good morning may please the court at the resnick for appellate united steel workers and with the court for a time like this or three months for a bottle that's fine let the highly court's decision which merit are so i'm st what i see is the primary grounds on which the district court decided to vacate the arbitration award was its finding that the arbitrator had effectively rewritten the collective bargaining agreement to remove the final and exclusively reserved revisionary of the way the agreement thirteen d six currently reads it has vacation bills was possible be granted at times most desired by employees changes a schedule but the hospital agrees to reimburse the employer for probable loss so you've got three words in your final exclusively you know laterally what's unambiguous about that well i think the so far as possible a sort of conflict between the two parts of the language that has to be resolved because the so far as possible has to mean something and final and exclusively reserved does not necessarily mean that so far as possible   you know the record doesn't have much in the way of the bargain in history in terms of the people who actually are part of the contract were not present from either side to testify about what it means but speaking  common in labor relations in collective bargaining that when you have a dispute about how a provision of a contract is be interpreted interpreted the two ways to resolve that x dispute or either to negotiate clearer wording that more clearly supports your position or to take the matter who arbitration and have an arbitrator decide it up until this twenty seven thousand dollars dispute the union had opted not to take the cost in the risk of arbitration this was a rare event that had very infrequently occurred it attempted in two thousand and nine to clarify the meaning to more clearly support th but it never wavered in its interpretation of what the language meant but my concern here is if you look at this language the st part of it it's a subordinate clause and then the emphasis is in the main  clause that comes afterwards and normally that that's where the emphasis is so obvious possible readings of this include well number one it might be hoarded tory so far as possible number two it might be the hospital op makes him efforts or consider this and then another possibility is maybe it means best efforts but the problem is that the arbitrator seems to have pitted it is i have to give a complete victory to the union and therefore union plays always get christmas off and supervisors never do or have to give a complete victory to the hospital and then it means nothing and why is that right dichotomy here when there's just you know a very clear readings that is that don't say basically the union gets whatever it wants well st i think it's the key emphasis here is that amongst many possible readings of this clause the arbitrator's must be accepted unless it is irrational so there could possibly be better readings of the contract that the average than what the arbitrator gave it but they would not justify the district court's decision to how his they could be all right or not gutted the final right and exclusive reservations here how is the arbitrators reading possibly consistent with those phrases will he so here's an example i think would be where there is still a final exclusive right to the hospital is that if an employee were to request a certain vacation date and the working supervisor working across the same vacation day and the hospital work to say we are we what we are given a preference to the supervisor here that employee would not be permitted to say well the collective bargaining agreement says i'm entitled to this vacation date so i'm going to take it off regardless of what you're telling me i have to come to work that would be in attendance violation would possibly be in i get my preferred vacation dates so far as possible and that isn't what happened here and what but you are not denying that the arbitrators reading means any time a union employee does not get exactly what the union employee requests that union employee should be able to file a grievance and succeed on the grievance so there's the final exclusive elected hatters well no i mean for the language that so far as possible are being union employees are to receive their preferred vacation dates that language has to mean something but hasn't it made something if you say and for decades this is only come up three times doesn't it suggest that over the course of that forty years so far as possible the hospital is is according this i mean i think i think you'd be in a better position if the hospital was routinely denying requests but the fact that they've been you seem to admit maybe there are a few of these instances over four decades does not suggest that so far as possible being satisfied and then there were three decided at this point to pursue the matter to arbitration when it had worked to informally resolve it in the past you know it's a union seeking to enforce the language that it was here when you look at it meaning you look at this language to the beginning because the clause before the summit calling for the sentence clause vacation will as far as possible be granted at times most as are by employees if you stop there you got a case but then it but so now we have an override but the final right is exclusively the hospitals i want how you can write it any more clearer than that where you c remove you could remove that profile entirely would make it more clear than that now which is what it's saying is we're going to triple to try to work together to the extent we can and at this point you have two employees wanting off and they picked in this particular case a christmastime to supervisor but i don't see the ambiguity in that writing whatsoever look i can see that arbitrator decisions are it's a very low bar to over to affirm them they get affirmed unless you in effect go off the reservation and for the arbitrator here to bring back in something that has not been in this c b a for forty two years doesn't make any sense well st if you look at the facts section of the arbiters opinion  previous agreements it was part of his factual findings that i'm looking at to highlight here is the arbitrator there's a mistake in the district court's decision about whether the arbitrator had found the contract was to be ambiguous the district court i'm not seeing it then the arbitrator was wrong to be considering this and you know how how can you sell bridge that interpretation if it went off on that wro is addressing the various arguments that are raised by both are ok so i have a follow up and you can continue into the red light time which is after the discussion of the language at appendix  sound like i'm pontificating on my own wise policy views that is not the job of an arbitrator not at all clear to me how that derives its essence from the agreement isn't that a sign that the arbitrator is going well and fifty seven just looks like i'm i'm being king solomon and offering my wise user how to split the baby i would say that as long as that is a rational interpretation of the coming from the language at all how does that policy split the baby intuition come from this language it is guidance for how the possible how the hospital can comply with its obligation to grant preferred patient dates to burn unit employees so far as possible thank you thank