the district of nevada has crafted a test regarding a dispute that occurred at post expiration of a collective bargaining agreement that neither has support in the law and fundamentally is unworkable as a standard the test that the district extrapolated is basically a mathematical test of trying to count up the number of what they call material facts that occurred before the expiration and then put in the words of the district judge a gloss on those facts to come up with what the judge consider to be key facts that occurred before the expiration of the collective bargain agreement whereas the only relevant standard coined by the supreme court in lytton in clarifying nollie brothers was whether there was a vested or a crude right that had occurred during the term of an extent collective bargaining agreement or whether there was other language in an expired collective bargaining agreement that allowed for an interpretation that the parties said express lee agreed to save for arbitration post expiration disputes neither of which occurred here indeed the key fact that the district court did well don  theft in the workplace can't be a vested or accrued right there is not one shred of evidence to suggest that the parties had agreed to hold over the facts and occurrences had all preceded the expiration and then the employers as i understand the record here the incident giving rise to the ultimate terminations which occurred after the expiration of the very cartesian that's reference to your honor and that would be this if we don't know that he has altered the document and it's the sky over and later in the fact that in other words the tree fell in the woods and nobody heard it didn't make a sound only time a dispute arises is when it's discovered and when a grievance is filed the owner would agree with you that the fact of the incident occurred before the expiration of the collective bargain i believe your honor that in lytton's language that is irrelevant but you're still an answer of course of course the thing that judge read focused on is that heat his key fact is the individual turned in a slip wreck requisitioning tools and then altered that slip to request more tools for his own personal use known as staffed that fact occurred before the expiration of the agreement now let me ask you this nick is it is it do you d which i think is is a matter of record your honor is they had an inkling that he had turned in a requisition which they process it was only october second three days after the contract had expire that they started to have a sense that perhaps he had altered that request but again your honor this doesn't lend itself to some mathematical equation of time that you tend to well that's what unfortunately the standard that has been crafted here by judge read consists of in that system supportable what about the collective bargaining agreement and and trying it is very clear the effect of a collective bargaining agreement and most specifically in arbitration clause is coextensive with an effect of collective bargaining agreement unless under let in the parties have specifically agreed to arbitrate disputes that come up after the contract expires but once the contract expires and that language that's in the agreement about the scope of an arbitration that has expired it is it is a function of contract here and simple there is no standard to be derived in the collective bargaining agreement from an expired collective bargaining agreement and it's  that we had then terminated him and then said well the grievance didn't progress to arbitration in time before the contract expired i would allow as how that would be a circumstance in which we could not refuse to arbitrate because all of the rights and obligations had already ripened by the time the contract expired we would not be in this position of refusing to arbitrate if all of those material facts had to had occurred before the expiration of the agreement but you can't parse the fact i have no idea how the the district court concluded that was a key fact the only key fact if that's the standard is he's terminated that's what created the dispute and that didn't occur until the contract had expire your honor that would imply that there is a just cause standard because once a contract expires an employer resorts to their lawful standard of at will there wouldn't have to be a reason there wouldn't have to be it vested right to be pilfering from your employer and as a result of that there is no just cause standard that exists after the collective bargaining agreement expires what  in anticipation of of my opponent's argument they try to then come cock this argument that the vested right is what the arbitration language provides as far as an  looking at facts and occurrences and whether those are substantially as the employer knew them as to be that doesn't create a vested right in the employee that may be a nice standard for an arbitrator to conduct his proceeding in his or her proceeding but the origins of that language is simply the steelworkers trilogy all that is is to say that an arbitrator shall not second guess and management's decision about t propriety of a terminations and if they can't find that to be discriminatory or arbitrary as the express language of the agreement provides then the arbitrator can second guess the decision only if they make those express finding but that clause expires with the collective bargaining agreement and in it is completely contrary to a t n t technologies and even litton itself to say that you look to an arbitration clause to come up with rights that transcend the expiration of the agreement the only reason you would f case the eleventh circuit has said exactly that once that contract expires just cause there's gone the parties resort to at will status and the benefit of the