good afternoon sorry about that please the court i'm randy solving here on behalf of appellate nagra blower company we respectfully submit that the district court in this matter erred in denying the company's petition to vacate the underlying arbitration award both because the award violates explicit and well defined public policy and also because the arbitrator exceeded his authority in rendering the award the arbitrator found in this matter that the grievance who was a welder at niagara blowers manufacturing facility and he was performing safety since sensitive functions in that environment reported for work impaired by alcohol  at a blood alcohol concentration likely at point nine percent which exceeds the prima facie standard for driving while intoxicated under new york law and as a result of this that he was adversely it would have adversely impaired his ability to function in the manufacturing environment and the arbitrator didn't say this wasn't a violation and the arbitrator didn't say he was allowed to continue to work  while impaired and the arbitrator did not say that he could not be disciplined and indeed imposed a rather severe disappointment in the form of two or three if it was two or three weeks of suspension without know the issue properly as far as public policy is are you contending that there is a public policy that anyone who ever shows up intoxicated by point one percent above the legal the standard applied above the arbitrary he set a standard a requirement that said terminations there was not proper cause for termination because there was no adverse consequence no he didn't say that either he said that was one of the factors he considered was that there was nothing that you know he apparently conducted himself adequately at work as far as the record showed and that seems to me to be a factor that counts at least in favor of something other than terminations the arbitrator said b because there wasn't there was no adverse consequence all we had was the potential for ness and he also said that a nd offense would justify firing is not as if the arbitrator was making some absolute rule here the arbitrator was taking into account various things it was a st offense for example and there was no evidence of actual impaired performance and even at that he said the employer is entitle to discipline the discipline a disciplinary sanction of some severity is warranted under the contract and there's just cause for that but not necessarily just cause for termination so what what is it about public policy that would mean that the state of orders a result like this well the public policy is aimed at preventing employees from performing safety sensitive functions while under the influence of alcohol or drugs so we were we were wrong to uphold a similar arbitrators award in a case involving a nuclear power plant because i know you're out of the difference with the argument we're making here the argument in the case is relied upon by the district court instead of by the union was that reinstatement violated public policy and we're not saying that reinstating this grave it violated public policy we're saying that this standard that says something bad has to happen in the this court said it is the usual practice of arbitrators to find prior wards final and binding since it is fair and reasonable to expect a decision to apply to subsequent cases of the same nature so we would s that there is a presidential effect the only exceptions to that if you have a similar fact pattern in the same parties which would be the case case here what the court talked about in that case was the exceptions or if the  award was clearly the result of bad judgment which we obviously are saying this was or that initial determination award was made without relevant facts or circumstances or there are new conditions the in the nd award but we would say this absolutely from the company's perspective as presidential effect and we would assume and expect that if a similar circumstance arose so people are going to show up drunk because they'll say well i could drink this morning before going to work and the worst of all happened to me is three weeks without pay so i might as well go ahead and do it but we would certainly hope not but what it does it makes the company's decisions with respect to discipline this award says you can have exactly the same misconduct occur but what the company can do depends on the results of that misconduct now it has plans i want a st offense or not it depends on the totality of the circumstances including how drunk the guy was and if he was so drunk that it impaired his performance or maybe it was bought out always something higher than point nine that would be a different case but on all of the facts of this case the arbitrators that this was not just cause for terminations in a setting where the contract doesn't specify any particular firing offenses as being outside of that just cause dander that's left arbitration well on the exceeding authority argument again we would submit that the contract gives the company the express right to establish these point rules and not only to establish them but to enforce them as well and that's where the language is different than this court's decisions in st mary home and in st national supermarkets because the only under section six b of the contract the only times that the women at the company's ability to do that or if the rules are unreasonable or if they're they're inconsistent with some other part of the contract and the arbitrator didn't make either of those findings the union didn't argue that it was unreasonable and the arbitrator expressly said any employee should expect should reasonably expect to come into work and perry not only is going to violate rules and expectations but expose them to the whole range of consequences so in the orbiter also didn't say that section six b or the point rules were inconsistent with anything else we submitted in our briefing that all he did was overlook that language and then apply from his perspective proper cause and we certainly aren't saying he couldn't apply proper cause he did he looked at mitigating circumstances which he found there were none he also looked at the notice requirement what what would the employer reasonably expect but we're saying he can apply proper cause in a way that disregards the company's bargain for right and the word inforce in that contract provision has to be given some meaning so let me ask you how this turned out to be a reinstatement case because i found that troubling  judge to the district court it became about reinstatement but the question before the arbitrator was the discharge john bellinger for proper cause if not what should remedy  wasn't i don't know how we got on the reinstatement kick as any thoughts well the when we and the reinstatement from a public policy standpoint we are submit being that the district court system just looked at the wrong issue on public policy that's not our argument at all we're talking at the standard that was said in terms of the reinstatement as a remedy that the arbitrator grant granted for the the exceeding authority reason that we just have been discussing yes thank you am pleased to court the joseph jr representing the union shop ironworkers let me st start by suggesting that i'm going to assume that you know as much about labor arbitration because of prior court decisions you certainly know more about securities law than i do but i'm going to assume you know as much as i do if not more having practiced in this field for forty four years we start with the large global picture that collective bargaining is an important public policy of this country stemming from the thirty's and the arbitration and labor arbitration and labor arbitration was in the front of arbitration through the years labor arbitration is part of that collective bargaining and great deference is given by the courts as the court as the supreme court has said probably the most deference