Okay, we'll go to Teamsters Local 7-1 versus CBF. Am I wrong? No, this is what we have. Yeah, but... I have international brothers of Teamsters. Right, yes. Yeah. Right, CBF is number three. Why did you... Why did I mess up? When we go to the listing this morning outside the courtroom, it appeared that the Cannot Matter was number three. No. Oh, no, I'm sorry, but it's not what's in mind. Not what's in mind in the national weather woods. Yeah. The teams are facing it. Okay. Clearly, the trick on them. Yeah. Marina? Don't they give the lawyers the same... I'm sorry, but the third one is international brotherhood of Teamsters
. Outside of here, it's number three. I believe in how we can... Okay. We will reach her. Okay, we'll look forward to getting you again. According to mine, we should be seeing Mr. Ridley and Mr. Cunorton. Right? Yes. Am I pronouncing that wrong? I pronounce it conscientiously, but I'm okay. Connitten. All right, now you put the accent down. Connitten. Connitten. Connitten. Good, leave. Okay. Okay. Good morning, Your Honours. My name is John Ridley. I am appearing on behalf of the appalant CBF trucking. I would ask respectfully for three minutes to be reserved
. It's granted. Thank you, Your Honours. May I please the court? In this case, Michael Mickins, a union driver for CBF trucking, was obligated to take United States Postal Service mail from one terminal to another. And he didn't. And he didn't. We now know he didn't. And he lied about whether he did first. And he lied about it. And his counsel now, in their appellees brief at page 14, acknowledged first that he never did make the trips. And secondly, that he lied about it. He lied about it not once, but consistently to management. There was a proceeding at which he was represented by union representatives in December of 2008. And he absolutely insisted that he had made his trips. He made all his runs. He was lying. Again, he insisted that the company go get additional information records, easy past Postal Service records. They did. They decided that they had good cause to terminate him because they knew he was lying. In January, after his termination is a grievance proceeding, he is again represented by the union. He again insists. Again, he is lying. The company affirmed this decision to terminate. That is the decision, and that is the issue. And those are the arguments that should have been presented to the arbitrator when the union filed for arbitration
. It didn't happen. Instead, Mickens, knowing that he was, as we put it, dead in the water, with an arbitrator. If indeed he consistently argued that he had made his runs, decided to change his story. But to do so, he had to engage in what Judge Thompson found to be a fraud. Because over a period of months, from the beginning of the arbitration through the arbitration hearing at the end of July, he hid from CBF tapes that he had secretly made, by the way, against company rules, but that he had secretly made, unbeknownst to his counsel at the hearings, and which tapes definitely showed that he was arguing that he had made his runs. Did you ever ask for those tapes? Yes, you are. We had a parallel proceeding going on in the State Superior Court in New Jersey, in which I was counseled. The arbitration proceeding. You're on a weird man for documents, including tapes. There was, Your Honor. Indeed, counsel argues in his at-police brief that there is no discovery in the arbitration, but we submitted a supplemental appendix, which showed that, in fact, his predecessor counsel had in writing demanded all evidence that we were going to rely upon, and we have certified that, indeed, we requested all evidence that they were going to rely upon. How did you request it? My phone call was a request in writing? Your Honor, we are not certain, to be honest. The people at CBF were handling the arbitration internally, without outside counsel, have not been able to find the letter that they believe was sent to Mr. Porter, then the counsel for Mr. Meckens. But I don't think there's any challenge in the record to the fact that, indeed, there was a demand for mutual discovery that we provided discovery and that we did not receive the tapes. Mr. Redley, I'm willing to accept all your arguments that you asked for it, that he didn't show it, that he didn't come up with it, and all that. I want to tell you a personal story. I don't usually do this. I want to tell you a personal story. I've been on this court for a long time, 32 years. Somewhere around 20-something years ago, I was in an arbitration, and I remember that it was with, I then chief judge whom I adored, judge sites. And the company was entitled to fire an employee who had been drinking, and they showed he had been drinking, and they fired him, and the arbitrator said, put him back
. And I thought, how can you do something like that? And those sites wrote the opinion, and said, you follow the arbitrator. You might not agree with what the arbitrator did, but that's the arbitration system. And for one reason or another, you just follow. And I always thought that was sort of unfair, but I've come to understand it. Now here, you don't want us to follow the arbitrator. Well, the district court followed. Judge Thompson followed the arbitrator. Isn't that the whole point of arbitration, whether it thinks it's unfair, thinks it's wrong, thinks he's not a nice guy, thinks he lied, and all of that? And Judge Thompson said, well, it doesn't get to the essence of the arbitration. So I'm going to follow the arbitrator. If the arbitrator makes... So that's why we shouldn't do that. If arbitrators make bad decisions, and they sometimes do, we can live with that. That's the essence of the collective bargaining process. And the grievance process. In other words, if the arbitrator listened to the tapes and still ruled against you, you could live with that. I think we could have, Your Honor. The fact of the matter is, it's inconceivable to me that the arbitrator could have listened to the tapes. No, I just thought it would just say. They did some sort of equity, some sort of magic. Why would we do that? But they do things, and we tend to follow them. The difference between the experience with the drinking employee is that.
