it please the court good morning my name is jennifer simon and i represent the appellant's international union of elevator constructors and its local union thirty three from des moines this case is a suit to vacate and a counter claim to confirm an award issued by a labor arbitrator under a collective bargaining agreement this court should reverse the decision below and confirm the arbitrators award the district court aired when it found that the arbitrator ignored critical or essential contract terms therefore the decision should not have been vacated this court should also decline coney's invitation to decide its alternative arguments for vaca tore none of which were relied upon by the district court the issue before the arbitrator in this case is who is entitled to get travel time and expenses under the parties agreement it is not who is in the employ of the employer's it is not who is in the bargaining unit it is whether the parties contractually bargain language providing travel time and travel expenses applies to the circumstances of this dispute the specific dispute in this case involves alex thompson a brand new apprentice in the elevator industry who was hired by cohn a under the party to collectively bargain hiring regardless of whether he was or was not she was entitled to travel time and travel expenses who directed his travel cone a directed his travel your honor a supervisor from cone a directed alex thompson on a friday afternoon to go to  to leave his home base in rapid city south dakota and to go to counties offices in des moines iowa and to be there at seven am on monday morning the question for the arbitrator was whether mr thompson was eligible to receive travel time and expenses under the part agreement for that trip the district court lost sight of that question when it focused its entire analysis on whether the arbitrator considered the phrase in the employ of the employer that language defines the bargaining unit  before the arbitrator was not who was in the bargaining unit or who was an employee rather the issue before the arbitrator was whether mr thompson could receive travel time and expenses under the agreement to decide that question  agreement was unambiguous and therefore did not consider the past practice this kind of situation occurs all the time or did the best practice indicate the past practice indicated the union's view unequivocally that cone a pays the travel time and travel expenses under circumstances identical to this case but the arbitrator again found that because the language of the agreement was unambiguous specifically article thirteen paragraph one of the agreement he did not need to consider past practice therefore he relied on the language of the agreement the district court focused its entire analysis on whether the arbitrator considered the phrase in the employ of the employer again which defines the bargaining unit but the question before the arbitrator was not who was in the bargaining unit does the district court fundamentally erred when it vacated the arbitrator's  basis that he failed to appropriately consider contract language the defined bargaining unit the arbitrator didn't duck the issue of who was in the employ of the employers in fact the definition of the bargaining unit was irrelevant to the ultimate question the arbitrator was asked to decide there's a mountain of authority in the eighth circuit in the supreme court that arbitration awards are to be vacated only in the narrowest of circumstances an arbitrator's award must be confirmed as long as the arbitrator with even arguably construing the contract and acting within the scope of his authority in making his interpretation the arbitrator is obliged to construe agreements as a whole with the terms read in the context of the entire agreement or the part that kind of  of the district court that it was a grid as a whole when you excerpt a phrase that that may have significant meaning the district court erroneous lee conflated in confused the definition of elevator constructor with the definition of bargaining unit a district court looked at in the employ of the employers which defines the bargaining unit which is the again an issue that not before this arbitrator the arbitrator the issue before the arbitrator jointly stipulated by the parties travel time and mileage in accordance with the collective bargaining agreement and the local expense agreement and the arbitrator conducted a reasoned analysis of the text in the facts to decide the issues that the parties placed before him he first looked at article thirteen paragraph one traveling time and expense and that provision reads and i'm not going to quote the entire thing but the essential part of the provision is that when elevator constructors are sent outside the secondary jurisdiction which in this case means at least thirty or forty miles away from their home based travel time shall be paid under the agreement and the expenses incurred will be paid in accordance with the local expense agreement and the arbitrator decided that the critical terms were spent an elevator constructor present he used a dictionary definition of the term and he determined that cone a spent mr thompson when he was told to report to from his home base in rapid city  moines iowa then the arbitrator looked at the definition of elevator constructor to see whether mr thompson was an elevator constructor at the time he was sent and he did so in part because coney argued to him as it argues to this court that mr thompson was an applicant apprentice who had never worked in the industry and could therefore not be considered an elevator constructor at all so he considered the relevant contract language regarding the definition of elevator constructor and applied it to the circumstance of this case and under article two paragraph one the definition of elevator constructor is mechanics apprentice's helpers and assistant mechanics collectively elevator constructors