america as we know a labor arbitration award is entitled to a presumption of visibility that presumption is not overcome in this case because the board's award is not a manifest disregard of article seventeen point zero one of the collective bargaining agreement or outside words authority that's the test this court set forth in brentwood medicals and yes in this case the board clearly the remedy awarded or have that authority because the party while raising now contends that the board lacked authority that's completely at odds with the conduct of the parties in this case the record here reflects th is what type of fine is needed to be made and what type of award be appropriate based on those findings and that's what i'm struggling with is i'm struggling with connecting up the  boards the arbitrator's finding of quote no lost income i think that's a direct quotation right no lost income with compensatory damages i mean i i'm i'm have i'm struggling reconciling those two things that appear to be diametrically opposed can you help me with that i would think your are be glad to do that the cornerstone of this case and the most established in effect at the time of the change as to the assignment of the installation and maintenance work and the delivery of the equipment and the board's found that the record evidence confirms the union about this case so so that it's clear that if they didn't drop ship a whole bunch of these units then the service techs would have had more work to do right all the service and and i ended up in a typical week i think they said they did two of these days i was a little surprise i thought it might be more like three or four but let's say they did they did two a day during this period when they were deprived the opportunity so they get paid a wage write a bargain for wage for the week right and they delivered on my hypothetical ten boxes that week so what i understand your argument to be is that they need to be compensated because instead of delivering only ten boxes of week they should have had the privilege in the opportunity of delivering fifty boxes week and i'm i'm scratching my head thinking aren't they a lot better off only delivering ten boxes a week for x dollars rather than delivering fifty boxes a week for the very same whether that's the case or not judge hardiman that's not what that's our traditional board article seventeen point zero one of the collective bargaining agreement that collective bargaining they took work away from the service technicians and and out sourced it to u p s or fed ex or whoever i'm with you on that one i'm struggling with is the damages because how is it a detriment to a service tac to do only twenty percent of the work under my hypothetical ten boxes a week versus fifty dollars a week that's not a detriment that's a benefit that's less labor for the same pay rather than having to drive around you know under tremendous pressure and tremendous strain delivering vastly higher quantities of of set top boxes i think i understand your your question to try to  record there were as extensive as by the unions of greatness is that the forty hour base weekly guarantee is just that it's a forty hour overtime but i wonder is the answer to that because the company had no obligation to pay them overtime because the company could have done two things if they were delivering all these other boxes number one they could have hired more service techs or they could've just taken longer and provided you know worse customer service and had the boxes delivered on whatever a two week delay rather than a two day delay or five people is that why the board didn't give them overtime because the company was required there were other ways for the company to deliver boxes short of letting these tax work a sixty hour we c forty hour week this is a thing about arbitration the board will do what it will do and it doesn't have to explain why it did what it did being you were argued vigorously conferred upon the board the authority to make this remedy award the parties asked the board to concrete hearings the parties appeared at the hearings the parties introduced testimony and evidence the parties presented all of the same issues to the board for a decision that it's now presenting to the court and it presented in the district for so in submit correctly can find what the nearest decision should have been limited to in which case and the remedy opinion could and should have gone a certain way but by this is jurisdiction that the parties had explicitly submitted to them and the issue before the board and then read conveyed to the board by mutual agreement and voluntarily so you're not you're not really sticking with the idea  t is an absolutely you know for latin scholars only i have an idea you wouldn't agree that it's still a valid doctrine is that right i would submit that the doctrine as we briefed has been greatly question and undermined in labor cases as judge passed mary think or to lay has argued the exceptions to the doctrine and  maybe cases have literally swallowed it whole but for purposes of this appeal considering functus officio against the the actions of the district court it's clear that this particular this particular board was not out of business this particular board because very much in business because the parties put it in business the parties went to the board and a forty four year old is in mr rasmussen to the neutral arbitrator that says we want to have remedy hearings and hear all the issues we want to present to you but arise in itself requested a nd day of hearings so that it represents its case it never in the end you of course you're going to have the other argument as it's all about the money i mean that it seems to me that's not unusual it's not all about the