good morning we have two cases today the first case is brotherhood of locomotive engineers and trainmen the union railroad at all the numbers zero nine dash thirty seven seventy three and thirty seven seventy may please the court i'm jeffrey berlin i'm counsel for union railroad we're dividing our time this morning between myself and mr broder for the united transportation union which is an  the other one of the two one of these if you will jurisdiction right be happy to yeah i mean i mean i met first ask the court i'd like if possible the court's permission to reserve five minutes for rebut so you only want five minutes ok somebody should read but ten minutes then opening in five on the bottle and then if you if you want to say something we can but i wouldn't mind being in your position through remote control devices manned by you to you conductor on the ground then the railroad would have doubtful there be doubtful economics to the railroads doing that operation and the you to you by national agreement emulated was remanding to the deadlock neutral or instead was the parties we're asking the entire s b a to re arbitrator what does make a difference well your honor we know what the district court were cheery man did the case and she didn't say to whom and when a court wants to remand to agency or an arbitrator to make specific findings or to find on a specific issue than we've seen in the other cases that are discussed in the briefs how that's done the court says the court didn't say that and what the court did therefore has no other consequence but to kick the case back to the parties for such just position as they want to make of their dispute  provision in the existing arbitration agreement or in any arrangement that the parties had made or have made for resuming the concluded arbitration do you think that the language to the parties  out the lock neutral i mean don't they she singles him out and says he didn't do this he didn't do that i mean isn't that what the opinions as well of course judge should ours the the decision of the deadlock neutral is the decision of the board right and that's what she was reviewing so he said you said consistent with the opinion the opinion pretty much focuses on the one guy well what he didn't do because he spoke for the board i mean that was where the judge found error we think of course the district court was wrong and committed its own error in reversing or vacating on those grounds but the fact is that in the kit the few cases that we found and are discussed in the briefs where this court and other courts have  had sustained the employees against dismissal in that case and we don't have that here what we have is and it is a an interpretive opinion by the devil neutral on behalf of the s b a eleven fifty seven that said this is what rule ten mean article ten means an article ten doesn't apply to the situation of the district court found that that was wrong we dispute that of course but that's not an instruction as to procedure and it's not every man to the same deadlock neutral or even to the same board by stern usually usually i mean the law has developed is if there is a remained in my surmise here is that this was what is done one hundred times almost out of one hundred times  remained for proceedings consistent with his opinion and then the question in this case becomes what does that mean the law appears to be that if there is a re man for clarification or there's a re man for added evidence then th inquire formally of the district judge what she meant when she said it she's remaining for proceedings consistent with this opinion no your honor don't think you should i think you take the opinion of the district court as what it is in you review it because it's final the end appealable the fact of it is that the remain language is if anything it's gratuitous it's it speaks simply for the fact that the dispute is kicked back to the parties our interpretation of it is the parties are supposed to resolve their dispute through whatever means are appropriate for them what if you order said it goes back to the deadlock neutral specifically he should answer the question what if what if the order was very specific we'd still say that was final order because all that amounts to is saying the deadlock neutral got it wrong and if the arbitration board if the district court of thought that that her authority extended to having this arbitration board decided to take up the case again remember the deadlock neutral sat there during the initial arbitration hearing and wrote an opinion but didn't communicate it to any of the parties until there was a deadlock and then his opinion is i only ask because you seem to be assigning some significance to the fact that we're not sure who is going nothing more than a vacate and that it's a final an appealable order of the district court it resolves the dispute that the parties brought before it when billy t appealed the arbitration award to the district court what the union sought was vacation of the award union asked for a man for the proceedings or to decide another question or to take up additional facts or anything else the union said it's wrong they could and the found it's wrong it's vacated well if the district court wants to help the parties by saying ok it's back to you what we can understand that although in fact that's not commonly how it's done and i mean we've all seen many different cases  has the district court what what the court had in mind is is simply to create a sort of a ping pong advisory system that would that that