good morning may it please the court and danielle frank i'm alone here representing the washington state nurses association with me are my partner dave campbell and ten series general counsel for ws and i i'd like to try to reserve a few minutes of possible this case concerns registered nurses working in an acute care hospital caring for seriously ill patients they often work twelve hour shifts and unfortunately are often not able to receive the rest breaks they need to safely care for patients eight years ago with with your position there's no question in is there the hospital at all times in effect during the negotiations we think the buddy system can be adjusted to work things out consistent with the subtle but they didn't do that the the arbitrator correctly five ends that they have been complying with the settlement but then he goes ahead and says you can't have the buddy system period and the district court is will you have to consider alternatives under the buddy system the my comply with with the settlement why isn't that right well your honor what the arbitrator held in his decision was that both parties were equally resolute and their stance on the buddy system he noted that multicar was unwavering that it could work as a mechanism and that ws and i was equally resolute and holding that it did not work as a means to provide break relief so what the arbitrator concluded was that it remained unspecified there was not an express pro have bishan on using the buddy system but in the end after hearing five days of testimony about how the body system was actually working in the arbitrator correctly held that the buddy system had failed to fulfill the promise to ensure that nurses were affirmative relieved of their patient care duties and that the hospital would not allow any such mechanism to exceed the patient to nurse ratios contained in the hospital staffing plans but the buddy system has many different possible alternatives the one that was tried it was not working agreed so their head you were entitled to relieve but the arbitrator went further and said in effect nobody's system will work what was his basis for well your honor again after five days of testimony hearing from nurses and several different departments there at the hospital the arbitrator had heard several examples about departments that use the buddy system and he concluded that that system was not fulfilling the hospital's obligation under the settlement agreement he also heard testimony about other means of break relief such as utilizing a break relief nurse who would take over the patient care responsibilities of the nurse going on break and he decided that that did fulfill the hospital's obligation under the settlement agreement to provide affirmative relief of all patient care duties and doing so in a way that would ensure that nurses would not be asked to take care of more patients than the staffing plans permitted this is really a question for your adversary but i put it to you as well did the  hospital in the proceedings before the arbitrator suggest any variation in the buddy system from the one that they were using which they  thought was ok which the arbitrator film was not or did they simply rest on we think it's ok we think what we're doing is ok your honor by its very nature the buddy system requires nurses to care for more patients than the staffing plans permit and that's why the arbitrator concluded that the buddy system was non viable there was no workable way to well i mean that may or may not be but my question is will differ my question was did your have a seri present to the or trader a alternative you know was did they say we think what we're doing is right but in the alternative if you disagree here's  another way the buddy system could work that would satisfy you or did they not do that it's really a factual question did they or did they not do no your honor i don't believe they did and that was about the arbitrators conclusion that it was non viable was based on if if the panel thinks that the arbitrator or the district court erred when it made the determination that the arbitrator span of the buddy system didn't draw a sense from the settlement agreement what do you think the scope of our ruling should be your honor given the exceedingly deferential standard of review that is given to labor arbitration decisions we believe that the using the framework of whether the arbitrator's decision was plausible is inappropriate because it encourages judges to take an active substantive role rather than the hands off approach that's required given that the newly stated test in the circuit is simply whether the arbitrator looked at and construed the agreement or did he not we believe that in this case that standard as easily have met the arbitrator clearly looked at and carefully can stream of isn't th possible leeway to the arbitrator in determining whether or not there was a breach of contract or a violation of whatever the situation evolves but when the arbitrator goes ahead and says and here don't believe that's correct in fact the supreme court back in the enterprise decision emphasized that the need for deference to an arbitrator's to defer to an arbitrator is especially important when it comes to remedies and the arbitrators need use it in the same position in reviewing the arbitrator's decision and as unnecessary where this is clearly a question of law as to whether the arbitrators remedy drew its absence from the agreement i think it's important to note as well that case law from this circuit makes clear that where there are perceived conflicts in the remedies that are available for an arbitrator to award it is for the arbitrator to decide how to reconcile those conflicts the medic ambulance case is instruct where the collective bargaining agreement provided that employees could only be discharged for just cause but also provided that an arbitrator could not provide for reinstatement and only three months of back pay this court concluded in that case that where there are conflicts like that in the remedies that appear available it is for the arbitrator to decide how to reconcile those conflicts that's what the parties bargained for is that the court's ruling reach the issues of relief versus what judge recalls was talking about returning to the buddy system modifying the buddy system no your honor the district court simply reached the first question and concluded that the resolution of the arbitrator ordering the hospital to cease violating the settlement agreement by its use of the brake by the system did not drop the essence and it did not reach a second question about using brake relief nurses to affirmatively meet the hospital's obligation to relieve nurses of patient care and you think that we sitting here in the appellate court should do that in the first instance reach those questions of remedies we do  well are there factual issues to be resolved in that process as to whether the buddy system could be sufficiently modified to meet the obligation to adopt mechanisms practices or policies  sure your honor to the extent that there are factual questions surrounding that issue those are questions that clear case law establishes the arbitrator and the arbitrator alone can resolve this court in the recent carpenter's decision found that it was error for the district court to make its