confirm an arbitration of war which is a summary proceeding courts are highly differential to arbitration words especially in the labor context in part because the parties have bargained for the arbitrator to render their decision on these disputes  not engage independent fact finding and she confirmed arbitration award so long as the arbitrator was attempting to interpret the party's agreement here the court did engage an independent fact finding in fact they say that thought that they said something along these lines after the board decided they panel decided the the the issue and then when they got up after the second in terms of solution they said something like we never actually agreed to  this not sure i know what you're referring to but the district court does say i think it's this of course premise was that they didn't isn't right and then they went on to say that they cannot consider this evidence because it was new and they know they knew that they were not the fact finder however negotiations a fact that they said was new and presented to them for the first time and also because they said that drywall never from nearly agree to two thousand dynamo you which you also said was raise for the first time before the the necessary for the necessary ness for stability versus voluntariness in participating in these military bargaining agreements the court went on to say has to do it case by case analysis for each situation between the relationship between the union and the employer association so it should look to the bargaining history and should express agreements between the parties and if there is any intent or anything that could be interpreted as intent by the part on the part of the union that the employer wanted to be bound and these facts they do favor a finding that the two thousand and nine and the u a e is binding upon it is fact my policy and i mean this court has been and the supreme court have both been extremely tough on what is a sufficiently well established and vomited policy to meet the public policy standard and what exactly public policy does this meet the standard quite aside from any fact fin policy that would meet the standard i don't think that it is it's not it's not based on any statute it's not based on a constitutional right and that's that's what it's a quizzical another one just not even a policy that says you can or can't do something  itself to not military specifically against a policy for voluntariness because dry well it did voluntarily signed the signatory agreements it voluntarily decided to take the reduction in the contribution rate it voluntarily decided to delegate its authority to bargain to the employers association so even so it yeah i don't it would not meet the public policy exception to overturn the award  as far as finding that the agreement was an impossible interpretation of the parties agreement is a possibility in the sense of in colorable senate what exactly is the language instead of it now is hooked into the it standard and it sounds like that's what we're doing is that what we're doing here i would say that it goes further than that because in a lot of the in a lot of the decisions regarding when they describe what is possibility and when should a arbitration award be vacated they say that it's not a decision on the merits and that even if the arbitrator misinterpreted the agreement and even if the court disagrees with the and if you look at the arbitrator's awards he did try to interpret the parties agreements and he looked to past practice and he looked not only at the two thousand and nine memorandum of understanding alone he looked at the labor agreement and other terms  there he found that the contract employers association and the union gave consideration to one another for this agreement and he found that them players association was delegated the authority to negotiate  guess the crux and i'm sure i'm going to be hearing this from this from your opponents at the stache the contract fairly unusually does say that there has to be affirmative written consent and i gather what district to district court was whether how they could have found that your one of your responses as well there was no evidence one way or the other actually before the panel and the district court felt in facts and you can't do that but i mean is that your only response to that or is there also an argument that there that there was applause there was a that they were looking at the contract sufficiently even with regard to that question sure so and they're the contract administrator for the union testified that they took this reduced contribution rate so based on that even though they may not have signed the agreement they for an entire year they took the entirety of the benefit that that can be understood as saying that's what they actually paid cracked and really didn't raise the argument before the arbitrator that it didn't affirmatively agree and he didn't raise any a argument that they didn't accept this lower rate in other words the board had been aware of this affirmative requirement think could have a term for the contract to mean that it could be essentially waived by actually paying the wages that were allowed by that vision correct one or  guess so and also because the issue was never raised before the arbitrator this created difficulty of having a sufficient record for the district court to review and that is not through any fault of arbitration panel if an issue is not raised and that and the factual record is not developed then there's nothing for the district court to review it and it can't and because it can't going to find its own facts improper for them to then go and try to find out if there was notice or if there was there from your agreement or if there is some type of writing that could have constituted consent to be obligated to this two thousand and were you so that so th district court here did go above and beyond what was what authority would delegate its them and what they were permitted to do in this situation is it possible for me to just see if the rest of the time for r underlying arbitration award first the fact that that award was based on a two thousand and nine memoranda understanding that you correct yes your honor and they rejected it both they never addressed it they ignored it completely they were ok so the first time it was it was made he will note in all three of the panels decisions that they refer to the parties having smid post hearing briefs after the first arbitration hearing and in that post hearing briefs submitted by  dr weil dynamics at page sixteen it provides quote however the union cannot show is that dry wall dynamics ever agreed to be bound by an agreement extending the relationship after that date meaning the june thirtieth two thousand and ten date the april of two thousand and nine memorandum of understanding that the union purports extend to try walton house relationship into two thousand and eleven provided be bound by this agreement and quote and then the brief goes on to discuss the reasons why that hamil you does not apply to the district her address did the district i'm sorry did to just record address this current this issue that you're now raising i said whether the the i understand the part about the affirmative exceptions and i understand your raise at the district court but i understand you're saying something slightly different now yes i was quoting from i don't know what you're quoting from i understand that you're arguing that this whole agreement didn't apply to them because it only applied to members of the association to the district court if you argue that the just recorded just a court dress yes where multiple times throughout every member of the affirmative agreement part maybe i'm misunderstanding your argument i thought you were now arguing that affirmative agreement or no extension didn't apply to these people to your client because they were members of the association well i'm arguing both wrong or i know but you began with the