haven't even talked about this and then he was able we reach agreement to mean mutual agreement between the two liberty board members and that's something says disputes relating to interpretation so it is a dispute relating to so i do think the parties intended even something that extreme which did not happen here and so you think in that hypothetical then that's for the arbitrator that the two liberty board members pick and liberty takes the position that that's the arbitrator the arbitrator gets to decide whether the arbitrator the arbitrator and you think what the but both parties came together and jointly agreed that if that were the  circumstance both parties agree that then the liberty named arbitrator gets to decide whether he or she is validly appointed yes indeedy st in the st instance your honor and here's why as your honour's questions pointed out new york law provides for proceedings about the standard of review there well the standard review is that misconduct in procuring the award is number one listed on the list of a creature grounds in new york so i think that might apply to hypothetical again we have ample contrasts with this case but i'm trying to dress do you know about your dress and have the yes and partiality of an arbitrator is the next one and the next one is the arbitrator exceeded his power you might you might have a deferential standard but it is clear in cases that's why this statute exists and so your honor hypothetical which i think is very extreme would be a target for review even under that standard and the reason we want that way is that these parties bargained for private quick decisive resolution of shipping just that i mean that works a lot of times i guess i understand the logic of that argument but the whole enterprise here what we're supposed to be trying to do to understand is it is the particular dispute that before us that kind of thing that we envision the parties would have been imagined would be resolved by the arbitrator and for a lot of things that's true it seems a little bit but it seems a little bit odd to me to think that where the question is whether there's a mutual agreement the very question is whether there's a mutual agreement the thing that the parties intended was to have a person who one party thinks was appointed purely by the other party be the  resolver of whether there was in fact a mutual agreement let me give you a couple reasons to think that's the case textual reasons and then i'd like to give you a precedential reason the textual reason start on j forty six and it is with the arbitration clause itself if you look at the top of j dollars it does say all disputes and it does say relating to and it does say performance of so we have what this court called three years ago a quite broad arbitration clause that creates itself a presumption crossing over into a presidential type of argument but sticking with the text then we have on page forty eight dollars another indicator that the parties would have wanted this to be the case and i think this gets to some of judge boards questions about obstructionism if you look at subsection f it says that either party there that's not both parties mike my friend used the word unilateral a number of times but we are quoting from the contract here either party can call a meeting of the board within twenty four hours and you'll notice telegraphed with telegraphic notice this is before  the days of email we're calling them a board meeting in twenty four hours and you have to come and at the end of the paragraph you see the arbitrator has to issue a decision within five hours with those parties sitting there that agree to this resolution for a asking about which is that threshold determination and the allocation of a view of the threshold of germination of whether an arbitrator was validly appointed who is the the th member that  question is the prior one do we have an l p b m i understand and that's exactly why because we're dealing with a threshold question you could do an end run around this entire basically rendered meaningless were not available were not available were not available and the entire purpose of your position is if in the choice of arbitrator the other party says we can't come this week how about next  twenty four hours was far more was given here and here they didn't say that my mom for your authority for two things one that you can unilaterally choose the  r interpretively agreement because subsection c talks did talks about mutual agreement and so the question is how do we get mutual agreement on the arbitrator and the contract doesn't give us a lot of specifics but if you back up and go to be you see that the phrase mutual agreement appears again and it's talking about the board acting by mutual agreement and so i think the textual support that you're looking for judge for is in both d c that's on j forty seven dollars and in subsection b that is j forty six dollars and it indicates that what the parties wanted to do was to have a mutual agreement and i'd like to get to the presidential reason for this we have a decision from the supreme court in its house and it says that we have a gateway procedural disputes or for the arbitrator so even if your honour's think that you know what will do we have anything besides the contract here we do also have the supreme court telling us this is certainly not a substitute dispute there's no question that the parties agreed to  arbitrate the underlying grievances but will be happy is a gateway procedural dispute that the supreme court says is itself or the arbitrator and judge justice breyer said at the end of that opinion it is not a question of arbitrary ability have a validly mutually agreed upon form up and running which you know we have in this case i understood your honor but the question is not is it the same case but is it a procedural dispute or is it substantive i think that's donald think that's right and i don't i don't think you can just say that there's the world is divided between procedural and substantive and the supreme court has told us something procedural because you have to ask again it's even question when the supreme court is talking about procedural do they have this kind of thing in mind and this kind of thing means is there a validly appointed forum in the st place i don't think when the supreme court talked about procedural issues that had this kind of thing in mind well by this kind of thing we can only mean what the party said they were referring to and they said disputes relating to the interpretation of this agreement that certainly would seem to include the phrase on the next page of that same agreement mutual agreement what did the parties think they were agreeing to let the arbitrator decide what does mutual agreement mean what's your view mr nichols of how there was mutual agreement here sure i mean i sketched what i thought was your view when i was questioning mr m like to hear whether that was correct sure again granting that that we think that's a question for the arbitrator there were two there are two reasons there are mutual agreement here number one there was notice in default i'm not sure what happened with the case before ours but if that knowing