own factual findings about the scope of the issues presented to the arbitrator so i think the question is no there is no further fact finding the arbitrator was in charge of the fact finding and concluded based on extensive testimony based on two years of attempts to utilize the break body system after the settlement he concluded as a factual matter that it was not on viable if the hospital were to meet it obligations to provide relief without forcing earth to take on more patients than with safe and i would like to reserve some time on rebuttal unless there are any further questions now all right thank you deference is afforded to the arbitrator's decision in the labor arbitration context in fact while mall to care disagrees with the arbitrator's decision regarding breach of the contract it is not appealing that issue here but that deference is not without its limits this case falls squarely under one of the well recognized exceptions in which vacating the arbitrator's decision is not only appropriate that is required as this court recognized in the two thousand case of garvey versus follow up a little bit on the questions i put your have a story do you agree with her the hospital did not present to the arbitrator an alternative use of the buddy system that would satisfy the what at that point were the alleged but later found to be the real difficulties with it as it was then being implemented i would not agree with that characterization no your honor over five days of testimony the hospital introduced evidence and how the buddy system was implemented in different units and it was implemented in different ways for example in some units  charge nurses or management would step in to relieve nurses as part of that buddy system process and in some units it was quite successful in fact the arbitrator found that in the majority of units in the hospital the majority of nurses were receiving the majority of their breaks so this really is isolated to a couple problem units which is what the arbitrator himself recognized when you got up before the district court did you again say well we disagree with the arbitrator conclusion even if you agree with it you should nevertheless allow us to  it introduce a variation on the buddy system or was that simply something that the district court came up with by itself no i believe that was an argument advanced maybe not agreed should remain in place in the contract but an alternative remedy should have allowed that continuation to take place well how it would how would the buddy system work and still satisfy the is that if if we were to agree with the district court that the buddy system should be given some second shot what is specifically the way you would design the buddy system and it would not violate in your view so well that's a difficult question to answer in part because malta care has always disagreed with the conclusion that it somehow violates stuff and we are stuck with that given the deference afforded to the arbitrator i believe methods where could continue to be utilized would again involve heightened communication between management and the nurses to facilitate those breaks to ensure that folks are not taking on a patient load that makes them uncomfortable regarding their professional responsibilities ensuring that there is more communication between the nurses on the unit as to when and how those breaks will be taken and who is going to cover and perhaps if appropriate imposing a maximum number of patients that somebody would watch over  arbitrator in some form yes your honor i mean certainly there's quite a bit of testimony over the five days about including expert testimony on how the buddy system can successfully be implemented and has been in other health systems and the communication pieces one key part of that  so in this case ws any has referenced and heavily relied on this court's recent decision in southwest regional council of carpenters vs dry wall dynamics which is discussed the limitations on the court through view of the possibility of an arbitrator's interpretation of the contract but the key point is this case does not present a question of malta care asking the court to evaluate the possibility of the arbitrators interpretation of the contract  here we're not asking the court to weigh the evidence or to substitute is judgment for that of the arbitrators care is in fact basing its arguments on the arbitrators own factual findings regarding the terms of the contract and asking that the arbitrator be held to those findings the remedy imposed by the arbitrator did not drop its essence from the contract as that contract was interpreted by the arbitrator himself as this court continued to recognise in the dry wall dynamics a court may intervene when an arbitrator's award fails to draw its essence from the agreement such that the arbitrator is merely dispensing his own brand of industrial justice and the arbitrators remedy involves just such an action council  ws in a reference to an unpublished twenty ten decision from the circuit regarding resolving conflicts within the agreement and a couple points on that one that case dealing with a street breach of contract case also that's an unpublished decision and i believe that's for good reason it's directly contrary to published case law on our circuit such as phoenix newspapers to the extent it suggest that something to which the parties agreed to can be completely ignored by the arbitrator and here that's what occurred the remedy imposed by the arbitrator deviated from the terms of the parties contract in two significant ways the first was by prohibiting a blanket prohibition of the use of the buddy system throughout the hospital and the second was by mandating that multi character increase staffing in each and every unit of to come a general hospital before imposing those remedies the arbitrator expressly found that will take care had rejected any such terms and bargaining the contract and he also found that those terms were not in fact included in the contract that the contract reflects that position of malta care first the arbitrator found that multi character in bargaining rejected any suggestion that the break buddy system be prohibited the arbitrator further held that the inclusion of the language mechanisms policies or practices or reverse that mechanisms practices or policies in section one a one of the agreement was intended to permit multi course continued use of the buddy system those findings the arbitrator ruled them all take care ceased from using the buddy system throughout the hospital in addition the arbitrator found the multi care during bargaining rejected terms that would have imposed mandatory staffing increases and the arbitrator found that the contract reflected that but the arbitrator then proceeded to rule that each unit needed to staff and assign a specific break nurse so increasing staffing hospital  the arbitrator of knowledge of the parties entered into the agreement the preserve the rights and well take care to utilize the the buddy system and then mandated that all take your completely cease utilizing it he also acknowledged the parties entered into new grammont for which malta care had rejected buddy system there was no explicit rejection of the ban is that is not supported by the record before the arbitrator he did find there was no explicit