know everything good morning may please the court my name is henry farber and with joseph hogue we are here representing aerojet rocketdyne and we'd like to reserve two minutes for revolve please we are asking the court to reverse the district court  arbitration award at issue here on two grounds st that the arbitrator exceeded his authority given to him by the parties he did that in two ways one he ruled on an act that was committed in tw when the underlying collective bargaining agreement was not created until two thousand and fourteen and the issue very clearly presented to him by the parties was was there a violation of the two thousand and fourteen collective bargaining agreement the nd way he  we know that st because as i just mentioned the violation consisted of conduct prior to the creation of that collective bargaining agreement we also know that because he negated the party's agreement that program h the pension plan it's issue here would apply importantly we know that on on the key point he found that there was no agreement between the parties know many of the mines and he ordered the parties to negotiate a new agreement and that's just not a remedy issue that's that shows the fault the award itself that he was not construing the agreement he was requiring the parties to create a new agreement and so therefore it cannot draw its essence from the collective bargaining agreement i want to just briefly point out after that in september of two thousand and fourteen the parties negotiate a new collective bargaining agreement and in that collectible remit they say they held that the provisions of program h would apply subject to some changes that they negotiated it that the union didn't request a copy of program age how is it that that you didn't provide them with a copy of program h just routinely how it was that this wasn't sitting on the table someplace well so so as as i'm sure the court knows there  national labor relations act to provide information that is requested by the other party that's relevant to the negotiations and pursuing to the request of the union the employer provided the summary plan description of program h there was not a request for the actual plan itself and so the employer provided that mechanism and it may be that there was no for the request because the program had already been implemented a year earlier in two thousand and thirteen and the parties were both parties are very familiar with all the case law about deference to the arbitrator and you know that doesn't get you to the end of the question but if we were to determine that the arbitrator did therefore we uphold the interpretation that the arbitrator gave what does that do with the remedy because now are ones as well this remedy is the the merits issue here before the court and the remedy issue are so tied together that that would be a difficult thing to accomplish and i say that they're tied together because the arbitrators a war even putting aside the order that we c and ask them of help us out putting that aside the other part of the order was that the parties negotiate a new agreement about what the offset should be that itself shows that he wasn't interpret in replying to the current collective bargaining agreement but if you were to then a poll that in and confirmed that met the merits portion of it and then try and find a remedy we think that is a new a new case it's a new arbitration at that point about how to resolve  t that's my question as you would then have a new arbitration on that point and would it be in front of the same arbitrator would that be to be determined as a practical matter a month ago i might have answered differently because we've now had the remedy hearing for the arbiter there was not a stay of the district decision and the parties have invested their time and effort in having the remedy and we don't have a decision yet in the briefs on filed and i guess the answer is it has already happened yeah  practical matter we've had that remedy hearing ok and so my guess is the parties would just proceed with that counsel the the party filed the grievance that was set all of this off was was thought that he was short about twenty six dollars amon big scheme of things not a lot of money how much money is stake here how many how many people are we talking about that are affected thousands hundreds so there are the numbers vary between the parties a little bit but we're generally talking in the range of fifty people and in we learned from the remedy hearing that there actually is agreement among the parties that from from the standpoint of actuarial equivalence program agents offset provide double dip it's a double dipping problem is that if i think from your t c s perspective is wait wait a minute you're we're giving you both early retirement and we're giving you the full benefit of your retirement that's right so and i realize i'm speaking a little bit outside the record i want to be careful that but we can provide from the transcript of the remedy hearing proof of that statement that both parties agree that there's actual equivalence between program h and the prototype for something to me what i would consider small number relatively small number of people in the poor which isn't often the case and the amount of money without making a judgment about actuarial equivalent i mean is this at this stage a case that could be mediat reason i bring it up is that often there are ongoing discussions and sometimes they're productive and sometimes they're not but we have a very professional  decision that we might make pending the ongoing discussions we i mean you don't have