in this case michael mackenzie a union driver for c b s trucking was obligated to take united states postal service mail from one terminal to another and he didn't and he did we now know that he lied about it he lied about it not once but consistently to management it was a proceeding at which he was represented by union representatives in december of two thousand and eight and he absolutely insisted that he had made his trips he made all friends he was lying again he insisted that the company go get additional information records e z pass postal service records they did they decided that they had good cause to terminate him because they knew he was lying in january after is terminations a grievance proceeding he is again represented by the union he again insists again he is lying the company affirmed this decision to terminate is the situation and that is the issue and those are the arguments that should have been presented to the arbitrator when the union file for arbitration it didn't happen instead mickens knowing that he was as we put it dead in the water with an arbitrator if indeed consists consistently argued that he had made his runs decided to change his story but to do so he had to engage in what judge johnson found to be a fraud because over a period of months from the beginning of the arbitration hearing at the end of july he hid from c b s tapes that he had secretly made by the way against company rules but that he had secretly made unbeknownst to his counsel  appendix which showed that in fact his predecessor counsel had in writing demanded all the evidence that we were going to rely upon and we have certified that indeed we requested all evidence that they were going to rely upon t outside counsel have not been able to find the letter that they believe was sent through mr porter then the counsel for mr mechanised but i don't think there's any challenge in the record so the fact that twenty something years ago i was in an arbitration and i remember that it was with i then chief judge who i adored the judge sites and that the company was entitled to fire an employee who had been drinking and they showed he had been drinking and they fired him and the arbitrator said put him back and i thought how can you do something like that that thompson followed the arbitrator isn't that the whole point of arbitration whether a court thinks it's unfair or think it's wrong things he's not a nice guy thinks he lied and arbitrators make bad decisions and they sometimes do we can live with that that's the essence of the collective bargaining process and the grievance process in other words the arbitrator listened to the tapes and still will be against you you could live with  i think i think we could have your honor the fact of the matter is it's inconceivable to me that the arbitrator could have listened to the tape is just over which is seen lately they've been some sort of equity some sort of  that i have no do not know the facts but it does not appear to me that that was a frustration of the process of the arbitral process and then of the judicial process in this case lies in the arbitration proceeding or in the process leading up to that arbitration proceeding and frustrates it and it is demonstrably that he lied and he engages in fraud which is what judge heard the tapes which reflect mickens and as is conceded by the way by the union representatives being surly being non communicative refusing to even sit down at the griev and then lying flat out about it ok the arbitrator couldn't have decided the way he did but in any event your honor i submit that the fact of the matter is under ten a one arbitration appreciate judge judge that civil proceeding was sued by mc in this and several other minority drivers for discrimination ok it was pending in the superior court we saw at the sky every any number of times as your honor has indicated and mr mickens intentionally held back those tapes in the civil proceeding as well until october of two thousand and nine after the completion of the arbitral proceeding and at a time when he thought that the tapes would be helpful to him in the civil suit that was pending and it came up during the process of deposition discovery we suppose you have tapes and he acknowledged it and his counsel because she found that there was fraud but that we weren't very late to an issue in the arbitration but not have a cause a relationship with the word itself well first i submit that that is the test that it that it must relate to a material issue and i submit this actually says procured by your honor i think that you that we are unable to read the mind of the arbitrator we have to look at the record and we means by cost takes related directly to whether he did or he did not perform what he was supposed to do which is to take up the drug that's correct your honor and your honor we submit respectfully that the concept of undue means which is this jumped of in the statute twenty one should be considered separately by the court and we have knowledge that that has not historically been the case courts have treated fraud in undue means  to there is no record of the arbitration proceeding itself in house personnel from c b s were handling arbitration and i think we would concede that they brought up the fact that mickens had previously said that in fact he had made his runs here on a one final thing i would add is that that is what the arbitrator should have been looking at it's clear he went well beyond that but we  argue the issue of the clock stops but it is such a basic principle of law that the abra traders should be looking at whether the employer had good cause at the time of the decision to terminate not sense the union that's right around before i respond to some of the points raised by a counsel for the parent i'd like to clarify a point that i don't think was entirely graf's by the district court the degree of discovery the takes place in