default by the union we will not attend number two i understand this is reasoning by inference but the j forty eight the provision of the contract at the bottom of that page says that failure of either party to attend another creation hearing shall not delay said arbitration that subsection h at the bottom of the page and i realize as your owners have rightly pointed out we are at a threshold question before that but if you're if you're asking what would the parties have wanted to arbitrate they actually thought of someone not showing up these were these were thoughtful people who anticipated the situation where one party said we're not coming guess in labor disputes you it can be antagonistic like that in the ideas we need to move these things along because shipping is time sensitive but it's just that you answered your own question i mean what this obviously says is they agreed that somebody has to show up when there's an arbitrator nobody this doesn't say that the very question of whether there's an arbitrator is one that the arbitrator decides i understand it doesn't say that we're looking for textual indicators of what huge who decide i don't even understand how this is a textual indicator if it just presupposes these a sense of an arbitrator whole question here is whether we have an arbitrator as contemplated by the agreement it's a textual indicator for this reason when you when you read a contract you try to read it so as not to render any provision meaningless and age would be meaningless if you could just say we're not going to appoint an arbitrator to begin with and so this is a provision that has to be given meaning and what ended up happening here in this situation was the arbitrator and the were in court now to deal with it because that provision was was read out of the contract we weren't able to give it meaning because they wouldn't let us get to that question mr that occasion  the contract and resolving the dispute between the union and liberty on what this contract provides are there facts that you think need to be found or they take your position a you read the contract and that the arbitrator should read the contract in the way most plausible giving effect to the parties intent but rather actual sort of the storable facts that would need to be or bear on how we read the real evidence that sort of thing yeah i don't know because our view right now is that the contract is clear we think that this case is controlled ok by me but one but we're not saying that if the if a court disagree that it would be there would be wouldn't be a need to look at outside indicators of what the parties intended because i felt that well you imagining a parole evidence but on or in a different situation i'm i'm trying to distinguish between a contract that i think is clear if you haven't yet convinced your honour's but but i think it clearly stands this particular issue to the a this and what your honour's might think which is i am not sure if that's the case i can see parole evidence potentially being relevant and i don't want to rule that out and say well if if you disagree with with my take that the case is over because he said it was clear we want an opportunity imagine that we didn't think it was clear what's your position on how or when and parole evidence might be it's just regular contract law or is there something about the labor law that would answer to this has to be yes but just to be clear if the union had done had just said that there's an arbitrator and that's appointed by mutual agreement even though all that happened was that the union had to board members and the board members picked an arbitrator you take the same position that that something that the are that the you know appointed arbitrator gets stronger there would be you and you think the liberty agreed to that when it entered into this agreement not not to that procedure we think that is not what the contract says and that's not what we did not but to have the arbitrator result as your honor yes i do i think that would be reviewable at the end just as we are saying this case these case these grievances excuse me wrong were these awards are being reviewed state court in fact have been teeth up in state court already do in fact we think we do think the aaa continues to be the the forum that was designated for these sorry not the form i think my friend said the same thing it is the one place one can go from room to request arbitrator's and we didn't do that all right thank you thank you sir thank you thank you just a few follow up questions with respect to my colleagues arguments st and foremost with respect to the fact of what he was claiming is no reason to fault you have to understand again the parties had done this before the union was very leery of going into a process that hadn't been done for thirty years particularly since we've already followed a different process we were unavailable for the unilateral date that the company set to the unilateral date in new york city we offered five separate july dates so this was not a situation of the union delaying or not wanting to participate that's at three hundred and forty six so that's factually there's no there's no well let me delay here i mean  spoke for the union so we thought that was another tactic that they were using to kind of try to hijack the whole process and this whole process your honor is supposed to be under federal labor law it's supposed to encourage resolution of disputes that's exactly the opposite of what's happened here obviously and just to speak quickly to the hotshoe decision from the supreme court that liberty relies on really what that case says and asks the court to determine is would the contracting parties have expected the court to put aside at the gate we matter where there are no where they are no likely to have thought they had agreed to an arbitrator would do so so here the question is would the union would the union have expected an arbitrator who was mute unilaterally appointed to decide his own authority we submit that neither side would do that so under that supreme court precedent that's a gateway issue that's for the court to decide so st options versus kaplan is the case you point out that that's also that's the same yes that's the same provision you're right your honor but it's critical because there is no arbitrator here appointed by mutual agreement so that that person can't rule on his own authority he doesn't argue he doesn't have any authority even to issue that st decision the close on this issue also your honors with respect to the contract at the very beginning of the contract there's reference to both sides the company and the union and that on thirty dollars that makes reference to the parties so clearly the parties are the union and the company it's not the two lp members from the company it's not the to be members from the union those are just representatives of the larger organizations that are signatory to the labor contract the union and the company if there's not mutual agreement between the parties the union and the company then there is no there's no arbiter there's no arbitra appointed and that should be something that's decided by the court all right thank you