money to the union your honor it's ward is changed by instead of covering yes to liberate covering both delivery and installation is that not an improper expansion of what was  particularly as a matter of limo to have the right to expand the work that was covered if the merits award was not a final or as i have argued on brief and argued part of the issue was the awards violated and and if hypothetically if you say that the merits award the board holds that the collective bargaining agreement was collective bargaining agreement was violated by allowing both delivery at installation is that not an improper to the merits award in this particular case it would not be confirms the union's claim that bargaining it members were assigned to deliver the set top boxes that they installed beginning when the service was implemented so the board specifically hel that the protected work assignment and that is the cornerstone of article seventeen for you know what that the protected work assignment in this case concerning both delivery and installation of the boxes when the parties came to the reaming and discussions that they had to agree on a compensatory remedy the reason they hey what did you mean when you issued your marriage award and you held that the protected work assignment in compas delivery an installation did you did you  the board itself explained its intent in the remedy award or the said remedy award the work at issue the work at issue your honor that is the bargaining unit work services technicians were deprived of when for arise and drop shipped set top boxes to customers includes delivery of the boxes unless the customer hasn't obtained one from us to or from a company up the award of the of arbitrators in labor cases you have to allow the board itself the arbitrator herself to explain what her intent was and her merits award that's why these parties asked arbitrators ows you to do tell us what you meant tell us exactly what you meant when you said the record evidence confirms the union's claim that bargaining unit i intended was exactly what i said the protected work assignment includes delivery and installation and so accordingly at the request of the parties she modified the remedy award to quite clear that the that the quote worked at the panel has found to be protected by article seventeen or one which kurds in paragraph one of the award  and it also defined the work in issue and eighteen dollars to sixty eight dollars the panel meant to speak to the work an issue in this matter not to all the all kinds of deliveries and putting delivery for new customers my question is frankly i have trouble believing that i could ever install any stuff so the idea that an existing customer would is a little bit tough to get a hold or i think that i understand that your honor i think i do think the definition of what an existing customer is is something that for rights and the union agree i mean that's what i thought or another customer they were seeking to upgrade or swap out or exchange or replace a set top box those were existing customers new customers were not in dispute in this case because new  it was undisputed that new customers set top boxes are delivered by services technicians because they come in install the new service  in this concept of existing customers was well why is the reference made to the year two thousand and the bios went on line your honor in approximately two thousand and six and in the period at the from two thousand and six until the end of two thousand and seven or beginning of two thousand and eight  operated under the established work practice that was found by the board meaning services technicians carried set top boxes to customer homes that they then installed and brought the spent concept i think it's clear your honor from the award when the panel sad that it was addressing quote the work the work  season disorder specifically said that it addressed the work that the panel has found to be protected by article seventeen dollars so in any any order and in any award i suppose you could always construe it to encompass matters outside the dispute for the board but in this particular case the units admits that it was clear from the wording of the arbitrator perhaps it could have been clearer perhaps they should have sadly and this does not include any other work not any other deliveries that were not before the arbitration board but i think it's fair to fair  to assume and to apply an order like this to apply to be the work that was before the board the work of existing customers ok so when i board a vote to be a dog with a bone on his bits the merits opinions as applying to exist in a system are but the remedy opinion does not your honor again the case law on the circuits very clear bad arbitrators tangle their words they don't always express themselves as logically scrutiny that we review district court workers and the reason for that is because labor law teaches that we are to give a wide berth as long as  you know as long as the arbitration panel sort of keeps it you know this isn't this isn't a matter of exacting scrutiny that if they've got they've got a lot of latitude this rich people within the the boundaries right agreed to commit disputes instead of to litigation to an arbitrator and your collective bargaining agreement as this one says is makes the decision of the neutral arbitrator the fin final and binding award then i quote your honor the possibility of receiving inconsistent or incorrect rulings without meaningful appellate review of the merits is one of the rest such am you know a good bit taken aback i guess at the argument which now appears to be that we by going back for the remedy hearing consented to reconsideration of the merits of  wart i don't think there's any support for