any control over that unless you advise us that you wish us to stay our hand until you try and work things out i will speak for myself i would  i can safely say please don't do that all right so let me turn then to the the the reasons for vacating the ward as a whole the issue it's the case law tells us that an arbitrator's authority is limited to the issue present to him by the parties with the parties have agreed to arbitrate the issues as found by your traitor was was there a violation of the two thousand and fourteen collective bargaining agreement page of the record his analysis of the orbiter ability is all about the two thousand and fourteen collective bargaining agreement and you add to that the collective bargaining agreement contains limits on what can be arbitrated it's specifically says no grievance arising out of events that occurred prior to the execution this agreement in september th teen shall be submitted to arbitration under the provisions of this agreement nevertheless the arbitrator found that implementing programme h in of this really has to do with c b a formation that's it's it was really a question of things that were represented to the union and that the union had no further reason to took to question the word of the officials that they were that they thought they had they had list had heard clearly and in good faith and therefore the c v a itself is deficient because of the way in which it was formed well i would say i would say that all differently because your betrayer did not rely on the statements made by u t c to the employees in finding a violation what he says is neither party knew what was going on and emerged to know what was going on and u t c and the employees didn't know what was going on program and so they clearly had to discuss the implementation of program h at that point and yes there's no evidence in the record that the union had the full plan but they had the summary plan description they had the right to ask  question i have if you look at cases like asarco where the interpretation did seem more than a few degrees off the court said well you know they looked at the can tally and we enforce the agreement we just we might disagree and we might disagree here if we are interpreting because many of the arguments you're making are there contract interpretation arguments and the question is at what point do they tip over so you can tip the decision here it seems you know objectively we might have made a different decision but the arbitrator did go through all of this what you're talking about did acknowledge  that they didn't ask but also said in the end you didn't have a meeting of minds on the contract what is your best case for us being able to invalidate the arbitrator's decision and the circumstances of our our best case i believe is that the arbitrator found that there was no agreement the officer job is to interpret or apply the agreement in when he said there is no agreement there is no meeting of the minds that's not an interpretation application that is very different than asarco where the arbitrator made an interpretation of the agreement do you think he doesn't have that authority but i do think he does not have you thought to say there is no agreement between the parties decision here that there was no meeting in the mines also end up being a determination of what is what contract is then binding i mean it ends up in a contract interpretation  some cases it could have been in this case it's not because what the arbitrator ordered was two parties to negotiate a contract he never came to any conclusion about what the contract is and what it should be he left that to the parties and when that when he's you know  paltry as it is i'll give you some additional good morning your honor michael anderson for the united auto workers at the outset you know i will check with my clients about the question about the mediation office i think that the parties are making progress so it may be that maybe a rational way to proceed you know a joint submission something that says we tried to work this out and we had it we've done our best and it didn't work i don't want to overcommit but i think that would be possible ok and we're just saying if you want to use the mediators on the other hand being in the labor field  you have access to not only excellent lawyers like yourselves but any host of other resources there's a threshold issue that was not touched on in the opening argument which is that the court does not have appellate jurisdiction in this case at this time what judge goodyear is did is he confirmed the liability findings of the arbitrator but they catered in part based on the submissions of both the union and the company and sent it back to the arbitrator to revise the remedy that means that as of this morning there is no court confirmed order that the union can point to to compel aerojet to do anything and there won't be until the arbitrator resolve new remedy and the district court either in forces or vacates that remedy this is just a basic issue of finality that is no different than you would have if a defendant was aggrieved by the fact that their motion for summary judgment on liability was denied and wanted an appeal before the the court the district court went through remedy proceedings the court recent decision and sanchez the verses elizondo sketches out this distinction and before you decide this issue i would urge the court to look at the nd circuit's opinion in landing michael's vs service employees which is cited and sanchez which is essentially identical to the present case a district court confirmed an arbitrator final