that is the definition of elevator constructors the sentence goes on to discuss the definition of the bargaining unit but the definition of elevator constructors is those for job classifications and in the circumstance of this case mr thompson w engaged in the hiring process that the parties had collectively negotiated under article twenty two paragraph two of the agreement he was on a ranked applicant list waiting for employment he was then referred from that list to con tony dispatched him from rapid city to des moines and the arbitrator looked at article twenty two paragraph two and found that when people are referred and dispatched from the rank applicant list in precisely the way that alex thompson was are referred to under that paragraph of the agreement as apprentices the arbitrator found that under the relevant contract language as applied to the facts of the dispute presented to him alex thompson was considered an apprentice when he was sent on six hundred mile trip by cohn a to start his employment therefore he was an elevator constructor therefore he was entitled to travel time under article thirteen paragraph one of the agreement and also to expens under the local expense agreement so the union reads the words in india employee of the employers in the article two to me to define the scope of the bargaining unit that's correct that's correct so would this fellow have been outside of the bargaining unit at the time he travel the arbitrator found that it did not matter whether or not mr thompson was in the bargaining unit at the time that he travelled right but i mean in the union's view of the way the before the district court and before this court that whether or not mr thompson was in the employ of the company at the time that he was sent on this trip the provisions of article thirteen paragraph one still apply to him and the district court's decision based on vacating this award is based entirely on this failure to consider the phrase in the employ of the employers and that is mediately after the definition of elevator constructors the district court wrongly concluded that this phrase is part of the definition of elevator constructors it's not that's why it's not necessary for the arbitrator to consider instead the phrase in the employ of the employer is itself a fragment of a sentence which when read as a whole defines the bargaining unit and that sentence is the recognition clause of the agreement and the bargaining unit sets the floor the minimum for the people covered under the agreement it describes a certain group of current employees of the employer at the union as required by statute to represent and the employers are required by statute to recognize is represented and the recognition cause of this agreement defines the bargaining unit as elevator constructors in the employ of the employers necessarily got it right or wrong but just that the arbitrator is entitled to or we rephrase it the argument i thought was that the parties bargain for the arbitrator's interpretation and that should be the end of the case the parties did bargain for the arbitrators interpretation of the agreement and that should be the end of the case the district court had no role substituting its judgment and its interpretation of the case for the arbitrator's interpretation however dischord really took a final position a lot in the employ of the employer's med i thought she said well it could have and he could have meant there's good and then the problem is that he didn't even address it and she thought the failure even to address the language meant that the case had to be sent back to the arbitrator isn't that you on a substance of it the district court actually found specifically at joint appendix three thirty nine three forty one and three forty two that this phrase was part of the definition of elevator constructors ok the district court did substitute its interpretation for the arbitrators interpretation where three thirty three thirty nine three forty one and three forty two i burn will look at them the district court found that the arbitrator had ignored essential or probative contract language and that for the reason stated may please the court my name is timothy copeland i represent national elevator bargaining and so association and kona incorporated which is a member of that organization your honour's here's the problem with this arbitration decision after writing that the dispute turned on the meaning of two terms what he described as dispositive terms or betrayed or wrote that he would look to article two of the labor agreement for the definition of one of those terms elevator constructor it was the right place to go but the arbitrator changed the quoted language by removing the words in the employ of the employer's he did not have authority to do that and in fact was specifically prohibited from subtracting from or modifying the agreement that makes this decision subject to make a tour by the courts so why is thompson when actually hired by a county employee or officer and then sent to do work for conan why are they not canadian police or in counties employ i don't agree your honor that the arbitrator found that mr thompson was hired on the friday before he was travel that was certain before he traveled to des to des moines it was certainly the union's position during the hearing our position was that the supervisor said if you want this job be in the office for an interview on monday the arbitrator didn't find either way on that issue and that that was the problem he said it didn't matter whether he was hired on friday or monday that he was an elevator constructor who was well it would seem like it would matter quite a bit if you've got somebody being sent to go to work or someone being sent to go see if they can be hired a lot of people travel for a not a job interview and don't get paid unless they're actually hired and that was the thrust of the dispute there was weather and the union