.. I have no, do not know the facts, but it does not appear to me that that was a frustration of the process, of the arbitral process, and then of the judicial process. But in this case, the arbitrator knew that Mckins had given a different story at these earlier meetings. You had the notes that were taken. You impeached his credibility on that basis. The only thing you didn't have were the tapes. That's correct, Your Honor. We acknowledged that we argued at the arbitration that indeed Mckins was lying, and the arbitrator for whatever reason that is unclear to us said notwithstanding they was lying, we're going to reinstate him. They're on a different planet sometimes, but I don't understand. But when a person like Mckins lies in the arbitration proceeding, or in the process leading up to that arbitration proceeding, and frustrates it, and it is demonstrable that he lied, and he engages in fraud, which is what Judge Thompson found. She found fraud. Yes, you're something. All of that was before the arbitration. How would the tapes have changed anything? Your Honor, I submit respectfully that if the arbitrator had heard the tapes, which reflect Mckins, and as is conceded by the way by the union representatives, being surly, being non-communicative, refusing to even sit down at the grievance proceedings. And then lying flat out about it. The arbitrator couldn't have decided the way he did, but in any event, Your Honor, I submit that the fact of the matter is under 10A1 that this court still has the power to reverse and vacate the arbitration decision. I'm sorry. I wanted to ask you something about the tapes, Mr. Ridley, which is that as I understand the record, you made numerous requests for all documentation, including tapes. I counted about four separate letters in the civil proceeding. That's correct. I wanted to ask you what that civil proceeding was about, and when did you finally get the tapes? I'm going to say it was after the arbitration. I appreciate you, Judge. Judge, that civil proceeding was issued by Mckins and several other minority drivers for discrimination
. It was pending in the Superior Court. We saw at Discovery any number of times, as Your Honor has indicated, and Mr. Mckins intentionally held back those tapes in the civil proceeding as well until October of 2009, after the completion of the arbitral proceeding, and at a time when he thought that the tapes would be helpful to him in the civil suit that was pending. It came up during the process of deposition discovery, we said, well, you have tapes. He acknowledged it, and his counsel then produced tapes to us. That's how we found out after the arbitration about the tapes. Your Honor, it seems to me that the referencing section 10A1, which allows a court to vacate an arbitration award, where the award was procured by corruption fraud or under means. What do you consider that there has to be a causal relationship between the fraud or the on-do means and the award itself? Your Honor, I think that the settled third prong of the fraud test, starting with the Bonar case back in the 11th Circuit in 88, which has been adopted and accepted by numerous circuit courts, is that the fraudulent withheld evidence relates to the material issue of the arbitration. I submit respectfully that Judge Thompson misread the third prong of the fraud test under 10A1, because she found that there was fraud, but that we weren't the client. The material is not related to an issue in the arbitration, but not have a causal relationship with the award itself, right? Your Honor, well, first I submit that that is the test, that it must relate to a material issue. And I submit that you says procured by. Your Honor, I think that we are unable to read the mind of the arbitration. We have to look at the record, and we know from the record that the fraud, but fortunately withheld evidence did relate to the material issue that was in the arbitration. Your point is that the arbitration award was procured by on-do means, because the taste related directly to whether he did or he did not perform what he was supposed to do, which is to pick up the truck. That's correct, Your Honor. And Your Honor, we submit respectfully that the concept of undue means, which is disjunctive in the statute, 10A1, should be considered separately by the court. And we acknowledge that that has not historically been the case. The courts have treated fraud and undue means conjunctively, but clearly we read them as being disjunctive because the third prong of that test is corruption, which is clearly. The undue means is withholding evidence. Your Honor, the undue means yes, and it is withholding evidence, it is lying in the proceedings. But the arbitrator knew that. Excuse me. The arbitrator knew all of that. Judge Thompson said, and I know I'm going beyond the red light, but I'm entitled
