questions are answered by reference to what the party did bargain in their contract so the part of the answer to your question is your honor if the party had intended there to be more limitations on the company's right to subcontract out work they would have negotiated them how do we know that we know that because the general right your honor in an article eighteen of the t b a provides the company with con the right to contract out work as follows that quote the company may let independent contract period end of quote and it's not unfettered your honor the limitation is that the party chose to negotiate to protect the bargaining unit in there and their contract were to fold and their substantial the company and the arbitrator recognized the company's right to contract out the work is explicitly limited by the two provisions that they negotiated in article eighteen itself one the company must notify the union in writing and discuss the reasons for the letting of the contract when its of a certain monetary value set by the party thing to go he did that and they negotiated the nd provision which is very substantial as a protection to the bargain to your honor they negotiated the limitation that while the contractor knows this involved one more going to unit position where the incumbent retired the company posted the position and no bargaining unit members applied for the position and the company contracted out the work of that single that's single position your honor it's not anywhere near to the destruction of the bargaining unit and you honor the case is the rd circuit cases in which awards have been vacated answer your honor's question by saying that if the arbitrator doesn't like the balance that the parties own bargaining has struck  it is not for the arbitrator to add modify in large or create contract provisions and your honor that was that is where this arbitrator i'll quote the language of  decision of this court of presidential decision of this court from december thirty two thousand and one thing that that is where the arbitrator went off the rails and that is your honor once the arbitrator decided that the contract thing out provisions that the company and the union bargained that were not violated there was no failure to give the proper notice and discuss the reasons as an exception one there was no employee laid off or demoted during this contracting out the arbitrator under the rd circuit's decisions your honor needed to stop right there where it got to be i was on the panel on the longer hella and  because your honor in monogamy hello as i read your honour's decision the court or the panel's decision the main if you in that case was the arbitrator going beyond that ar e delegation of authority by creating a contract provisions that were not in the in the contract and that is what that is what b arbitrator in the monongahela decision said did and that is what the arbitrator in this case did let's look at how this arbitrator did this where this arbitrator went off the rails d is that she didn't like the bargain that was struck by the parties in terms of limiting the contracting out to a no lay honor and it goes to a violation of article eight of the arbitrator arbitron part arbitrators authority which was the touchstone of the monongahela case that she from the from the language of quote during any period of time when the contract is contracted work is being done there shall be no lay off provision the arbitrator said well any period of time means a period of time change the plain meaning of clear and unambiguous contract terms which is what she conceded she had here she just created new ones nowhere in this award to the arbitrator say she found article d eight contracting article th contracting out hear arguments based on article week in the law your honor the recognition clause will start there the recognition caustics merely that the company recognises the union as the exclusive bargaining representative of all the employees whose job classifications are listed in article two and who are based at the clinton facility as being covered by the key v a for purposes of collective bargaining there is no concept of unity rosen in that recognition was your honor and contracted that out it was it was one position as a matter of fact that there were the that the contracting out here involved the work of that one material handler position vacated by a retiree which no bargain employee applied when it was posted that was consistent with prior contracting out your honor if we're going to talk about prior practice and despite the fact which was conceded your honor that there would had then no unity rose in the bargain unit had remain that would deal with that that's for the parties to do in bargaining her only her only responsibility her only authority under article eight was to interpret the actual language of the contract and to not add in large or modify or create new terms which is exactly what she did to get to her intended result just like all the rd circuit cases in which the awards have been vacated your honor just like the just like the arbitrator in managua hela created an operating need requirement into the parties c d a where there was none because he didn't like the oh so i could return i could turn around that same question your honor to them to them and not get ill a case of which is the arbitrator didn't like the fact that the company final absolute a vacation was would have meant that employees don't get their choice when employed when employees were actually trying to exercise their choice and the arbitrator didn't like that result so he said you know what the company can't do that  unless there is a operating need which was found nowhere in the party's contract and that award was vacated because the arbitrator created and force fed that provision made out of fiction because they didn't like the result so the answer to the question your honour's the same answer that the panel gave in them and on gala case is that the arbitrator could tell the party he doesn't like the the potential but he can't create contract terms to two to deal with it differently than the parties have in their own contract and you're under the arbitrator of war and certainly do become part of the cases was in violation of the contract he took from florida who found that the nine hundred and eighty three award who found that the company did not violate the contract and he and dick to said well you know the company is not doing this to erode the bargaining unit and then from that he says oh i'm going to read the florey award to have a contractual requirement that you can't that the company can't you wrote the bargain unit it wasn't even the oh it wasn't so you can look you can look at the awards your honor but he can't miss read them and he can't take in one of them to create a new contract or visions in the face of article eight that he cannot add terms to the contract i would actually say your honor that since the florey award if the parties wanted to bargain something different based on that dictum that you know that the key to this that the parties are sophisticated