you just over cordon articulated my argument the language that is the critical issue here ok well i thought one of the points that your adversary made was some force is operating needs situations are different the language allows for differences and yet the arbitrator says that you never argue to harbor operating needs below you rested soley on this language and it would be a different case if you had articulated d some difference that a supervisor makes a supervisor may have different duties and supervising other employees but you didn't make that argument below did you your hon we did not make an argument because the language is very clear the hospital has the final and exclusive right to determine whether it is possible to grant the ready cation requested cause or what but it's really before us today are we looking at a single employee it's limited to mr consider or does this deal with a policy of blackout periods because there's an indication in the record that that her request and denial came during blackout periods where there was a different understanding between the union and hospital without who had priority and when what was to happen during that period where your honor at before and then years or year before this particular agreements a road the hospital did have a policy of blackouts that is not an issue in this case the are the hospital has for forty years as was previously noted exercised its right final and exclusive right to schedule or change radiation and a manner which always giving preference to the employee over the bargaining unit employee over the supervisor but i don't think you need to read the arbitrators award that  is about it's limited to the situation with the duties and responsibilities are identical to the working supervisor and it's not clear to me that this means that the employees always get christmas off whenever they request it if the district court overread the arbitrators award isn't doesn't that suggest we have to reverse the district court and we could affirm a narrow read we could reinstate a narrow reading of the arbitrators award you whether they had identical duties and responsibilities well the if they did not have the same overlapping duties the hospital has that has done for forty years would gran exported to a period when a supervisors wishes could prevail over unit members desired vacation folks again your honor the there were no blackout form and there were no lockout period although even if that had been the policy that we did issue in this particular arbitration it would not override the far no exclusive right of the hospital to make the appropriate allocation grappling with the extremely deferential standard of review that we have here you don't deny that this is this is more deferential in an ordinary contract right agree kind of law the shop might even let in some extreme sic evidence here so if we're looking at this so far as possible language and the arbitrators basic concern is your turning it into surplusage isn't a reading that if it se to give some meaning to it at least deriving its essence from that phrase maybe you got it wrong maybe it should have been subordinated maybe the but in the main clause should have overridden it but why don't we defer on to this extremely specifically saying the hospital have the final management right and in that case the other trader substituted his own brand of industrial just apply the language not the parties agreed to but i wouldn't and i'm sorry but my question was isn't the arbitrator's opinion award fundamentally turning on and by the way we can even hypothesize reasonable grounds on which it would have rested but look at what it actually did the the centerpiece of its ruling is we got to give some meaning to so far as possible and this is a way of making sure that so far as possible has some bite because appendix forty seven dollars says concert was not an affected employee so there are blackout periods here that look like a black backdrop of this dispute and the arbitrator goes out of his way to to say you shouldn't do that but it looks like it's not the particular a particular operational requirement but it's addressing blackout periods more generally has as much of the language here seems to be doing well certainly your honor as as the as  any grievance an individual or individuals are involved but the nonetheless this award should this court allow it to stand would require the hospital to give up its absolute final rights and only den entirely sure that i would agree with you that even a blackout period would violate the hospital had may have a number of reasons to decide whether to use a blackout period that if again i am if that had been what happened here then nonetheless i think that would have been within dispute specifically or is resolving a broader vacation a grievance of which you know she's just an illustration help help us understand you're reading this i think the all of these disputes were seen as representative of this disagreement between the bringing this case to the arbitrator one issue i'd like to address is this idea that the need to be a case by case determination of how the hospital had addressed things in the past and the suggestion that well of this only happened three times over forty years then wasn't this being done in a fair way well once the issue is brought to arbitration the arbitrators award is going to change that one way or the other up until it was brought to arbitration the parties had an incentive to compromise on a case by case basis because neither party wants an arbitrator ruling against it and strengthening the hand of the other and once this case we just the arbitrator he would be creating a circumstance where the hospital going forward could deny every vacation request by a bar unit employee and claim it had a reviewable right to say well that's not possible in this instance and so he needed to give with the arbitrator's readings so far as possible anticipate said the hospital is going to act in good faith in allowing a vacation if there is not actual conflict with the same duties a nd taking into account other circumstances about if people have had different vacations more recently seniority accent or on multiple factors at the discretion of the hospital i think if you read any type of limitation on the hospital's ability then you have to accept the arbitrator's interpretation of how that applies to the question that was put before him the only way that you can affirm the district court's decision is if you find it that what has to be read into this is that the hospital's acting in good faith and and that's the reason that there's any ambiguity is that really so since a good covenant of good faith would be read into the into the contract no matter what does that really create ambiguity a reason that we would need to accept the arbitrator's a word as a rational young her language can question her it sounds like you're arguing that if we see if we see any any room for interpretation around the the phrase so far as possible that we must accept the arbitrator's interpretation  and my question is is is that what that really room for different views of what that means since the covenant of good faith would be read into the contract in any  that is that that's not it any any potential ambiguity that opens the door or that something is to hear it in the contract i think i think good faith is one limitation on hospitals