prevents us from getting a ruling on whether this arbitration award should be treated as you didn't seem to do it you're supposed to do and do what you're supposed to do right why judge shikaris she didn't address it to the dead like neutral she said the award is deficient because the deadlock neutral didn't do what he was supposed to do which of course we think he did e and if in fact this was an evidentiary matter or a matter in which the word was unclear as it shows hambro and then one could understand the district court saying i don't think there was enough here to make a decision on the discipline matter or whatever that was an issue but that's not what that's on the court did the court very specifically said distant the deadlock neutral had no authority from the parties to decide what the words and article ten meant well that's just blatantly wrong with all respect the party submitted to the district court the question of whether article ten applied and to do that the arbitrator the devil the devil neutral looked at the words of the art of article ten your argument is who cares if it's far out of the question is did he answer the question of whether that was a violation of article ten of the agreement and he answered that question exactly or get what his reasoning is and jammer this court like all the other courts of appeals has said many many times that it just doesn't matter whether the court disagrees with the arbitrator's ruling indeed if the arbitrator is grossly wrong the court will not interfere with what happened here for judge  hired him to resolve whether an engine crew was necessary on every remote controlled engine and instead what he answered is whether one engineer could be considered a crew and he looks the definitional term of crew and it means more than one so therefore can't be and she's saying it's just it's so witty it's so far out that it doesn't it just doesn't answer the question but the flip the your argument is no he did answer the question was  lee held to judge him by expressly found that be a lead question presented must be answered in the negative correct there are reasons i suppose why the parties didn't argue the case that was about the issue that was the my own view from looking at the record you'll see it in the submissions of the parties to the arbitration board is that the parties were seeing this certainly the railroad was as the third in a series of cases decided by special boards of adjustment having to do with the arrangements that are being made because of technological change to provide for operation by remote control of locomotives without anybody in the cap and that's what the submissions all about when you look at the arbitration submission of the railroad it's all about whether this case is like the case on a an affiliated railroad called the elgin villian and he's starring in special board was eleven fifty one that's what they were talking about and everybody just sort of didn't focus on didn't think about the word crew and took it as that took the issue presented at being discussed as whether that article prevented the use of or require the use of an engineer in the cab no one thought about whether the rules the rules language itself could even apply for it and i think when the one judge penny got as far as she did into these weeds that's the arbitrators job and with all respect i think i think she she saw a deficiency in the reasoning and this back for additional evidence as i understand it i believe she was sending it back for the deadlock neutral to do what the parties had a dispute in the record before him that a crew could and indeed at many times was a single person she didn't send it back for additional evidence she sent it back to answer the question so i believe what you can you argue that she sent it back for clarification i think it's certainly possible that that's what she was doing yes i think by saying that the deadlock neutral and i just want to point out i don't know if if you still have a question about this but i can address why i do believe that she was in fact sending it to the deadlocked neutral not to the parties but to address your question i do think that it can be understood as a clarification in the sense that possibly she sent it back for clarification why then the sheets say that the record should be closed when i would have been a whole lot easier and you would have had to lay down hand if she had said i retain jurisdiction you mean when she said case closed in her order  administratively closed for purposes of this particular court and have would have to formally be reopened in the future and that's not what she did here and i understand that and with all due respect to judge county as well as to judge greenway  as this court has noted how a district court views its decision does not determine whether in fact the decision is final for purposes of the final judgment rule and so i think you know i also think that a statement like that sort of in passing isn't enough to run the felber passing i mean that's pretty that's pretty definitive of the the question here is let's say th goes back and the deadlock neutral reverses himself and so therefore now you're going to appeal and can they bring up at that time that back the first time around we were it was incorrect the way the court acted i'm certain if they  w reverses conrail which is addressed at length actually in our motion to dismiss for lack of jurisdiction that in fact the court specifically addressed that that after the board does its job on re man and if in that case