marketing party they could have changed and the contract and provisions any time that there was an ending of a language he changed it by adding this end date to article eight there must be an end date if it says period of time and this concept of unit erosion to the recognition clause which the parties could have done if that was their intention but it was not you know about no activity to the article eighteen provisions themselves he says article eighteen expressly limits contracting to a period of time no it doesn't it's said during the period of time when the contract is being let out there shall be no layoffs all the period of time meant is to work while while the contract is being let out there shall be no layoff it only defines the no layoff provision so right there is just not true what she said but then she said then she takes it even further going off the rails and saying d by definition a period of time has a start date and an end date it's during a good period of time that's left that the company may not layoff or contacting those think position serves to undermine the bargain yet that's her concept of unit erosion that's the only place you're going to see it that's as good as it gets that and so she went from the the material handler position  the material coordinator position is within an exhibit to therefore you cannot permanently barred contract out that position because it would undermine the bargain unit and your honor i would commend at this point to the court you know sub contracting decisions in this in this context are hard to find but in footnote one of our reply brief there are cases from other circuits the th in the th circuit and because those are some contracting context your honor they all say that where the arbitrator finds and have to find that piece of contracting provisions are not violated they can't then get into their own balancing persuasive and it says the arbitrators cannot use a recognition clause to create limits on employers weights into the c p a to contract out work by trying which he some balance with the impact on the bargaining unit when no such terms are in the part there instead it went on to balance the interest of the unit in the bargain the unit with the companies write the contract out and in doing so the th circuit stated there that the arbitrator dispensed his own brand of industrial justice which of course the the answer to the question is the arbitrator cannot take the recognition clause and add things to it because it would a key they limitation on the limits of the company's right to subcontract that but parties themselves chose not to bargain in fact your honor i would say that the no lay off and no demotion provision during the life of the contract is the party to attempt and in fact result of negotiating  a bargaining unit protection that's exactly what that is a a no lay off guarantee in consideration for a broader some contract of contracting out right is very basic and very substantial and labor labor contract law that is the protection of the bargain unit no no employee in the bargain unit who could do that contracted work is going to be laid off or demoted while that contracting work is being done that that is the protection of the of the recognition clause and the bargaining unit from this kind of erosion you can't lay off somebody who can do that work you have you would have to end the contract and bring that person back you can't lay off and there's and there's no there's no in fact the arbitrator said the mention of article eight so after adding the end date to article eight i'm sorry the end date the article th of contracting and the concept of unit arose into the party he v a to the  recognition the arbitrator never even cited or tried to reconcile her creation of new terms with the provisions of article eight limiting her delegated orbital farty that the discussion portion of the awarded appendix sixty seven to half a seventy one never even mentions that contract a limitation on her authority in article eight why because she completely disregarded it and he knew he had to to get to the result the arbitrator instead called the made up limitations that he created in article eighteen contracting out an article one recognition he actually used the word inherent but they're not inherent and in fact that the company didn't violate article eighteen and that's contracting out and then he went out and found these other creations in these other two articles and said that there are inherent but they're not they're nothing more than  arbitrators on alterations of the party's contract terms to achieve a result he thought was more fair and just and in that regard your honor it's like what the arbitrator did in the  comparing it to other industries that's when that was outside the contract that's why it was wrong the court and the citgo case determined that an arbitrator can't do that an arbitrator can't reach outside the parties agreement to reach his or her own notion of industrial justice and cited the provision that you keep the arbitrator has no delegated d authority to add or vary or make up new terms of a contract and that's what this arbitrator did by inserting the end date into article eighteen and the concept of unity rose in article one and never even reconcile that with article eight everything else is he tried to reconcile and target article this this court found an arbitrator did the thing you know created these terms to justify his or her own view that if he or she did not impose such a limitation they arbitrator the court vacated that award because it was quote based on the arbitrators on general considerations of fairness and equity as composed to the opposed to the exact terms of the c unquote that is clearly what this arbitrator did in this case and when you take the th insert six circuit cases cited in footnote one of our reply brief which are in the sub contracting context and just take  them at the next step in the rd circuit analysis but i just cited an arbitrator cannot find that the company did not violate d this of contracting provisions but then reach for things like you know fairness and unit structure and balancing to impose restrictions on the employer's right to some contracts that were not contained in the party's agreement and when they do the arbitrators award that has to  discussing the issue of whether what would happen in the event of a layoff he said that they would have to end the contract and bring the employee back but the employee into the contract  not have that and there are many indications in this contract that the arbitrator looked at that said that indicated they did not have the ability to just permanently contract  we started argument he asked could they abolish the entire union and council directors that it was just related to this one position that was not the case and never was the case the case was d always about and it was listed in testimony at the arbitration that the union actually stated that they could polish any position in the union by simply what many means of attrition as long as they abided by those to what they can sue