and the correct way and they say the class name is right there the correct way to say the company's name is what it's delicate refining limited thank you may proceed good morning your honour's may please the court my name is michael bush and  agreement because the arbitrator changed altered materially the terms of the collective bargaining agreement in violation of his limited jurisdictional authority thus the award can only rationally or logically as a standard requires its essence from alternate version of the collective bargaining agreement and not the one for which the parties bargained and agreed secondly the portions of the collective bargaining agreement that the arbitrator ignored and refused to apply there by altering the agreement were plain and unambiguous requiring that they both by the terms of the c v a itself and the controlling law that they be applied in keeping with longstanding cans of contractual construction as written given their plain every day meaning in conjunction with all related provisions and third on a different issue deli challenge to the underlying award is and has always been grounded in the manner in which the arbitrator exercised his limited jurisdiction that is not a challenge to the factual findings but only to the legal issues that expose his infidelity to the narrow jurisdiction granted to him by the parties and his failure to act within it in that way del exchange is not frivolous and is not without justification as such it does not warrant the imposition of attorney's fees under the applicable standard turning back to the first point on the particularly i believe in cases under labor man relations act section three zero one the specific facts of each case are more controlling than attempting to resolve the case by way of application of analogous cases and i find that particularly true in this case because in all of the cases that we've cited to this court there's that the union has sided in those dump on which the district court  lied i've yet to find one that really matches the facts that we have here today so i would urge the court to base its decision on those unique facts alone i believe the district court clung to tightly to the two cases that it most analogize this case to those being folgers coffee and resolution performance products both of which are distinguishable in significant ways from this case isn't this case actually i'm a better case for a ruling like the one the arbitrator made requiring the use of regular employees because in in resolution performance my colleague wrote i don't know what it says i'll  safety or environmental reasons the company shall offer all this work to bargaining unit employees prior to utilizing contractors and then there's another caviar provided such use of a bargaining unit employees does not result in excessive overtime but it seems doesn't create a presumption the bargaining unit employees will get the work in less extreme extreme economic environmental issues exist or it's excessive over time i don't know that i would rea a presumption your honor not particularly when you read section eight point one in conjunction with the management rights clause that reserves everything is not specifically limited in the agreement to the company to decide that you don't think you had a proven before the arbitrator that this would have caused excessive overtime or extreme safety concerns if you had hired bargaining unit employees starting with your honor's question that we did not have to prove that or that we are right you're saying you didn't didn't you have to eat i read it to say you had to prove that you were to go before the arbitrator and say yes we know what a point one says but this is a case of extreme safety or excessive overtime so we were allowed to hire contractors first respectfully while we're not challenging in fact finding we did prove that our prove on both of those points the opening and closing costs of that sentence the only record evidence was put on by the company and it is unimpeached in unrefuted in any other part of the record and  to your point as well the arbitrator made no finding that that that was not the case right he made no finding that there was not and that it seems to me your argument is really more about a lack of findings then with all these other cases about which is what is the and a violation of that mandate and that's what we're really arguing he took unlike the limitations that the court found in folgers coffee that were found in the collective bargaining agreement this the opening and closing sent clauses of that sentence read them out of the agreement those clauses create additional rights only after you were in he quotes the full section eight point one in the original ruling you then and ask for a clarification about does the remedy apply just during the preparation stage or during the actual work stage you want challenging anything about oh this this should have been excessive excessive overtime or extreme safety so then he does shorthand d but that you think that first clarification where you're not even raising this particular issue is telling on what his his interpretation of the contract was ultimately i do your honor and the reason is at that point we reserve the right to make the challenge that we ultimately made and the reason for which we're here today at that point there was a an opportunity to resolve the matter we reserved our rights and we're trying to understand what the arbitrator was saying the principle award wasn't sufficiently clear on that point and only after we requested clarification to the arbitrators real rationale in real mode or method of interpret section eight point one become clear when that became clear we asked him again could it be you quoted just this central part of that sentence an eight point one and effectively made it mandatory you read out opening call as you read out the closing clause