bargain has lapsed let me occurrence what we certainly know they didn't say material and we certainly though they didn't say key and they didn't say all right but your honor i think the fairest reading of that language as actually justice marshall observed in the in the lytton case in dissent but for a whole different reason that he said there's only two standards in that in that iteration by the court that is was it a vested right or is there some evidence of an agreement to arbitrate post expiration i think it in the dissent by the way in the south central case judge kennedy i think reads that clause perfectly the way it should be read and that is of course all of the facts and occurrences about a vested benefit would have to occur before the expiration of the collective bargaining agreement or there would have to be the facts and occurrences about the parties agreement to to arbitrate disputes post expiration it is not a separate standard it is simply a modifier otherwise your honor it would have said as the court is prone to do the test consents consist of three discrete points and number one number two or number three or grammatically there would have been and or between expiration as justice or judge kennedy points out in the south central case there would have been an or between providing three different standards now to your question if all of the facts had occurred except for the employers agreement to arbitrate a dispute we wouldn't be here here are we wouldn't be here if if terminations had occurred and there had been a grievance filed before the contract expired we would have met our obligation to arbitrate this dispute and so if you analogize that to the situation in south central or unfortunately this standard i think became quite murky there you can point to something that occurred post expiration or pre expiration and that is that the residency requirement was provided for in the collective bargaining agreement the union had filed a grievance when that individual was disciplined and they claimed that the employer was a stopped from relying on that residency requirement because he they had changed the interpretation during the term of the agreement about that residency requirement and all of those facts occurred prior to the have here even if we were to adopt a mathematical formula here we have according the judge read for significant facts before it expired and for that occurred after expired there is no place here for grievance can be said to arise under the contract only where it involves facts and occurrences of the rose before the expiration or an action taken after expiration fringes right recruiter vested under the agreement or where the norm princip the vast majority of cases from arbitration where someone is fired two days before the contract expired for two months or two years yet the procedure isn't resolved or the final decision isn't resolving pla really the nub of this case and i'm going to i'm going to come at it from a different direction which is the parties to this contract resolve that question your honor the parties to this contract resolved that question because what they said in a terminations case is it's not a just cost hindered the standard is in the case of employee discipline or just charge the arbitrator's shall determine the question of act question of fact at is the question of fact as to the occurrence or not occurrence of the circumstances i mean the two requisition having said that what has happened in this case is newmont has really created a very difficult question of what this contract means in order to lead to the arbiter ability question because what they've argue in the reply brief page eleven is that what we argued in our brief is that the central issue in this case the making process we're not going to look at the fairly investigated which i would concede in most discharge cases it's something that you look at you look at when there are seven tests of despair all sorts of things are which here is look at what we say the parties excluded  we certainly be here because the contract requires that the reason be given i'm not sure that well the contract expired at that point the question is whether it's a contractual question and that's i think my  after their contract expired even a new euro is just say you're just charged no reason we just decided to do it but i would then argue to the arbitrator that having given no reason they never had any facts and circumstances that reflect upon whether there were facts or circumstances not the merits of their investigation i suppose and you get into a difficult erring man when the nine reason occurred this is the point of side show i w of interpretation or application of the contract which what it seems to be given counsel's argument in this circuit when you have a broad arbitration provision in this do i think it's understood viewed in that the arbitration procedure is fraud it is defined as a grievance is any controversy complaint misunderstanding or dispute arising and to the meaning application or observance of any to the arbitrator decide not the court if you have a narrow provision it's for the court to decide that's what interstate and does your pal say so what the employer has done is created an intense to what the key or material fact is under the arbitration under the collective bargaining agreement that gives rise to the right to arbitrate i phrase it differently i'd say you'd look to the collective bargain remit first scope of review now for example the parties could have said something different they could have said arbitration language like this arbitrator may only consider where the company abused its discretion at the time of the exercise or some language of the arbitrary is limited to determining where the company may take full and fair investigation then they