confirmation order for the court to review and i also supplied the court with an unpublished decision that came down i believe this june in which this court dismissed an appeal in a authority because he allegedly decided something that the company says a rose before the two thousand and fourteen collective bargaining agreement was presented to and argued to the arbitrator what the order trader did was he said that the actual breach did not occur until two thousand and fifteen when employees actually applied for benefits and discovered that the offset that they had been promised would not be applied was being applied after all and the arbitrator concluded that therefore the a cruel of this grievance the dispute actually arose in two thousand and fifteen during the term of this agreement now that was an entirely plausible and in forcible conclusion to make in the st place because that is the very accrual rule that the th circuit applies in analogous arisa cases when a plaintive claims that a plan was improperly amended and brings a cut action under a recess this court concludes that the cause of action only arises when that person applies for benefits and not at the earlier time when the plan might have actually been amended in a cruel rule it is different from the question not say there is no agreement the arbitrator said the parties agreed to program each with this offset that was unilaterally slipped in so the arbitrator said when he said there was no meeting a minds he said there was no meaning of the minds as to the offset but he didn't say that there was no agreement in effect what he said is that what the parties agreed to was program h but not the offset that the employer employee unilaterally slipped in that you have three different parties and two different two different contracts that you're talking about one is program eight which is between the corporations and the other is the other is is the is the two thousand and fourteen c v a correction which assumes the existence of program age exactly but what the arbitrator effectively held was that the unions understanding which he believed which he held to be the actual meaning of the agreement in two thousand and fourteen was program age but without this offset because the offset had been represented to the union as something that would not be charged against the employees i'm still curious as to why as to why the union didn't go around and verify that what had been promised them  had been was was was brought to bear when when the two corporations actually merged with the other program and let me tell you why so having reviewed last night the arbitrator's decision having read the transcript of the of the of concerned employees as to what's going to happen to our pension if we do that i'm struck by the fact that the employees realized that this was a double dip that they were getting something they had not expected and  previously bargained for because they were going to be able to take early retirement and still get a full benefit of their retirement that just almost feels like and i think that there were i think they seemed a little i think the evidence is they were a little surprised by this they apparently asked repeated questions and got the same answer back and everybody went away pretty happy about the horrific it seems to me that somebody might have wanted to verify that all of that was still in the agreement when the two corporations got done that may be true but the the the good what you're describing is the double dip was seen at the time as the sweetening of the deal that would persuade the union not to file a grievance and not to challenge the institution of the new pension plan back in tw thirteen and i understand your point that in collective bargaining negotiations in two thousand and fourteen it would have been prudent for the union to demand the copy of the program h two hundred and prove more than  except that the arbitrator had the authority to say that the union was entitle to rely on the representations that have been made beforehand and you may disagree with that as a matter of contract interpretation but those those representations are made by u t c not the acquiring company they are made by the company because they are made on behalf of the company by the u t c people as the company's agents the union has no collective bargaining relationship with the parents right but  but my point is you might have wanted to verify that you that the benefit of this very good deal was actually conveyed when the two companies decided to merge and have an agreement to do so well if i had been advising the union that point i would have recommended that but the fact remains that that doesn't relate but right now the arbitrator has the authority to say i conclude that the pension agreement that binds the parties is program  minus the offset and the language about there being no meeting of the minds is not that there is no contract and i'm going to make one up as a interest arbitrator it's that the offset that the company is trying to enforce against the employees now was never agreed to by the union and therefore i don't i don't give effect to that in construing what the parties actually agreed to as a pension commitment so if we were to disagree with you as to whether we there's  let's just assume there's jurisdiction i'll ask you the same question that i asked your colleague and that is what if we agree with you with respect to needing deference on the contract protection even if we think it's a stretch what do we do then if we look at what was ordered with respect to the remedies are they so intertwined that we