that anywhere in the i don't i don't i don't hear ms lassen to say that the i feared are you that the merits award is a natural extension of the excuse me the remedy award natural extension of the merits were it may be in artful it may be a little a little sloppy in spots but it's the natural extension so and i will address that i guess and i'll be happy to have a court  clarify that were she can clarify it herself on her but all it it sounded different sounded like there was an argument that we consented to reopening but in any event you know there is no you can remedial hearing i mean it was clear that when you left when you left the merits were there was a clear the parties i think wisely were sent on their way to try to negotiate a settlement it didn't happen and everybody knew if that didn't happen you're going back to see what the  correct and right and so let me move move to the part about why it isn't possible to now can construe the what the arbitrator did and remedy as merely clarifying as opposed to completely changing the merits of war on the issue of customer self  installation you know there are obviously we can we have this in our brief and i won't spend a tremendous amount of time but just to point to the specific pages in the record  eight to forty nine and the this is in the merits of war prior words of confirmed itself installation by a customer does not amount to contracting out bargaining unit wor work and then i mean the whole premise of the courts excuse me the arbitrators reasoning of the merits award was to separate the liver and say yes installation is established that is something that the company can have customer do but delivery is different from that this is also on a two hundred and forty nine the question of customer self installation of certain equipment right so this actually is right in line with that it's the key is basically i guess i would say turning it on its head if you look at two hundred and forty seven but what th language that she quoted is a bargaining unit numbers were assigned to deliver the set top boxes that they installed that was not saying that installation therefore had to be a bargaining unit job and that if a customer did it it was like getting into a contract that was saying if the emphasis is on the opposite on the other part of it that when they were installing boxes they did the deliver right this is to establish that delivery that there's an established practice of delivery being for the bargaining unit and against it you know to the extent you have any question about that if you you know you keep reading you have the parts that i mentioned and then finally the very end on a two  add up the bar you know employees who've been denied the opportunity to perform the delivery work in question are entitled to compensation the company has directed immediately ruling is limited to the delivery of that insists installation is self insulation by customers is permissible because customers are not contractors so that's not assigning work and i guess the last thing i'd point to on that being that having been finally determined you know it's worth noting that when before the remedy hearing there was an  expressly said that here the word is final as to liability but left open the issue of remedy so this is not something where any of the liability was left  the argument has also been made here that you know the arbitrator should be permitted in the remedy award to go back and explain that would sounded like a final award  reason and in fact you know the court has warned against opening a pandora's box is the phrase support used in this is the colonial and forty three a nd a three hundred and thirty two that basically if you're going to be able to have the arbitrator effectively change the effect of the initial ruling on the merits by later on saying i meant something different you know you lose the whole purpose of the doctrine and if you look at the way this court has has phrased the doctrine itself it contemplates that you know his last referred to slicing and dicing and not splitting up an arbitrary word but it the doctrine contemplates that you're going to have part that can be final and part that's left open like you have here there are the three exceptions to the doctrine i'm looking now at the teamsters versus mat like case but it comes up in all of the cases so the nd exception exhausted his function and remains open to him for subsequent determination but you know by clear implication as to the issues that were not left open those can't then be changed after the fact  true in terms of like a challenge to the merits award as being in manifest disregard or as for any attack on the on the reasoning that we don't then provide leeway to the arbitrators later on to say oh i meant something different unless there it was legitimately left open a rule generally made ambiguous in the st instance there isn't leeway to go back and change you know that is the whole premise of the doctrine let's well ladies the district court was appropriately  the this work of delivery has to go to the bargaining unit but not necessarily to this particular type of employee in the bargaining unit and the district court recognize that but said that on that issue given the deference to the arbitrator's and the fact that it was not under the you know the district court actually you know did not overturn that so i think the district court opinion reflects a pretty careful ge in his last and here's how i understand what happened here and correct me if you think i'm saying contrary the board found that the company was  outsourcing the delivery a set top boxes to rd party carriers instead of having service techs deliver an install fare ok so what if the arbitrator here had slight it was over a one million