. And any of them are entitled to. Judge Thompson said that CBF should have course examined Mickens. Did you not course examined Mickens? What did she mean by that? Your Honor, there is no record of the arbitration proceeding itself in house personnel from CBF were handling the arbitration. And I think we would concede that they brought up the fact that Mickens had previously said that in fact he had made his runs. Your Honor, one final thing I would add is that that is what the arbitrator should have been looking at. It's clear he went well beyond that, but we argue the issue of the clock stops. But it is such a basic principle of law that the arbitrator should be looking at whether the employer had good cause at the time of the decision to terminate. Not whether Mr. Mickens can conjure up a new revised story seven months later. And in somehow, in some method, finesse the arbitration. That's the unique problem that's an issue of law that we say demonstrates also the manifest disregard by the arbitrator for the law. Thank you very much. We'll hear you in rebuttal. Thank you. Mr. Hamel, no, no, you're not Mr. Commissioner. Mr. Connott, do you mind if I turn that back on? Yes, Your Honor. May I please the court? Yes, Your Honor. Mr. Connott, the appeal is IBT, local 701. It represent the union. That's right, Your Honor
. Before I respond to some of the points raised by a council for the appellent, I'd like to clarify a point that I don't think was entirely grasped by the district court in its opinion. And that is something that you think the district court was wrong. I mean, you're here as the appellate. Of course. The point that I don't think was entirely grasped by the district court was the degree of discovery that takes place in labor arbitration. The district court seemed to accept the employer's position that there's comparable obligation to produce discovery in labor arbitration as there is in civil litigation or as in a criminal proceeding. And I submit you, that's simply not the case. Do you think the union gets a free run? No, of course not. So? But what I do think is that in order to saddle Mr. Mickins and the union in this matter with a duty and obligation to have produced discovery, specifically, these tapes that we're talking about, it had to very least have been an informal letter shot off from the employer to Mr. Mickins or union council saying we want these materials, which hasn't been produced not far the record. It's suggesting to us that Mr. Mickins did in fact or would have in fact produced these because that they weren't requested. I, you know, I can't read this record and find that. I don't think I'd go so far. But what I will note is that the employer has not produced records of their request. And so you're not conceding that a request had been made. That's exactly correct. More or less had been made numerous times before the arbitration where had those requests and honored the tape would have been disclosed, you know, you know what the spute tape. I think I'm interpreting your statement as meeting in the state court actions. Yes, sure. Right. It's still a request for discovery and it's specifically reference recordings. That's right
. But it's worth pointing out that in that, Mr. Mickins behavior and that separate state court action was dealt with by that court. And as I recall, he was, there was a fine, there was a sanction for that misbehavior. Well, but the thing is, I don't want to read too much into it, but it might have been very convenient for him not to disclose that tape because it went completely contrary to the version he presented in arbitration. I won't dispute that. That's what Mr. Ridley was just saying. Right. So why do I want to yield these tapes? It's going to really ruin my story before the arbitrator. Well, to your point, it's crucial to recognize that the tapes were of the December 08 meeting and the January 09 meeting. These weren't meetings over at the Union Hall between the business agent and Mr. Mickins. These weren't unions of conversations between Mr. Mickins and the court. It was the employer was there. The employer's supervisor was thinking wasn't it? Yeah, I just love it. It just said so what? I was thinking the same thing. The point is that in those conversations, two separate conversations, he recorded himself saying, I did what I was supposed to do. I left the depot or the area with the trailer as I was told to do. Then he... I believe it's taken place. I made all my runs
. He lied. There's no question that he lied. Mr. Finkel, the in-house counsel for the employer, prepared minutes of this meeting. It was introduced at the arbitration as the employer, because at the 13th, it's noted in the appendix that page 51 is our call. So every statement Mr. Mickins made, every inconsistency that was brought up at the arbitration was memorialized and the employer's... You can't defend Mr. Mickins, can you? No, I'm not saying we should admire his behavior. I'm not defending his... I'm not defending his behavior. It was terrible. I mean, he lied about what he was supposed to do. He lied about... The company says, well, he lied and we don't want to take him back. The arbitrator said, take him back and the district court said, you know, he lied and it was fraud. I agree with all that. But it was a fair arbitration. It was a fair hearing and so I'm going to follow it. That's the way we do things. You can't defend it. Judge, I think that what the district court said was that because of the