first one and i want to know whether it's was ever argued before and where and whether it's in the district court because i don't remember seeing as i know the second one the part about the affirmative agreement but this one i don't remember seeing and i want to know where it is the only other reference to it that see in the underlying record well yes it was raised to the district court the district court did address it in its decision and i'm going now with why go ahead and it was also raised before the panel both of them or the other place it's referred to this two thousand and nine memorandum agreement was the document that extended the underlying master labor contract without that extension then the timeliness was entirely appropriate determination vacating the award for public policy reasons i'm not talking about public policy ok or whether we're talking about plausibility i mean what is and in the two thousand  do you disagree with that i agree with your analysis you know that it's not the standard the standard is if you look at the agreement and you look at what the arbitration panel found or decided the agreement means is that a plausible rational reasonable i'll consider disagree with me i'm sorry if you disagree with me then perhaps i misunderstood what court well my understanding of the hawaii opinion and of the steelworkers trilogy which was interpreted is that it's really not a question of whether we agree or disagree with it on any basis but whether the panel itself looked at the agreement and came to a conclusion about the agreement a recipe about a blue sky or something else  your gut very well the rule is that the that the panel's determination must be overturned if the arbitrator has engaged in its own  determination and has utilized its own whims or dispensed its own brand of justice and in this case that's precisely what happened and i just went on a moment ago and tom you know the standard is whether it's a rational interpretation the fine for that's not the same thing here it is you tell us what the standard is not asking for an affirmative articulation of what the standard vs the reference that you made about the spin so once own brand of justice it conforms to the arbitrator if it looks at the questions and makes a determination of finding on those questions then the court is not at liberty to disrupt  the four exceptions applies and you know in this case three of those four exceptions apply and two of those four apply twice the public policy exception applies twice as does the possible interpretation of the contract apply twice so shifting briefly to the public policy i want to point out a couple of examples of public policy that you claim there are two independent ones your honor there as first of all the principle that multimillionaire bargaining rests and relies on his contingent entirely upon the consensual relationship of the parties and no one can be forced into multigrain employer marty the second one is that employees are free under section seven of the national labor relations act to choose whether they want to be represented by a union in your dream any evidence of any seventy seven which is found at five thirty fed thirty eight seventy so night it's a two thousand and eight one circuit opinion that you know public policy said when you're dealing with a challenge to public policy of course it does not revisit the panel's factual finding it's so so it cannot find evidence contrary to what the panel found but it can consider new evidence which intuitively makes sense because you don't know you've got a public were submitted there were here are were that there was no union representation at all at the time that two thousand and five membership memorandum of green was entered into that the union never sought or asked to request it to be the representative of drywall dynamics employees that the union never proffered any representational status and that throughout the so there's no indication of any discontent by the employees but they could have on your view of what was going on here filed for an election the case that any time the cases they're cited in our brief specifically hold that you cannot convert an eight section eight contract into a nine contract without certain criteria that are identified in the brief ok so your position is this was never a section not a contract so therefore the employees could have done it any time i mean it and other it said it was a section on a agreement but that doesn't mean it was and so your position is that it wasn't and if it wasn't then the employees could have just fine aleck's any time to the section on agreement they could have filed in as when the agreement came applies to a situation that was here where you have an employer representative the represents an entire group of employers for purposes of bargaining with the union a multiplayer collective bargaining agreement situation employees are being forced to continue in the relationship should the two policies was dominant over they both dominant each one independently is dominant yes your honor and in fact you have independent dominant policies direct i would say no your honor but indirectly absolutely yes the policy rests on the on the concept that in order for employee and employer association to represent its members in finding them to an agreement with the union both the members and the union have to acknowledge accept and agree to that relationship and absent that kind of of consensual agreement there can be no association with on the panel and sat in on the hearing gave his name is bob campbell and he's listed as someone who was there so perhaps there was like an implicit finding that it could be that two thousand and were you could be applied to try  it doesn't really matter i don't think that it matters because the district court didn't seem to find his reason to warrant a no agreement the employees kind of file for an election any time any way cracked so as in terms of the employee's interests one way or and i think that the case does say that the arbitrators award should only be overturned if there's a complete disregard for the contract and based on the arbitrators are then you talk panels arbitration of words they did look to the contracts they looked to the just one m a u and they looked at the master labor agreement while it might not be saying that the court agrees with they were trying to interpret the contract and and  beautiful i guess that there could be more than one dominant party because from my understanding of the public policy standard it should be something that violates a particular statute or some kind of law and given that there are number statutes and laws there could be a number of public policies out there floating around but are there multiple ones that apply here to this case i don't think so well because the standard is an explicit well defined policy and as far as th find a number of cases describing this as a public policy except for that i think it but also because there are competing policies debility and the question of which one kicks in in any particular time interpretation of the agreement so if a party doesn't raise a public policy argument or if a party doesn't raise some kind of defense it has to i mean it seems right to say that the public policy determination is ultimately to noble for the core no i'm in at least as to i don't know where the fact find position but right it is a little odd to ask people to exhaust that question because whatever the panel would decide when to make a difference when what i think here would be an unusual circumstance but they still should be stuck with the fact that the arbitration panel found so i guess that not an ideal situation because the parties delegated this fact finding authority but the courts maintain the discretion to make the determination about the public policy but what the court can rely on is only what has already been developed ok thank you very much thank you thank you from our human person southwest regional council carpenters