right so ok let's let's just round it also it may involve i think that one thing it's hard for me here is it may involve overlap into this is the issue of the new customers versus the existing customers and but i doubt that will affect your hypothetical so right all right so so so what is the board on the remedy side said ok the parties can settle need to figure out what the damages are and in here's what the damages are there are x number of service technicians it verifies they they have the capacity to deliver in any given week why number of boxes and they were deprived of the opportunity of delivering a one million boxes if i divide the number of technicians by a one million boxes over a certain timeframe you could do the math and you could conclude that in order to deliver those one million boxes in a timely fashion to keep the customers from going crazy that every service technician within the sale within the force would have had to work ten hours of overtime a week in order to deliver those those one million boxes therefore the remedy is ten hours a i'm questioning what the board found because what the board found here was in a sense the board did you a favor because instead of giving the union the union the overtime rate they gave them the straight rate and they had advocated for the overtime rate but but what i'm what i'm concerned about here is the apparent illogic of the board simultaneously concluding that there was quote no lost income and then purporting to enter it compensatory damages award on the heels of no lost income but but my hypothetical presupposes that the board found or could could have found that they didn't lose any income on their hourly weekly wage but what they did lose was ten hours a week of overtime per protech and can couldn't the board have have found that is as damages on the heels of this merits award as draft know as your honor pointed out earlier it doesn't actually follow that there would have been over time because there are two other things that could well have happened and you  know i'm not going to speculate and say probably would have and but you know faced with more work to do you the company either  d fill orders somewhat more slowly or hire additional people for the position there are all right so why don't why don't we remember had it then why don't you if we agree with you that the use of the word deters smacks of punitive damages if we agree with you that there is nothing compensatory about giving millions and millions of dollars to people who lost no income  why would it be on the table for us to send it back and say you know look judge roof was correct here in criticizing the compensatory nature of your work and she was correct on the punitive part of it but what didn't happen was there wasn't a fair fight in the in front of the board about whether or not there were overtime to images here i guess without what i would say about that is  i understand the concept i think that you know obviously the you know what the district court did was simply be kate the award to then go back to the board i think that if you were to go back to the board you know it would be important that in fact the union did not actually put on evidence at the remedy hearing to attempt to demonstrate that in fact it would have been dealt with by having people work all this overtime rather than engage in the other alternative ways and company not breached the contract right what would have happened i think well sure and all i'm saying is that i think that that exact issue was there for the union to to li gate at the remedy stage the st time around and that you know they say they certainly could i guess attempt to argue that in fact it hadn't been open to them or that you  know and that the board hadn't actually found that they didn't lose overtime income you know that's not going to be something that this court is going to address one way or the other obviously but i mean i think you know i'm just trying to be candid i think that if i were back before the board i would just pointing out they could have proved this and and you know and we think the board found that but that's not any part of i think with this court this court is being asked to you know simply affirm the you know they cater of the remedy award which the district court then sent back to the board and what wouldn't be open well that raises a practical question i have no idea what the answer is maybe you and your colleague can help me if we just straight affirm what's the next step on this case is this case dead or there still proceedings to fall in front of in front of a new board her some other labor panel well i mean i look i would hope that you know as in the cases like this i think we probably hope that the parties would you know with with it now at least clarify that installation is not part of it and that only compensatory and punitive not pure evil words or permissible that that would nabl the parties actually you know resolve it without themselves without having to go back before the board but obviously if they couldn't i think the way the district  that it's vacated you know for the board to now enter a proper remedy you know it's not a lease in that sense it's not it's not that it's just that i have one last last question going back to the notion of whether or not there was that an opening for the arbitrator to revisit is scope of the merits decision and the question i have i understand there were three avenues that were an issue initially and then you in a rising created a th option with his new category of unionized a does not the fact that this new option was created by horizon after the merest decision was rendered implicitly invite them for the arbitrator  invitation to reopen and the basic premise of the decision and