it was conrail here it would be you are are is aggrieved by that decision it will have the opportunity to challenge the reason and order because it's an interlocutory order and under the basic rule the interlocutory orders come to the practical matter i mean  several steps ahead of that point in time well we may be but one of the basic tenets of the final judgment rule and as this court has recognized in the chassis and others is i t's a very narrow rule and if the decision isn't final it isn't final and so while yes there this is the case with many interlocutory orders you know i think the entity appealing in this case you are says  wouldn't it be easier if we could just get it dealt with now with the final judgment rule says we don't do it piecemeal we wait and once the board in this case deadlocked neutral has done the job that he was actually supposed to do in the first place which is what judge hockey has remained did the case to him to do if if you are are were to lose at that point the issue of judge conti's  but she sent it back with pretty seemingly clear instructions as the deadlock neutral here's how you're supposed to here's how you supposed to come out and that that sounds final and that and then i submit here through she closes the case like own pick i need to see this again or if it is if you want to feel it afterwards or do something it will be another george because i've done my job well actually i don't believe that and i think in fact  you your honor said this in a question to mr belin in fact i don't think she did say to the deadlock neutral this is the decision i want you to reach what she did was say you need to answer the question you need to address the issue actually presented to you she did not tell the deadlock neutral how to address that issue and that is why for example i think the reliance of of mr berlin on in his brief on the u waive his right to counsel well that was the question that the board was supposed to be deciding so in that situation as this court noted there and by the way the court emphasized that those were highly unusual circumstances and that was the only section i mean one moment it's one fifty i apologize section one fifty three forty five one fifty three and i apologize it was as well if it provides two years in which to seek review and the court may and this i do have if you will give me one moment for such further action as it may direct now remember the proceedings well to the board and at this point the deadlock neutral is the board that is the way in and remember the board in the cases of  unlike the n r a d none of the other four members are allowed to reconsider their decision in light of what she said well in the case certainly as we understand her order it was to the deadlock neutral and the way and again the reason i say that is because sta boards are created by agreement and here the agreement was the chairman not the deadlock neutral the chairman and the partisan members would hear the case they did the chairman issued an of the agreement and let's just go on to the merits for a moment it almost seems to me that you're asking us to affirm the if we have jurisdiction to affirm the district court on an alternative ground you don't appear to be was wholly baseless and completely without reason well and i think in my view that is a version of what the court said so and but obviously you are certainly entitled to affirm the district court on any grounds that that certainly present itself in the record but i think that judge county yourself pointed out that when the when an arbitrator disregards the record he is in fact exceeding his authority and he is in fact acting in a way that has no rational grounds so i don't know that we're that far away from such a problem you have on the merits i mean the supreme court has said this is about as narrow of jurisdiction as it gets that she can even answer well i think it is a ticket she can enter for a limited purpose she is not entitle to enter it for the purpose of saying he did it right he did it wrong she's entitled to think for the purpose of saying did he do what he was supposed to do and in fact this court well first of all the but again back to the question the question was was there a violation of article regards a board has to be in fact judge hockey noted this that a decision by an arbitrator that is not based on the agreement including the practices on the shop floor exceed the jurisdiction of the arbitrator and that appears to be your opponent's argument isn't it appears to be fortunately or unfortunately the law there that if you answer the question and you do it for a reason that has nothing basically that you know i got up this morning and i just didn't feel right that was my reason you can't even go there and with all due respect i would actually disagree with that i think if it is directly contrary to all the record evidence you can go there because then that becomes it may be that and that is i think that possibly could be next case but this case he answered the question well again i don't believe and he did it for reasons that she found to be not making much sense well except if you look at what he did the way he was the way he was so excuse me his actual award states hey i looked at a dictionary may i finish my response i looked at the dictionary and it says a crew cannot be won even in the railroad consequently now the question of whether a crew could be one was not before hand it was undisputed in the record that accrual in this context could very well and you're making that a question