without any findings that neither applied and instead relied upon the parties intent without any finding of ambiguity and betrayed the principles of law requiring him to apply those those clauses the plain meaning of those clauses and give them effect in keeping with the rest of the collective bargaining agreement i will let me ask you about how this was presented to the arbitrator i did not find any written first in the last clause as of this first sentence of article eight point one so is that even under consideration it should have been they seem quite central but what could we find in looking at the record that would tell us that the company actually pressed this upon the arbitrator that this is a matter because diem economic safety environmental reasons or this would have been excessive overtime we found a brief mention of it in the transcript but where is there will effort on the part of the company and i'm not saying it's not there i'm asking where do we find that this was squarely presented to the arbitrator this is a case about the first cause a last cause of that sentence and didn't see those in our new show it will that i'm just transcribed record record is that as it won eighteen and the principle ruling is that one seventy and i don't have a pinpoint saying one eighteen is where we would post that's one of the writer briefs that's my cite for the transcribed record of the hearing and then his principal ward was on page one seventy presumably in in those two and also in our exhibits i think to the but the import of the opening closing clauses of section eight of the sentence and eight point one that were focused on in this case did not become as material until the arbitrator indicated that he was applying only the central clause and applying it in a only thing you need to apply if you haven't press upon him that this is a safety environmental economic matter or this is excessive over time and that a sort of asking where do we find if you did it because we don't find it in the transcript in the transcribed record actually your honor there was testimony presented by the refinery manager louis le bella testified about the extreme safety issue in particular in that a lot of the welding required to accomplish this vessel replacement had to be east done by certified welders which delhi didn't have that was taken into consideration the planning as to the overtime issue he testified similarly about the number of contractors and economic impact that paying over time in keeping with what would otherwise been the mandatory provisions that the arbitrator cited would have cost the company and so that's the that's the testimony that we refer to as being unimpeached and it was frankly not countered no countervailing testimony was presented so if if your search is for something that that should have made clear to him that the opening and closing clauses are at issue and why we did what we did it's in the testimony within the the arbuckle record then you need to put that test morning context for the arbitrate i will look to see if you did that but keep on i did see that testimony where the the your manager talks about the overtime but i mean i read him to basically be saying which is logical that any time there's overtime that's going to cause is going to be an increased cost on the company and isn't in the second clarification you saw that's when the arbitrator comes back and says well  was articulated by the the witness for the company would mean that any overtime is automatically excessive overtime and that's why he says that would read that out of the contract respectfully your honor that's not exactly what he said what he said was  those two clauses didn't apply he found that that clause the plain meaning the plain words that that clause embodies couldn't be what you really meant in this language that you bargained with the union for that both sides hard bargain for the opening and closing clause or because your witness said any time there's over time we're not going to want to hire bargaining unit employees first visit i don't expense in that that ignores the word excessive but that was in that that wasn't exclusively within the scope of a major turnaround such as this the parties have it if it's if there is daily overtime to be worked in the company has the has the maintenance capacity to do that that testimony was they do that management are scuse me making its employees also worked overtime on this on this turnaround but in a different way and that that was never you know they were the union was involved in the planning the whole way through and never was there an objection about the degree to which the company was going to use regular maintenance employees in the bargaining unit and pay them over time that seems inconsistent with the with the adjectives in the article eight point one which talks about extreme and excessive  and your so it seems to me as more than just normal inconvenience and normal inconveniences whenever you need overtime or whenever there's a new project this is talking about something extraordinary which you arbitrator get gets to interpret what all that means and choose me your evidence is mainly dealing with there are so many difficulties here but the article it wanted require more than just one of the male difficulties and that's that is the exactly the evidence that we put on your honor this was a not this is a project planned for i believe nine months during which time everyone collaborated union and company and how it was going to be accomplished the issue that we have with what the arbitrator did was he didn't find that that put it this way if he would have found based on the evidence i find that it was not excessive we wouldn't be here on that clause if you would have found i find that that there was no extruding safety or environmental impact i wouldn't be here what he did was to say because of that ten show