that the actual installation by customers is fines you know i think the answer to that it from our standpoint is no when when your bargaining unit worker delivers a box isn't a customer entitled to have that worker actually install it to mean the customer may have the power to say look i don't need anymore thanks you can go home i can do this myself but that isn't a customer entitled to have that bargaining unit worker actually install the boxes well in title two i mean i'm not sure i can speak to that it's not really in the record here i think that practically speaking the answer is probably going to be no because but you know if you're making an appointment st someone to  if you just have to have somebody drop off a box that's very different from having to make an appointment to have the skill technician have the time to do an installation and you know you're going to get your six hour window so wait at home for them whatever it is i think is that you're saying there were there were two options there were there really three options option one is i can drive to the local horizon store pick up the box bring it home and stalin option to his i don't have the rise in tech delivered to my house and a drop in on the stoop and say thank you very much an option three is i can invite them into my house because i don't know what i'm doing and they can set it up for a year although i think that you know now i mean i just would very clear that i'm not talking about something that is in the record but you know i know that when i set up cable appointments if you want to install it they have schedules that they've got to meet and so if you want to add to the work my st concern is is did a finding of no income and then an award of a lot of money for compensatory damages my nd concern is when the jew to cater says that i'm entering this word to quote deter bad behavior that certainly looks a lot like punitive damages to me that the or preferred to vic contract customers contract or the board referred to prior awards finding that cost dimmers could self install but this panel this board hel but that's not the issue in this case this board explained the intent of our own war was to define the us the work assignment that was protected by article seventeen point o this poor had the right for the reasons that george hartman articulated to complete its mission so to speak the issue that was submitted to it in the original parties at the inception of the case what is the remedy for the violation of article seventy one point one the burglarizing has admitted that it violated article seventeen one and when it appeared before the  board in the remedy phase of the hearings the issue was not did the company violate seventy or no one zero what shall be done about it and in doing that had number one the board was not fun to sophists yo because it was still functioning in its original jurisdiction number two the exceptions two and three in colonial penn clearly apply in this case number two there was an issue that was  to the board but not yet decided the remedy number three there was by any measure and i think everyone on this call being candid would agree there was an ambiguity between th parties perceived in the board's merits decision the ambiguity being that issue of installation so who do we listen to when there's an ambiguity do we listen to arena of labor arbitration it's particularly appropriate that the arbitrator rather than the courts determine the awards meaning i could go on i know we have that's an argument but i  think that's enough i agree with everything you just said but i don't i'm to i'm taking the arbitrators at their fat face value what they set him and not only not only what they said because i'm with you because of the latitude we give in these types of keys i'm with you about the street a word of this or that that's what i meant about you know really reviewing this you know in hypertechnical way we don't do that but but the fact remains that taking them at their word there was a finding of no lost income and purportedly on the heels of that fine of no loss think them a very large compensatory award and also they said the reasons st because when i made the statement the grievance did not lose income because they were fully employed you have to put that statement in the context of both the record and the award target rate a straight time rate or add an overtime rate and the board was obviously it appears not impressed with the unions our commitment and it was not impressed with the union's  the services technician didn't lose their income from full employment and that has its grounding in the evidence before the board your honor if in the record evidence there was extensive testimony i've i've referenced it before from mr rimmer or from mr mooney that services technicians get a base forty hour rate and that the contract provides overtime after forty hours the board was obviously impressed that the services technicians in this case were not laid off the services technicians in this case were not part of the services the problem here is i maybe i'm reading through the lines incorrectly the problem here is when they outsource all these deliveries to rd party carriers they were kind of like working them out of a job of eventually right there kind of dying on the vine isn't that part of the problem here they don't have them they don't have that much work to do or maybe they didn't have enough work to do you know their episode is there are so many so many boxes to deliver that there's enough to go around for the bargaining unit people in the rd party ship actually i'm like mr fetter i'm i'm somewhat going outside the record here but the services technicians are very highly skilled very busy employees who do of  what i don't want to