to anything the courts give to labor to arbitrators arbitrators decisions an arbitrator derives his or her authority from two sources the st source is the collective bargaining agreement between the parties the nd source is what the parties agree to let that arbitrator he or she decide in this case we have a collective bargaining agreement that says employees shall not be disciplined or discharged without proper cause the collective bargaining agreement says that the company has the authority to make reasonable rules maintain those rules and enforce  it's a very common provision in collective bargaining agreements i will concede that in some of the cases that this court has had the opportunity to look at where this question has arise mary's st national that it those clauses may not use the word inforce but enforce is a very general term the company certainly can enforce it's prohibition against coming to work impaired staying out too late the night before and having too much to drink the night before and still having alcohol in your system when you come to work by a suspension a suspension of fifteen days three working weeks is certainly a significant significant penalty so that the collective bargaining agreement then provides for the grievance an arbitration procedure and delegates to the arbitrator the authority to interpret and apply the collective bargaining agreement now the arbitrator has to stay within the framework of that collective bargaining agreement has to interpret what that collective bargaining agreement means i ask you one of the work rules it is it's an intolerable violation to show up with alcohol in your system or going to the influence automatic terminations may result so that's the work rule the arbitrator well i probably have the warning wrong but that was the  one of the work rules was the arbitrator bound by that or not no no your honor i know and i'll tell you i were out trying to convince you why but st let me back up the work  rule when your read it says intolerable violation immediate term a nation then goes on to define what offenses what misconduct falls within that category intolerable violations and then goes on to say that it may result and discipline up to and including terminations i think that's the precise language so it's not it's absolutely clear cut there was also an employee handbook provision which talked about rehabilitation when there was an alcohol or a drug problem the arbitrator's role those work rules are not negotiated parties can negotiate work rules those work rules were not negotiated the union conceded that they had the right to establish them but that does not include the right to say this is going to be the automatic penalty for violation of their work rules and that's in fact what this court has said starting from justice marshall in the otis elevator case back in the very early days to st national and same areas where the this court has said if an employer wants discharge to be an automatic penalty for an offense it needs to bargain that because the terms just cause or proper cause are not defined in this contract in many contracts and arbitrators and are charged with interpret in that what is proper cause mean what is just cause me in addition the authority derives from what the parties say they want the arbitrator to decide here it was was the discharge of john for proper cause if not what is the remedy that's what the arbitrator decided he decided that the penalty was just proportionate to the offense given the fact that there was and considering that there was no indication that he was impaired during the approximately three hours that he was working on the job there was no indication of impairment his work was there or there was no complaint about the work the work he was doing so we have those three cases from this  and then an arbitrator can interpret as should be interpreted in what proper cause or just cause it is and there is no restriction in this contract on that arbitrator's authority yes judge hoc arbitrator review your honor i believe selected through the federal mediation and conciliation service well the parties would certainly have the arbitration decision the union has the arbitration decision the company has the arbitration decision one and one would hope from the union's perspective that if the company was confronted with a case of similar nature in the future the company would give great consideration to ok some penalty is is is in order is there a problem should or should the employee be sent to compelled to some type of evaluation substance abuse evaluation alcohol abuse that was getting this is not a situation where ad hoc single single arbitrator like let me move very quickly to the because i have some limited time there very quickly the public policy argument i must confess i have a hard time grasping this argument particularly in view of not only the miscoded decision the eastern call decision coal that particular employee was reinstated twice the st four for drug testing positive for drugs and was a d o t regulated employee where there is a regulations the deal with employees in order for there to be public policy then was reinstated a nd time and that's the award that was being challenged and the court under public policy in the court the supreme court denied that challenge in order for there to be a public for that this award to violate public policy the policy has got to be we would contend explicit and dominant and interesting well eastern call could point to the d o t regulations and i agree mohawk could point to the n r c the nuclear regulatory commission regulations and the strong policy there neither of which require discharge of an employee niagra blower has not pointed to any regulation the only public policy would be  policy issue as as we said in our briefing we submit this is a case of st instance we have not seen any other cases where the arbitrator sets a requirement as we read the award for something bad to happen typically the grievance proper causes since a not be there because of some mitigating circumstance link the tenure or good work record or rehabilitation or something none of that was present in this case this was purely a case where the arbitrator found because there was no adverse consequence because nothing happened that there was improper cause and so what we're pointing to is the public policy that's been expressed in a wide variety of cases we cited one from the northern district of new york which are a lot upon a st circuit case the st look at case cites to rd circuit th circuit a number of different cases for the there is a public policy against reinstating or against something other than a severe penalty short of termination for someone in those circumstances i know you are and that's a mess isn't that the point i mean  no one saying that there isn't a public policy against having employees show up intoxicated and no one's saying that maghrib lower can't discipline indeed the arbitrator disappoint someone in that circumstance so i don't see why a public policy against intoxication even needs to come into the case no one suggesting that intoxicated workers should be allowed to roam the halls even on safety sensitive positions the question is is there a public policy that requires the terminations of anyone who shows up with over point eight percent  even in the absence of any demonstrated adverse effect on performance is there a public policy that you can cite about that because that's what the arbitrator ruled here well there's not that sort of public policy to our knowledge but again this is the public policy were citing is designed to avoid the misconduct initially not not to wait and see what happens from this conduct which is what we submit the arbitrators doing and and so we would say this award goes directly contrary to the public policy that says you're not supposed to have the misconduct to begin with and certainly nagra blower shouldn't be in a position of having to base its discipline on