would have a very strong argument that the language in the contract is clear that the arbitrator only considers things that happen after september thirtieth but that's all contract interpretation that's all contract interpretation and this is an unusual agreement because it has that kind of defining qualities about what goes into this arbitration decision and that's why i think in this circuit you really don't have to decide material any or all in this case because they've created this contract dispute issue what if we you know simply saying contract seems to state facts and occurrences all that occurred before we don't really have a question here on the other hand the company does have a fair argument because there's the remainder of that that language says if it  determined that such circumstances were substantially is found by the employer the employer's decision as to the kind and degree of discipline should not be disturbed unless there is an expressed finding that the kind of degree of discipline was unreasonable the arguments well that means you've got a lot of other things i said no you don't you just look to the facts and occurrences and what the employer's done up to that point in the similar circumstance you don't look to what occurs after october one but the problem  e which falls within the broad arbitration provision of a controversy complaint misunderstanding or dispute arising as to the meaning of that provision and under desert palast an interstate enough in your view that the alleged alteration of the requisition occurred during the term of the contract or are you also depending on  getting in a dispute or investigation i would our position is that the alleged alteration which was completed during the trial and the contract is enough even under south central power because even under south central power what the court says is that in contrast to the pensacola case he in contrast we conclude that a majority of the material facts an occurrence is leading to skinner's discharge occurred prior to the expiration as you look to the facts and circumstances which led to the decision to discharge i e the two requisition alterations you don't look to the decision itself because that can legal lot of mischief which is the employer's will simply find out about instead and wait and wait until position which i do want to dispute he is correct that now in light of litton you can't presume that the arbitration provision continues after the contract expires that's what litton says but lydon changed on october third we wouldn't be here because we understand that we can't compel arbitration where the facts and circumstances arise afterwards counsel isn't the question really one of the porters agreed arbitrator to determine because we have a very broad arbitration provision because whether they agreed to arbitrate this dispute is in fact and a question of interpretation of this agreement arbitration clauses as granting an arbitrator authority to decide he is or her own jurisdiction not the lawyer gets it that's here that governs this case because it's up someone has to look at the  in the lytton case that was involved in that case and there are just cause provisions that's not an issue here why this is even more compelling a case apply interstate distributors has a palace and to interpret that language so i will go back to where i started which is that this isn't in any case in all cases numerical case that isn't the issue here it's what the parties agreed to and that should be resolved by the arbitrator  there is no provision for arbitration arrogant and there is no reason to look at the arbitration clause because that is a function of contract well if that's this thing if that's the standard that's where they derive th exactly this point out is once the contract expires arbitration and that's the only source of this standard that is being foisted both on the district of nevada and the ninth circuit is that's the only place you get th standard that they're talking about and that expired with the agreement as a matter of law absent a new agreement by us to say we will arbitrary the third so called third prong of litton which i think is the second prong of  we've agreed to arbitrate it that's fine that's enforceable but it doesn't derive from the collective bargaining agreement you're saying it was not interrupting me and great they were just playing i don't know what spending what part of the great that's right they said seniority was the issue there and the supreme court said by the way a year or many years after the contract expired if you would talk about an employer's ability to manipulate they did a layoff which is a much more in control of an employer to to to try to circumvent the arbitration clause that could be timed wholly within the discretion of an employer not a discharge and they say the supreme court said we're not going to look at the substance of the agreement for that unless there are some vested right in the agreement that transcends the expiration of the agreement and there is no vested right in the arbitration clause to change forms the dispute the dispute is terminations just can't be that's the disputed there isn't it it's my cartesian analogy again there isn't any dispute until we discover the thousand and contrary to assertions to this in the future the what we are talking about here is that standard that an arbitrator looks that any discharge decision is what i described it as earlier it's simply a reflection of the steelworkers trilogy it doesn't create substantive rights like a severance or a seniority clause and it lapses with the expiration of the agreement and i reiterate you can not read the first phrase of litton with out noting that the two acts that they described thereafter are vested rights and as judge toxins and agreement to arbitra