from running a business is people with that skill level you know delivery men and women right now i want them doing the heavy lifting not that around dropping stuff off their medicaid that may be true your honor but again this goes back to what was the protected work assignment the work assignment in this case found by the board is that whether horizon could have done it a different way whether for arisan could in the future after negotiating with the union yet do it a different way the protective work assignment in this case is that services technicians to live earth and install set top boxes to quote existing customers the customers who wanted a seven of its brief there was only option one in option two at the time this dispute arose option one the service technician delivers the box and install said option to the customer goes and picks up the box of arisan present center and then installs it herself the isn't that all that customers not a contractor comments appeared in the award in my view is because as mr rimmer testified a customer is a customer not a contractor if a customer goes in gets the box that doesn't implicate the work tech to work assignment if a contractor delivers the box or inspect it then it implicates the protected workers sign and the board repeatedly said repeatedly said during the hearing in the transcript and in its final award verizon's focus on customer self installation is misplaced why because the protected work assignment that it found included delivery and installation by the services technicians let me ask you a question does the collective bargaining agreement prohibit peanuts of damages it does not your honor is a permit is a speak to it and any seventeen point zero one prior awards submitted by the parties and many of the arbitrator is awarded time and a half damages suggestion in the record in this case than in article seventeen point zero one says arbitrators are all over the map whether to ward compunction sation for lost work opportunities in straight raids or at well i don't know that this that issue will be before this board i certainly think the board would be able to clarify whether it viewed the damages  punitive in particular whether when it used the word the grievance the phrase the grievance did not lose income whether that was a whether that went to the board's decision to about the rate for compensation or whether it was intended in the assessment of damages to to be punitive i don't believe it was when you look at the context of the record and the specific paragraph in which that sentence occurs it's followed by the statement the record does not support a finding that the remedy should be at over time rates but it should be calculated at top straight time lost work opportunities they were deprived of work opportunities and that in the military was a tactic that you've brought us full circle to where i started with you which is this strange thing they certainly lost work work they lost a one million boxes of work but if they made the same amount of money for delivering a one million dollars a one million fewer boxes were they damaged in any way you know i don't know it depends i guess it depends on the person some people if you're a testimony in the record your honor from mr mooney was that the work would have been done in over time as additional work services and tech which is which is again for which  scratching my head why the board didn't award overtime which brings me to my final question do you agree with mr fader that if we st a firm with a district court to hear that you're you're still live i'm not your lover guy you're on are good for the lawyers anyway right it's not good for lawyers because some more years see that their career may not last another twenty years  parties here i think because the board had a hard task before it and had to take a work preservation agreement that arose before my father landed it d day and apply it to decidedly st century fa reason i asked the question is because i'm also wondering whether even even if we were to agree generally with the district court that the  board exceeded its very wide berth in some of the things he did in the remedial award that raises the question of whether there should be some instructions to the arbitrator to do it over and to and to pay you know careful attention to this question if if we were to say that what the board did was p an invalid compensatory award because of the mismatch between no lost income and damages that still might leave open the question of whether some other remedial award might be appropriate namely the award of properly calculated and lost over time that the bargaining unit members missed because of the end run around them by using rd party shippers that's what i'm seeking your guid situation or it could certainly do so and arguably most of these issues if the district court found that the damages were not properly calculated but if renia just for honor knows simply because the poor had used the word deter that would not in itself convert those compensatory damages to punitive damages because compensatory damages can seventeen dollars and it's not being punished here for something it did not do it's being ordered to redress something that it did which was violate article seventeen dollars and there's no there's no entity that can properly resolve that other than the one that the parties bargained for and agreed to which is the arbitration board to judge roth or judge prouder of anything further now the rd are i well i want to apologize and have the panel for for putting both of you on the grill for so long but as you can tell  this is a very difficult complicated case and and i will also add that quite often the length of time to which the panel puts the lawyers on the griddle is a