provision the agreement regarding the buddy system but he also went on to find that even though it wasn't explicitly written in their language mechanisms practices or policies did allow for its continued use by multi character and that malta care  unwavering in its position that that that would be the case and i believe he held that language as the concession that would allow all take care to continue utilizing that that system to that answer your question well i'm talking about  whether the district court's conclusion that the arbitrators band of the buddy system didn't drop the essence from the settlement agreement and whether the arbitrators contrary finding was supported by the evidence that was before the arbitrator i know that at some point before the district court there was a declaration put in that care did reject the buddy system during the course of the party's negotiation but that declaration didn't  knowledge that multicar wanted to continue using the buddy system but there wasn't any explicit rejection of a ban and so that was the basis of the arbitrator's finding i don't believe that that is  substantial evidence before the arbitrator about those negotiations including the proposals that were exchanged and testimony from the negotiators who were there am i correct in understanding the record that the declaration that was presented to the district court was not before the arbitrator that particular declaration was not before the arbitrator that was just before the district court it was not inconsistent with the arbitrator's findings that was just presented as context primarily on the staffing issue the increased staffing issue and less on the buddy system piece of that i'd like to briefly discuss the issue of remain and two different arbitrator here that this is a situation where the arbitrator below has indicated his willingness to act contrary to the party's intent as expressed in their agreement and as as he interpreted the contract this is not a situation such as you know before the district court if you remember the case to district court judge with instructions to following a mistake of law with instructions to act accordingly the district court judge would still be subject to this court's review here if it returns to the arbitrator as we all know there's a highly deferential standard towards the arbitrators decisions and his further actions will only be subject to judicial review under really narrow circumstances so it's just another compelling reason that under these circumstances where the arbitrator has acted with such disregard for the party's intent arbitrator would you have an authority to your i agree there's no sort of off the wall standard for free man to different arbitrator but it's our position that if you look at the case law as a whole examining when remand t different arbiters appropriate there's an overarching theme of looking at whether the arbitrator will be able to carry out his duties going forward with an unbiased and and and i'm biased approach as well as following the letter of the parties here never agreed that multicar had the right to continue using the buddy system they did agree that multicar would ensure nurses were relieved and that in no case would that result in a violation of the staffing plan and the nurse to patient ratios they contained the arbitrator correctly found that the use of the body system was non viable if care was to live up to that promise the arbitrator's finding in that regard is a  factual matter that the arbitrator made that was for him to make and it was based on several well founded points the reasoning first he determined that the buddy system failed to affirmatively relieve nurses and instead left them to work it out themselves second he found that care is experts had failed to explain how the buddy system could possibly be used without requiring nurses to care for more patients than the shopping plan allowed third he found that after two years of experience the buddy system was failing as evidenced by the exceedingly high rates of missed breaks throughout the hospital and for the arbitrator found that multi care had failed to explain how a nurse could walk away from her patients leaving them in the care of her body while maintaining her professional legal and ethical obligations to her patients for all of those reasons the arbitrator found that there was simply no way for the buddy system to work that it was not one viable if  to live up to the promises that it had made in the settlement agreement the arbitrator did not find that in a ever agreed to give permission to continue using the brake by the system and multi character cannot point to any proposal the us in a ever tried but failed to get into the agreement to ban the buddy system instead multi character lies entirely on comments the arbitrator made about the parties posturing and bargaining what their positions were not what was actually agreed to or even what was proposed but the puffing up and posturing that they did at the bargaining table if that's the standard that this court is going to use to decide whether or not an arbitration award can be vacated it's going to invite parties to try to relate a gate every contract they've negotiated when they lose an arbitration taking the position that they never would have agreed to that contract if they had known that an arbitrator was going to issue a particular remedy the cases cited by care in support of the idea that the remedy should be vacated actually support ws unaids position because in each of those cases the arbitrator imposed on the parties as a remedy the very same thing that that party had tried but failed to secure at the bargaining table and here in this case multi character was the only party that made a proposal about break bodies it made a proposal that it should be allowed to use brake bodies as a specific mechanism and they adamantly rejected that proposal and insisted on the language but any mechanism used could not result in a violation of the stopping plan if the arbitrator in this case had cases i would note also that in the phoenix case upon which multi character lies it emphasises again the need for deference to an arbitrator's remedies and in that case the court used the old possibility framework which has since been retired and concluded that the arbitrator's remedy and that situation was not rationally derived from the framework of the collective bargaining agreement and was not a plausible interpretation of the agreement in this case particularly given the recent carpenters re articulation of the standard there are some no way to say that the arbitrator did not look out and construe the party settlement agreement when he crafted his remedy ordering multi character to cease fire lading the agreement through the use of  begin providing actual for relief so that nurses could take their breaks we're here today on behalf of nurses who have devoted their careers to taking care of patients and for eight years have been fighting for the right to be safely relieved so that they can take rest breaks the parties in their settlement agreement agreed for disputes such as this to be arbitrated to avoid precisely this type of expensive and lengthy proceeding yet we're hearing now five years after that agreement and the nurses are still not being relieved for breaks in the way the agreement