contended that now this is the way hiring is done and in the upper midwest when the supervisor when the when the union refers somebody to a supervisor and the supervisor is on the phone to them and says be in the office on monday he was hired that's not what the company contended happened now if the arbitrator had found in the union's favor on that factual issue although i would've consider that to be improvident fact finding we probably wouldn't be here because you say we have no facts lining at all as to whether thompson was an employee before leaving the arbitrator did not make such a finding now everybody agrees that thompson became an employee at some point i think it's fair to say that both parties going into the arbitration hearing thought this was going to be a fact dispute about exactly when he became an employee but the arbitrator took it in a completely different direction he said essentially it doesn't matter because in his  case rules or fall on the definition of this dispositive term elevator constructor well aren't you just quarrelling with his interpretation of section paragraph one of article two you're saying he got it wrong and misread that too that definition to exclude in the employ of the employer's interpretation suggests that the arbitrator actually considered all of the relevant text interpretation is not redacting and misquoting the text and then giving meeting to the part that he did quote w how do we know that he just overlooked it and how do we know he wasn't making a substantive decision that the definition he quoted was the complete definition because he didn't say that he considered that language he may have just overlooked it but that needs to be apparent one of the decisions that the union cites too liberally in its papers the elk and packaging case where the court was was confronted with an argument that the arbitrator had failed to consider relevant contract language and what it wrote was this decision and i'm quoting here contains the hallmarks of an honest judgement that drew its essence from the agreement or in another case that the union cites p s e custom this was a case where one provision of the contract said employees may only be fired for just cause and another provision that said insubordination is is grounds for discharge an arbitrator held that even though he found that the employee had been insubordinate th e the employer's decision to fire the person should be overturned under that just cause language the court upheld that decision because it said it was clear that the arbitrator was actually looking at both of those provisions which were discordant and needed to be harmonized and his interpretation what that just cause dander still applied was one reasonable interpretation of the relevant contract language even though the court might have interpreted and harmonize those two provisions differently it said it's clear to us from looking at what the arbitrator wrote that he was actually interpreted in the contract language not redacting a not wholly omitting it as as the district court noted that the error trader did hear but interpret ing at and in our view there's really no reasonable dispute that this arbitrator simply failed to consider the meaning of the words in the employ of the employers and i say that because there is absolutely nothing in the decision that indicates that he considered this clause as a section of his decision in which he quotes relevant contract language article two isn't there at all in the one and only place in his decision where he proport had to quote article article to be misquoted and left out as clause it's demonstrated in the district court's decision in a side by side comparison of the actual contract language with the arbitrator's rendition he purported to quote the definition of elevator constructor but he admitted those six words in those words have meaning well why isn't when he says the elevator constructors is defined in the list of why isn't that his decision that in the employee the employer's is not part of the definition because he only way he could get there was by subtracting contract that you're stuck with because you agreed to arbitration well respectfully i can agree that he apparently didn't agree with my interpretation of those words line announcing they're missing from the decision and there's no indication in th decision that he considered them at all he started the quote but ended the sentence period full stop without including that clause and didn't didn't indicate that he was paraphrasing or changing the quote he just know it needs to be apparent from the decision that he did and that has been we have cases say we don't grade their opinion writing and things of that sort of cases where you say that if this was simply a case of bad contract interpretation where the court would have interpreted the language differently than the arbitrator had you don't overturn the decision because the parties hired the arbitrator to interpret their agreement and as long as it is apparent from the decision that that's what the arbitrator was doing the decision stands that cannot be said of this case we think that the district court was correct to find that the arbitrator wholly omitted this phrase from his analysis the words just don't appear anywhere in the decision so we can't know how he would have interpreted it i think what what my colleague is trying to do in part in in the arguments that the union has put forth in this case is offer to you an interpretation of what those words mean they're positing a theory on what meaning the arbitrator might have meant to give to them or would have given them if he had actually considered them but he didn't actually consider them and so in the union doesn't cure that that flaw in the in the arbitrators analysis by offering fact the arbitrator took the definition this rendered a new definition of elevator constructor in took that over to article thirteen which is entitled