arbitrator noting inconsistent statements by Mr. Mickins, I think what the judge Thompson pointed out was that because the arbitrator recognized and expressly included in his opinion that yes, they were inconsistencies and yes, he had to make a credibility determination and yes, maybe he didn't think that Mickins was 100% truth telling General. I knew the problem that Mr. Canawton is that it's one thing to note inconsistencies that were brought out by hearsay because it's really the employer saying we had a hearing before and this is what he said. But it's quite another thing for the arbitrator to be listening to the tape itself, to be listening to the employee himself on a tape on two separate occasions saying completely to different sorts. And that's what the arbitrator did not have the opportunity of doing and that was because... He hid them. He hid the tapes. It's a totally different story. I agree with you that that's what... And the question is should the arbitrator's decision be... I mean, it's something we don't... I don't remember ever doing it, but I've never remembered a case like this
. It was a fair hearing and so I'm going to follow it. That's the way we do things. You can't defend it. Judge, I think that what the district court said was that because of the arbitrator noting inconsistent statements by Mr. Mickins, I think what the judge Thompson pointed out was that because the arbitrator recognized and expressly included in his opinion that yes, they were inconsistencies and yes, he had to make a credibility determination and yes, maybe he didn't think that Mickins was 100% truth telling General. I knew the problem that Mr. Canawton is that it's one thing to note inconsistencies that were brought out by hearsay because it's really the employer saying we had a hearing before and this is what he said. But it's quite another thing for the arbitrator to be listening to the tape itself, to be listening to the employee himself on a tape on two separate occasions saying completely to different sorts. And that's what the arbitrator did not have the opportunity of doing and that was because... He hid them. He hid the tapes. It's a totally different story. I agree with you that that's what... And the question is should the arbitrator's decision be... I mean, it's something we don't... I don't remember ever doing it, but I've never remembered a case like this. One of the questions that is as fundamental to the cases that cited in the balanced papers is that the general question is was the party entitled to a fair hearing. By that I mean, and I think the Court's interpreter does, did the arbitrator have all the information necessary to do so? And if this is a case where the information on those tapes was something that was unknown to the employer, they had no idea about. He made some statements that they realized that the first time after the opinion was rendered, it would be a completely different scenario. But again, as you noted, while the arbitrator didn't have a chance to hear Mr. Mickens voice, didn't have a chance to address the volume or pitch the statements on those tapes, was included in the arbitration, was included in this. I'm taking a different position. Are you taking a much more defensible position than you did at the beginning, when at the beginning you made it sound to some extent as if you were defending Mr. Mickens? I don't think he's defensible at all. I wouldn't have said to take him back, but the question is, what does the Court system do when it's dealing with an arbitration that we think is wrong, but that's still part of the system? And now you're getting to that, and you didn't at the beginning. We didn't miss this shift in your argument. Well, I just had a different order of my claim, and you have to. Why shouldn't it be viewed as a corruption of the arbitration system, of the judicial system? I'll go back to my first point that I know Judge Ben Kerefort, which was that search the case law, search the NLMB regulations, search the rules and governing policies of the New Jersey State Board of Mediation. There's nowhere where it will say a party to the arbitration has an affirmative obligation to unilaterally produce discovery before it's requested. There's a state statute in New Jersey that permits a party to arbitration to issue a subpoena, and the name of the arbitrator. It wasn't a subpoena. It was not that it was requested. I don't know if he kept, he withheld it, knowingly withheld it, and the question is, isn't that a corruption of the arbitration system? I smith you, it's not. And to your earlier statement, I don't accept that it was requested in the context of this arbitration. That's a matter, though, because the district judge, Judge Thompson, made a finding that there was fraud on the part of Mr. Mckins. I think you have to accept that finding. Now, the question is, in my mind, at least, what does that mean? Does it mean that the award itself had to be procured by fraud or on do means? And is there enough evidence that it was procured by those means? Or is it simply enough that it related to a materialist? Obviously, his credibility is a materialist issue. I'm talking about.