impact on future over time which was not before him i find that the central clause an eight point one is mandatory and it applies every time to rob the parties of that bargain for language is beyond his jurisdiction it's beyond the very narrow jurisdiction given to him which is to not alter the agreement in any way see that amount of time you don't think you'll have some more time later the parties have briefed on the lower courts have discussed when you're dealing with a sub contracting issue there's kind of a a scale you've got a collective bargaining agreements that specifically restrict  sub contracting with some language like we have here or some other you have cases where there's no restriction on sub contracting and you have cases where it's right to subcontract i mean there are the two cobb yachts that the court has been discussing here this morning the extreme examples of the excessive overtime examples those are  restrictions on sub contracting and one of things that concerns me is that previous questions may raise it is is it wasn't until the third effort to explain that the about i'm not saying this is unambiguous but he does ignore it in his reasoning until the last effort to explain it would you correct me on that isn't he ignoring these provisions until that last explanation i don't believe he's ignoring these provisions and i don't think that i mean certainly you can argue that but you could certainly argue the opposite of that because he did said it we're not ignore he leaves unexplained his reasoning to those provisions until the last effort to clarify i don't disagree with your honor on that but i don't think there's any requirement that he explain that that's the that's the point when when the when this court looks at all the prior precedents established by this corps and by the u s supreme court there is no requirement or obligation for the arbitrator to dot every i and cross every t and explain every clause and explain his reasoning we must be convinced at least in some way except that he did not disregard something and he certainly didn't get much we gardened his explanation of the the test is whether he is arguably interpret in the collective bargaining agreement a rationally inferrable from the collective bargaining agreement that the company violated the sub contracting provision and certainly that can be determined by reading his award the two clarifications i think the company really makes too much of those and i think the lower courts made that same observation because what the company is doing here is exactly what the supreme court said the courts  should not be of any they are attacking the reasoning of the arbitrator they called his methodology analytic failure and disagreed with his interpretive methodology and that's not the test for the courts to review the narrow narrow review of an arbitration ward you just look to see if it's rationally in from the collective bargain agreement charms and i think that's clearly the case here because there are restrictions in this particular sub contracting clause it doesn't say the company shall have the exclusive right to sub contracting way that we're talking about it now to the arbitrator oh good the company at the time of the arbitration itself and in post arbitration briefing actually make these points about article eight one that i'm making now i don't know about the company's brief but the union's free is in the record we attached it to one of our briefs it's a record two eighteen to twenty five that was the union's post arbitration brief and the union had always taken the position that the excessive economics or the extreme economic conditions or excessive overtime was not of viable claim by the company i don't recall specifically how much the company hammered on those two issues in the arbitration itself but you would say it was before the arbitrator and this was no absolutely was if it wasn't then you got a different company has a different problem but it was before they went i don't deny that it was before the arbitrator the arbitrator recognized by citing in my view the entire clause in his original word as the courts pointed out here this morning and just because he didn't talk about every paragraph doesn't mean he didn't consider it but if it was to keep paragraph the key language being asserted and it's you know i don't know if it was but if it were it's very odd that he didn't say you know even back in his hand but something to explain why the key argument not some incidental argument not some footnote we're here today because of the first and last clause of that article talk about the arbitrator right now but anyway we've got to review the standard that you've explained to us of what we're looking for but does seem like an odd decision to me well unless this was an incidental matter for the arbitrator not key to what the arbitration was about but there is no requirement in the teachings of the supreme court and even this court's following of those teachings that an arbitrator dot every i and cross every t and comment on every particular to make findings oh could have just said i rule for the union one sentence yes he could but what supports what support do you have for that well i know there's case law to that effect i don't have it off the top of my head your honor but i don't believe that there's any requirement of that now when you know you would have to look at the collective bargaining agreement and see if there's some specific language that was clearly not followed for example in  delta queen that case was a careless case and in that collective bargaining agreement specifically said carelessness was just cause for terminations and in that case the arbitrator found no just cause so if the arbiter had just ruled for the union the court could determine by looking at that ruling and the collective bargaining language that clear language was ignored looking