traveling time and expenses and a review of the text of article thirteen plainly demonstrates that it presumes the existence of an employment relationship and in fact the arbitrator in the decision in the discussion section where he tries to describe what article thirteen stands for not even the arbitrator reached this determination was able to describe article thirteen provisions without using words that are  inherent in an employment relationship words like employer and employee and work the arbitrators erroneous definition then carried over to his interpretation of the local expense agreement under this collective bargaining agreement the only travel time and expenses that are owed are those that are provided for in the local expense agreements like other local expense agreements throughout the country this one contemplates expenses for travel by employees and it uses that term many times  the many references in the local expense agreement to employees but again ignored this limitation because he believed that the local expense agreement could not confer benefits on a more limited basis than the national agreement  arbitrator so i agree that it should i would submit that the arbitrators reasoning on the local expense agreement in place that it holds in this collective bargaining arrangement is not only which is he's entitled to extraordinary deference but he is still bound to write an opinion that draws its essence from the agreement and act within the authority that the parties have given him which in this contract explicitly prohibits him from adding to subtracting from or modifying the agreement i would note that when the arbitrator described his authority he even misquoted that language from article fifteen paragraph seven of the agreement emitted the language that prevented him from subtracting from the agreement it appears on joint appendix page three forty two and subtracting from this agreement is exactly what he did how do we deal with the problem that whenever a party agrees with traitors the party can characterize the decision is adding something or subtracting something green because by definition if you think the arbitrary gave more than he should have in the city he added something to the agreement if you if we take that argument seriously we're going to be doing to novo review of all these decisions because every from the review of the language that the arbitrator actually consider all of the relevant language in the agreement and frankly your honor there are any number of cases where that distinction between  our view this is not a tough call in this case because it is apparent that the arbitrator simply ignored contract language you can't you can't say here here's the definition of dispositive language and then quote only half of a two part two parts of a sentence and the quote well that's because you think that language is part of the definition but that's a disputed issue i think the language has meaning exactly what meaning it deserves was up to the arbitrator but he didn't even consider and that under the ga a hormel case is the end of the analysis in a case where it is evident from a review of the decision that the arbitrator didn't even consider the language can see my time is short here your honor so i will wrap in our view this was an exercise in dispensing the arbitrator's own notion of industrial justice or traders are not permitted to ignore plain language of the contracts they are engaged to construe their awards must draw their essence from the agreement and as this court in the supreme court has said where an arbitrator's words will manifest in infidelity to this obligation courts have no choice but to refuse and for your honor is just a couple of very quick points first mr copeland said that the arbitrator had not determined that mr thompson had been hired by the parties at the joint appendix page one fifty six the arbitrator says agreement was a new hire apprentice the arbitrator made that factual finding second this court has said in the case of stroke container corporation as well as others that there is no obligation for the arbitrator to spell out the reason for his decision or write in a standard that satisfies the court and to respond finally to mr copeland's argument regarding the local expense agreement the principle alternative claim that coney focuses on the language of the local expense agreement which are negotiated in each local union to provide specific terms for pain expenses tailored to the conditions in that local area tony first wrongly claims that article thirteen of the can of the collective bargaining agreement directs that travel time and travel expenses are both governed by local expense agreements in this case this is wrong when an elevator constructor is sent beyond the secondary jurisdiction as occurred here travel time is paid soley in accordance with article thirteen paragraph one only travel expenses are paid in accordance with the local expense agreement second kone claims that the arbitrator ignored local expense agreements use of the term employee but even the district court recognized that he did not ignore the terms stating quote the arbitrator rejected plaintiff's argument regarding the use of the term employee in the local expense agreement specifically the arbitrator held at the local expense agreements use of the term employees cannot override the collective bargaining agreement because the source of the contractual right to travel time and expenses comes from article thirteen which creates the the obligation on a national level and then direct the creation of the local agreements so that some of the details can be hashed out on a local basis having found that the collective bargaining agreement provides travel time and expenses to new hires under alex thompson circumstances he found that the local expense agreement did not quote override or limit the reach and scope of the unequivocal language of article thirteen course thank you