conditions not to lay off and to provide the notice that as people retired they could replace any and all positions they wanted to because they did in their mind call them core or non core and they did little any position on core and replace everyone including technicians i will tell you owners i was stunned when i was there that testimony because that and that and we did argue that the recognition clause precludes that because that is the basis and we argued very strongly that that would render this a loser a contract the basis of the labor agreement is that they're going to be positions that are union positions that are protected that did not the company cannot just simply say well we've changed our mind and we're not going to have any union employees anymore which is what was what arbitrator did rely on article seven section seven but finally here's the thing because she did reference all of the prior arbitrations and she referenced how she was using them and  why she was using let me just when we say it's it's a very powerful statement about that they made like context that this is why a lot of the shop and the prior arbitration awards and the so called parole evidence becomes very who are currently working for us are protected because that's the company's reading of it is as long as we don't as if we let them retire and we replace them with with contractors that only protection one generation of but the point is that right or wrong the arbitrator's decision is based upon not only the article eighteen but also upon finally article article seven se purchase order these are all things that indicate in the language itself that these are not meant to be ok they're contracted out and they're gone forever which is exactly what the other arbitrator say the arbitrators in fully  sections and it is very important with respect and and there's a legal basis for it has to be included in the law of the shop and then we look at well how was that applied for the last fifty years so the reason why we hang our patients was because there was a significant change in what the company was doing they had never done anything like that for they'd never said these jobs are going away and never coming back  you know don't don't think that this means that we could take away that the that we can eliminate the union through attrition that's never been the case and never will be the case when he says that he's closer in time to what was actually negotiated that's why it's important whether it's you know whether it's a lot of the case or whether you're looking at the parole evidence whether it's ambiguous or not ambiguous the history of the parties in a labor agreement is crucial to understanding that agreement and it's crucial d to this case because that is why it's violate the contract and that was the issue that we presented to the arbitrator that is how we phrased it because that's how the n l r b phrase so now because there's a change the history becomes important we argue that this is a change in how toll well no because it because it's relevant because this is not the end actually the whole arbitration history is very different because it shows that this contract is not susceptible to one clear and defined interpretation we've been arguing over for in one form or another for close to fifty years and and so that's a very important point because and that's with a judge to district court realize that it's not susceptible to one claim credit just as easily been read the other way it could be read this way to be read that way we are not here to determine whether absolutely no basis in finding what she did and that is clearly not the case when when you when you look at we submit there's more than just the one line i understand that in her opinion she focuses on the one line that says period of stuff and and the through to the positioning of the the contours of the parties over the last decades was that these were not these were temporary they they they fill them they still and there are still many temporary and as a matter of fact she was very fair to both parties and say that various times both parties were not happy with the way she ruled on particularly evidence or whatever but and hannah was so say personal no d one had an idea of how she was going to will where we ended and then we submitted briston away d for decision i went to the fact page and was happy to find out that i had won but if i seen that the union of lost case and the same thing with respect to the serious drop a case in the beard is a method to be your case is very much you know we cited also says favre ness because you know in this case the armchair didn't head of the house and she didn't it and because if they can do it they can do it if they can't they can't can they do it permanently so it wasn't a balancing seeing well is this a good card which in some contract that has that have those provisions well you know it has to he reminds upon the recognition cause and upon because what the the you know she basically did like you said sandwiches in the recognition cause into the into the argument but counsel referred to a whole lot of things that aren't in this court record you know i asked the company witness at the hearing there's no hearing transcripts here the n l r b denied that there's no in a lot of the decision here you know there's three what this court is here to do at the plane are exercising plenary review and so we don't even have to find an error in the district court although there with the district court was really in the standard it was it was basically a standard that's not consistent with the standard that this court most recently found in monongahela but this this is about the court's plenary review of basically two things the standard to the arbitration award itself that part of the appendix that is the award because you are you are judicially reviewing the arbitration award for compliance with the standards from our supreme court that an award must flow if efforts from the words of the collective  you have a check or may not dispense his or her own brand of industrial justice and further the architect a month after within the scope of authority conferred to him or her under the collective bargaining agreement and it's the standard  allocate the most recent pronounce that if that were lifted in the decision in this case it's right on but the reason that that's what we don't have all this other stuff on the record is could the arbitrator's awarded your record your honor and you apply those because the way the standard applied was an extraordinarily minimal bar necessary to uphold an arbitration award and but if this court and judge callan stated and if you look at the union's brief this union in its appeal here is counting on one thing that the standard for review of an arbitrator's award is so high that this court won't take as close a look at it as it's questions in this argument suggest that it has that's why if you look at the union all they argue is the standard and very conclusively say the arbitrator met that standard and to the case well it's not the end of the case because that's not the