that was really part of the reasoning as well he resolved arrived at a result that you know the question even though you may disagree with it and certainly a lot of people would disagree with his reasoning and i guess our position is that in fact the standard looked at the record to determine whether in fact the arbitrator's decision was based on the record or not so it is our position obviously as a matter of jurisdiction it's our position that this is not a final order that should be here well now we got it right so we don't have relief either now i would actually say we don't because that's still waiting that we can't guess that you can substitute or suffer the deadlock nicol exactly we can't get that until the deadline neutral does his job but so what is didn't she do for you what you asked her to do well and one thing i noticed when and i think this is this is follows up on your comment about sort of the the commonality of judge conti's decision vacating and remaining back to the lock neutral of the board but well you know there have been cases where a court has simply vacated i mean and indeed i think mr perle incites a number of them in his briefs on if she had to i i mean in in my view i believe that he was his decision was so outside the bounds that he she probably could have simply vacated but she didn't i think properly in her sense trying to be as careful a remember anyway right well no i think if she vacated we would have to start all over again i think on remain and i mean i think i guess from my perspective in terms of judgment a waste question she reminded it to the deadlock neutral now what she told the deadlock neutral is answer the question we don't know what the deadlock neutrals answer will be he may still we don't know what he will do and so to say did we you know we don't know what will the remainder order the the the order of the district court which says that the cases remand doesn't tell us what to do and there's no single definition of the word remained in this context that tells us who gets the agreement the s b a eleven fifty seven exists only because there's an agreement of the parties that created it and the deadlock neutral has only one thing to do and he's done it he doesn't live and live there anymore there's nothing more doesn't have the authority to to turn the deadlock neutral in to abort the deadlock neutral did his job which was to write an opinion and put it in an envelope and that's been taken care of if the district court had said the matter is remand so it was something back to him to answer the questions there'd be no dispute we'd all agree yeah he didn't do his job he's got to go back and do that you would agree with that right i think probably but if  he if he didn't answer any didn't purport to answer any question yes other than to say i find mickey mantle to be the greatest ok but this didn't this this deadlock neutrals opinion answers the question expressly answers the question it's his reasoning that the district court had problems with but he said in so many words the question well by the bialy team must be answered when he says the deadlock neutral did not answer the question at issue in the that's wrong i mean that's where the district court that the award of the a shooting whether the you determine whether the district court edge here to the standards of review of an arbitration award and the district court did not because in finding that the deadlock neutral did not answer the question presented the district court with respect got it wrong the neutral in so many words answered the question presented its explicit it's the talk with with counsel about the what would happen if it the case goes back and the deadlock neutral fines for the for be only two if assuming there's a procedure for that assuming that like neutral hears it and and becomes an arbitrator fully vested with authority which no one's ever given him and he decides it and then we appeal could we challenge the remained in the first place and counsel said yes we don't think it's a clear consider another possibility  the end of that but suppose we win well that's what he said was had the railroad in pittsburgh charge the pittsburgh sharks not prevailed in the room and hearing before the board would have had available to it on appeal from final order on that we can't but consider what if we win in this suppose it remained a proceeding well if we win and the union appeals to a new district court judge our defense of the award is our defense of the outcome is oh yes this is a fine second a word we win that one too but it should never have gone there so we have to be arguing to a new district court that judge conti's decision is an error well district court might not listen to that for very long so we make the argument pro forma put it in the process because the deadlock neutral powers are restricted by the parties agreement and nobody has given him any broader powers than that and the district court didn't purport to and couldn't have an r v so we think that the to characterize this remained  somehow keeping the case alive for further review later on much less specifying a procedure is to deny what what's really going on which is the same as the the underlying reason for reversing the district court here which is that this is this is too much interference with the function of an arbitrator we all understand how judge county might have got there apparently did get there but the guidance from the courts from the supreme court and of this court itself is very clear that the decision needs to stand