can't know that yet but if we're looking at the arbitrator's decision which is the liability which it's been referred to which is really the contract interpretation and then if we were to take  i would i would say that it's very common for arbitrator's to remand things to the parties as long as the arbitrator has the final decision if they can't agree so for instance in an arbitrator would order back pay would not determine the amount leave to the parties to hash out but they always get to come back to the arbitrator if the parties can agree and that's the union's position about what that remedy would mean that when when judge goodyear is sent the remedy back to the arbitrator it may involve some degree of mediation that the parties talk about what they're willing to do but ultimately if the parties can't agree the arbitrator imposes that as a remedy and that's not the creation of a new contract that's simply awarding a remedy for the breach of the contract and if the court concludes that the arbitrator was in forcible in finding that on the merits the contract was breached then the arbitrator has very broad authority under the steelworkers trilogy to devise a remedy that's not the creation of a new contract that's just coming up with some means to remedy the breach that the that the  have the authority to decide orbiter ability that's you know that's in the petition excerpts of record twenty four dollars paragraph twenty one dollars and that adds a new order of magnitude onto the deference that is already due to the arbitrator that aerojet wasn't required to do that they could have said we don't think this is our bridgeable and we reserve our right to bring an independent judicial challenge but once they devote the question of arbitron to the arbitrator they are bound by the arbitrator's conclusion even if they later want to argue to a court that that's wrong and the supreme court's decision this year came after the briefs but i put in the twenty eight dollars j in henry j shine confirms that where the parties do devote the issue of arbitron bill would be to the arbitrator that courts can't make up special doctrines vary the standard review from the way that they would review the arbitrator on the merits so when the orator concluded that he wasn't adding to the contract that he concluded that the actual pension agreement was program minus the offset and that this grievance didn't arise until people applied for benefits in two thousand and fifteen he's effectively interpret ing all of the contract clauses that the company is now arguing to you and the issue at this point is not whether this court believes that the arbitrary was right or wrong but whether the arbitrator was honestly confronting the conflicting arguments about the interpretation of the agreement and resolving them arbitrator horowitz clearly did that and therefore to the extent that this court would have jurisdiction to review the merits at this point it would have to affirm judge judy heiress the final point i would make is that that would of course leave the remedy which has yet to be decided based on the remainder order i mean that is to say the revised remedy that judge gutierrez ordered to be to be done pursuant to the that would then work its way up to the district court and could end up before this court again on review of a court enforced remedy finding but the reason why there are to you now once there is a final court enforced complete arbitration but until that time you don't have jurisdiction if you find that you do have jurisdiction you should affirm thank you thank you two minutes on the clock for me but no thank you i just have several points i'd like to make in response st with respect to the jurisdiction of the court and whether or not there's a final order this case is very different than sanchez and landy michaels those were cases about miscalculation and it sort of administrative errors in the arbitrators award this is not that kind of case where the where the district court ordered a whole new remedy private but  last point was if the arbitrator comes to a decision you don't settle the case and the arbitrator comes to a decision then there's a you've you've you want you want just a court to overturn this and you've got a right of appeal that just were right back here on the remedy we've handled the whole thing piecemeal well that is a possibility but but the other side of that coin is we have argued to you in our briefs that this should not be remanded to the same arbitrator and this is our time to to make that argument if we but you didn't ask for a stay so you've something that he that he may buy by the time we decide that he may have already decided well we have to be frank we have more control over when the arbitrator issues his decision than when you do other than the comments that we've expressed earlier this morning  grievance wasn't timely and that's a procedural arbiter ability question that is clearly for the arbitrator we let the arbitrator decide that he decided the grievance was timely that someone could file a grievance saying i'm not getting enough benefits that's not before the court now what's before the court now is the arbitrator's determination that there was no agreement in the twenty four agreement and that's the point i want to focus on the most the arbitrator did not say and i would encourage you to read the award that there a program h minus the offset was the agreement of the parties what he said was there's no media in the mines i can't decide what the agreement of parties is so the parties have to negotiate if he had found that there was an agreement of the parties