. One of the questions that is as fundamental to the cases that cited in the balanced papers is that the general question is was the party entitled to a fair hearing. By that I mean, and I think the Court's interpreter does, did the arbitrator have all the information necessary to do so? And if this is a case where the information on those tapes was something that was unknown to the employer, they had no idea about. He made some statements that they realized that the first time after the opinion was rendered, it would be a completely different scenario. But again, as you noted, while the arbitrator didn't have a chance to hear Mr. Mickens voice, didn't have a chance to address the volume or pitch the statements on those tapes, was included in the arbitration, was included in this. I'm taking a different position. Are you taking a much more defensible position than you did at the beginning, when at the beginning you made it sound to some extent as if you were defending Mr. Mickens? I don't think he's defensible at all. I wouldn't have said to take him back, but the question is, what does the Court system do when it's dealing with an arbitration that we think is wrong, but that's still part of the system? And now you're getting to that, and you didn't at the beginning. We didn't miss this shift in your argument. Well, I just had a different order of my claim, and you have to. Why shouldn't it be viewed as a corruption of the arbitration system, of the judicial system? I'll go back to my first point that I know Judge Ben Kerefort, which was that search the case law, search the NLMB regulations, search the rules and governing policies of the New Jersey State Board of Mediation. There's nowhere where it will say a party to the arbitration has an affirmative obligation to unilaterally produce discovery before it's requested. There's a state statute in New Jersey that permits a party to arbitration to issue a subpoena, and the name of the arbitrator. It wasn't a subpoena. It was not that it was requested. I don't know if he kept, he withheld it, knowingly withheld it, and the question is, isn't that a corruption of the arbitration system? I smith you, it's not. And to your earlier statement, I don't accept that it was requested in the context of this arbitration. That's a matter, though, because the district judge, Judge Thompson, made a finding that there was fraud on the part of Mr. Mckins. I think you have to accept that finding. Now, the question is, in my mind, at least, what does that mean? Does it mean that the award itself had to be procured by fraud or on do means? And is there enough evidence that it was procured by those means? Or is it simply enough that it related to a materialist? Obviously, his credibility is a materialist issue. I'm talking about... ...materialist, materially relate to an issue in the arbitration. The pivotal question of the arbitration was, was there just cause to discharge Mr. Mckins? It's a heavy burden, the employer has to carry because that's how it is stated in the collective bargaining agreements all over New Jersey. And in this case, well, the two points you raised, Judge, about was there... was a corruption or fraud or under means, and also was the information on the tapes involved material issue. Because the information on the tapes was memorializing the minutes, was discussed at the arbitration, and there was no new information. There was nothing unknown to the employer that came out through these tapes. Whenever they emerged, I think they had a question. I think there was a question. Was Thompson aware of the existence of the tapes that any time... I apologize, I'm not able to answer that, Judge. But Judge Thompson knew about the tapes. That was the whole issue before, right? I'm sorry, yes. Yeah, well, are the tapes part of the record before us? Oh, I'm sorry, I can't answer that either. I expect Mr. Ridley will discuss that
.. ...materialist, materially relate to an issue in the arbitration. The pivotal question of the arbitration was, was there just cause to discharge Mr. Mckins? It's a heavy burden, the employer has to carry because that's how it is stated in the collective bargaining agreements all over New Jersey. And in this case, well, the two points you raised, Judge, about was there... was a corruption or fraud or under means, and also was the information on the tapes involved material issue. Because the information on the tapes was memorializing the minutes, was discussed at the arbitration, and there was no new information. There was nothing unknown to the employer that came out through these tapes. Whenever they emerged, I think they had a question. I think there was a question. Was Thompson aware of the existence of the tapes that any time... I apologize, I'm not able to answer that, Judge. But Judge Thompson knew about the tapes. That was the whole issue before, right? I'm sorry, yes. Yeah, well, are the tapes part of the record before us? Oh, I'm sorry, I can't answer that either. I expect Mr. Ridley will discuss that. Okay, thank you. Thank you, it's all. You have nothing more to say. Okay, do you have any questions? That's not the question. You mentioned the... I think what you referred to as the decision of the employer is made at the time that the employer... discharges the employee, and that's what we should look at, is that? I think that your clock stops, Ruhl. I think that you're thinking of... Ponce Council's discussion of the clock stops, Ruhl, but because you raised a point, I'll address it in tow. The clock stops, Ruhl, if such a Ruhl does exist in New Jersey, which I don't can see that it does, and I think that the parties' papers demonstrate that lack of Ruhl's applicability in New Jersey, but the Ruhl itself would, as you mentioned, as the Ponte Council noted. It suggests that the arbitrator looks at the employer's decision at the time that it is made. And if we freeze the... Yeah. ..