labor arbitration the district court seem to accept the employer's position that there's a but what i do think is that in order to saddle mr americans and the union in this matter with a duty an obligation to have produced discovery specifically these tapes that we're talking about they had to the very least have been that the employer has not produced records of of their request and so you're not conceding that a request that the made that's exactly correct more had been made numerous times before the arbitration where had those that's right but it's worth pointing out that in that the mr mickens behavior and that separate sets the court action was dealt with by that court and as i recall he was there was a fine a sanction for that misbehavior but the thing is i don't want to read too worry before the arbitrator well to your point it's crucial to recognize that the tapes were of the december zero eight meeting and the january zero nine meeting these weren't meetings over at the union hall between the business agent and mr  said take him back and the district court said you know you lie and it was fraud and i agree with all that but it was a fair arbitration was a fair hearing and so i'm going to follow it because that's the really is that it's one thing to note inconsistency is that were brought out by hearsay because it's really the employer's and we had a hearing before and this is what he said but it's quite another thing for the arbitrated to be listening to the tape itself to be listening to the employee himself on a tape on two separate occasions saying completely destroy different sources and that's what the arbitrated did not have the opportunity of doing and that was because to do so and if this is a case where the information on those tapes was something that was unknown to the employer they had no idea about to make some statements that they realized the first time after the a penny was rendered to be a completely different scenario but again as you no position than you did at the beginning when at the beginning you made it sound to some extent as if you were defending mr mayor i don't think he's the principal at all i wouldn't have said take him back but the question we what does the court system do when it's dealing with an arbitration that we think is wrong but that still part of the system yeah and now you're getting to that and you didn't at the beginning  noted it's just that the arbitrator looks at the at the employer's decision at the time that it is me right and if if we freeze the suspend reality and freeze the clock and look at it when they decided to start mr mickens what did they know well meetings they knew with the demeanor he had in the room as surly or inappropriate as important pens it was but they knew what he said they knew what he claimed he had done and hadn't done and so even if the clock st applies which i mean i'll leave it to the court but the there's nothing new that came after the clock stopped other than hearing his voice itself as you know and do you know right now i have a question do we know whether at the arbitration hearing itself the employer argued the clock stops doctor even raise the issue to highlight it for the arbitrator i can't answer th question either way one thing that do you think it's fair for mr mccance to receive back pay for a period in which he also received an employment compensation  arbitration and so wasn't clear whether it's even part of the record so that it's a cloudy area but i think and think about it from a different perspective mr mickens has an affirmative as a legal obligation to reimburse unemployment limitation only difference the only result from what the fraud cost was where you can be a huge difference is they presenting to a jury hearsay testimony were presented the jury the actual testimony of the person in his opinion that the lack of substantial not hearsay testimony from the employer something that he based his opinion on another word the arbitrator knew that at the time of the hearing at the time of these meetings he gave one story now is given a different story at the successful to date to corrupt the arbitral system this is it this is a man who flat out lied at the time when it was critical that he tell the truth because the employer was making the decision in december in january of two thousand and two thousand and nine as to whether it had good cause it should not then the submarine seven months later at in the proceeding by mickens for the first time coming up with a new story and at the same time hiding evidence refusing to produce evidence that would have completely undermined his new story that's what happened here and you have hundreds of truck drivers at this company who are unionized drivers the ten a one is a but for test i don't i submit respectfully that it is not a but what test that the past is whether he fortunately withheld evidence which related to the material issue of the operation that's the test and i said it has to be a causal relationship between iran and the word self and iran i think that the language of that test is the appropriate language i think that for the courts to be looking back at an arbitration proceeding to determine whether it's but what is extraordinarily difficult when there are no records made up the entire arbitration proceeding in the life i think that that should be applied here i think too that the three made what i thought was a very interesting comment with respect to the manifest disregard issue and he said in that case that with respect to the decision in of the nielson the language that he used was in essence that that it would be sufficient that the facts install the os would be sufficient to show manifest disregard by the arbitrators when they determined that the interpretation of the contract stalled meals and was such that they could order class arbitration i think that if you apply the stolt nielson if you first find that