at this case you can't determine that because there is no clear language as the court said the word excessive is subject to interpretation the word extreme is subject to interpretation and the fact that the arbitrator didn't make a written interpretation of those one cannot assume that he didn't consider them it's just like in delta queen where the court made reference to this inherent finding this implicit finding so i think the court can take this over critters word and say well we the oxford case those awards can be good bad or ugly and certainly the company has emphasized its ugly to them but that is not the ground for overturning the board and we also think the attorney sees a provision was justified and that's reviewed strictly on abuse of discretion and the challenge here was not justified because the company is just going into the arbitrator's rationale and that's beyond the scope of review for enforcement of arbitration warrant of the teaching of the supreme court and under this court's teach i may just to focus back briefly on the language in the second clarification that exposes the real issue that we see here the arbitrator his own words a record one hundred six to reconsider would have the effect of making section eight point one meaningless instead what he did was rendered meaningless clauses that he could put that the parties bargained for if he could and he used plenty every day to construe and apply he didn't do that in doing so he altered the agreement which is an expression violation of his jurisdictional mandate i isn't a plausible reading that he was responding to your argument that there's always going to be over time so you can always use sub contractor  saying well then this whole clause would be meaningless because it's always there's always going to be over time so it would defeat the rest of a point because that's a right for which the company bargained and one for excessive overtime not for any overtime the right but if the company finds based on its operational planning if it's in to to use this example it's planning for the shutdown that to pay every one of our maintenance workers overtime whether they work or not because we paid the contractors overtime when is that ever going to be reasonable the company you believe the company has the absolute right to this i would excessive overtime is that the c v a doesn't give the arbitrator that that decision to make the unions own witnesses admitted that the company has that right then there's no countervailing evidence in the record in iran and that's why this that piece of it that clause of it was so difficult for us to understand instead of seizing upon the evidence that was given to him he decided to alter the agreement and in again  argument is the conformity of what he did with his jurisdictional mandate not his fact finding not the manner in which he went about this it's i know it's a fine line to draw but when the law is that all portions of the contract need to be applied together when they're in want to greenman and discovering the same topics and the law is that you  can't read one piece without the other and then someone does that the arbitrator does that by virtue of simply discarding one of the critical pieces it's impossible to see how that does anything to fortify the fidelity of that that undergirds this the federal labor policy favoring arbitration if all an arbitrator has to do is either in saying so or not saying so declare something in big us and invest them to himself the right to do whatever he wants that destroys the principles that that that support federal labor policies favoring arbitration it destroys the deference the reasons for the deference that this court supposedly needs to give to arbitrators awards there to pay the same fidelity to the rules of construction that this that a district court works would or another judge would when they produce when they betray the jurisdiction that the parties bargained for and gave to them and in this case it includes the word specifically altering the agreement which i don't know how we can find he didn't do he's violated that jurisdiction and exposed his ruling to both judicial scrutiny and bake a chair is that the company's was ition that you also had unfettered discretion to decide on the first clause of article one whether something was extreme in the economic or of safety sense and that also is not reviewable by an arbitrator i'm not saying that we we have the exclusive right i just want to what's different about the word extreme and excessive on overtone and why the two both are ambiguous to the extent you're talking about words that are indefinite that suggest a certain we would again not be here what he did was different he read that central cent in that central clause as being mandatory without consideration of the rest because he found it he found it he found distasteful the fact that the clear excessive overtime and that's all that's in the ball game folks well i thought i'm sure we denied the grievance but you know you didn't challenge that this was subject to our the arbitrator's decision no no no you're right we agreed to the arbitration clause it's in the contract and that's what we do but but the but to have an arbitrator i see my time and each as your answer i can't get past the fact in the company can't get past the fact that that simply by changing the language the arbitrator reached this decision that's not what he was empowered to do and doing that the trade every jurisdictional principle that he had in this case but you are going to one quick question if he'd said no there was no the overtime was not going to be excessive you'd still be saying that's wrong decision of the power to make that decision if you added that sentence to his award i'm going to understand your i'm sorry if the arbitrator said in his award i find the overtime would not have been excessive would not have been