. Okay, thank you. Thank you, it's all. You have nothing more to say. Okay, do you have any questions? That's not the question. You mentioned the... I think what you referred to as the decision of the employer is made at the time that the employer... discharges the employee, and that's what we should look at, is that? I think that your clock stops, Ruhl. I think that you're thinking of... Ponce Council's discussion of the clock stops, Ruhl, but because you raised a point, I'll address it in tow. The clock stops, Ruhl, if such a Ruhl does exist in New Jersey, which I don't can see that it does, and I think that the parties' papers demonstrate that lack of Ruhl's applicability in New Jersey, but the Ruhl itself would, as you mentioned, as the Ponte Council noted. It suggests that the arbitrator looks at the employer's decision at the time that it is made. And if we freeze the... Yeah. ...suspend reality and freeze the clock, and look at when they decided to charge Mr. Macon's, what did they know? Well, they knew exactly what Mr. Macon said said at these two meetings. They knew that the demeanor he had in the room as early or inappropriate as the employer contends it was, but they knew what he said. They knew what he claimed he had done and hadn't done. And so even if the clock stops will plies, which, again, I'll leave it to the court, but there's nothing new that came after the clock stopped, other than hearing his voice itself, as you noted. And do you know... Now I have a follow-up question. Do we know whether at the arbitration hearing itself, the employer argued the clock stops, doctored, or even raised the issue to highlight it for the arbitrator? I can't answer the question either way. One thing that... Do you think it's fair for Mr. Macon's to receive back pay for a period in which he also received an employment compensation? I do think it's fair, but what I will... Well, in other words, he's getting paid twice for the same period, isn't he? What I'll defer to is in our papers when we describe the discretion given to arbitrators a fashion of remedy. And in doing so, the arbitrator's matter made a decision on that. I think the record also reflects, as does Judge Thompson's opinion, that evidence of the unemployment insurance compensation received, it didn't appear to the district court that it was discussed at the arbitration. And so it wasn't clear whether it was even part of the record. So on that, it's a cloudy area. But if you think about it from a different perspective, Mr
.suspend reality and freeze the clock, and look at when they decided to charge Mr. Macon's, what did they know? Well, they knew exactly what Mr. Macon said said at these two meetings. They knew that the demeanor he had in the room as early or inappropriate as the employer contends it was, but they knew what he said. They knew what he claimed he had done and hadn't done. And so even if the clock stops will plies, which, again, I'll leave it to the court, but there's nothing new that came after the clock stopped, other than hearing his voice itself, as you noted. And do you know... Now I have a follow-up question. Do we know whether at the arbitration hearing itself, the employer argued the clock stops, doctored, or even raised the issue to highlight it for the arbitrator? I can't answer the question either way. One thing that... Do you think it's fair for Mr. Macon's to receive back pay for a period in which he also received an employment compensation? I do think it's fair, but what I will... Well, in other words, he's getting paid twice for the same period, isn't he? What I'll defer to is in our papers when we describe the discretion given to arbitrators a fashion of remedy. And in doing so, the arbitrator's matter made a decision on that. I think the record also reflects, as does Judge Thompson's opinion, that evidence of the unemployment insurance compensation received, it didn't appear to the district court that it was discussed at the arbitration. And so it wasn't clear whether it was even part of the record. So on that, it's a cloudy area. But if you think about it from a different perspective, Mr. Macon has an affirmative, has a legal obligation to reimburse unemployment. That's... Are we does? If he receives back pay for a period that he received unemployment... That's his problem, my gosh. ...and typically how it's done is he'll take care of it on his own. Union doesn't make him do that. Not that I've ever seen, but because it's his responsibility, they're not overseeing him and... But finish the sentence, you know. Yeah. So it's your position that there doesn't have to be a causal relationship between his failure to produce the tapes and the arbitral decision. Is that... is that.
. Macon has an affirmative, has a legal obligation to reimburse unemployment. That's... Are we does? If he receives back pay for a period that he received unemployment... That's his problem, my gosh. ...and typically how it's done is he'll take care of it on his own. Union doesn't make him do that. Not that I've ever seen, but because it's his responsibility, they're not overseeing him and... But finish the sentence, you know. Yeah. So it's your position that there doesn't have to be a causal relationship between his failure to produce the tapes and the arbitral decision. Is that... is that... I wouldn't go so far, Your Honor. What I would perhaps reword your statement and say... There does need to be a causal relationship between whatever conduct is alleged and whatever the result was. But differently. Well, that's very vague. You want to be a little more specific. Sure, sure. In order to... Let's assume for just a moment that there was fraud and that there was... Well, the district court said there was fraud. I mean, we have to accept it. I'm not prepared to reverse her on that. Let's assume that there's fraud and what was the result? What did this fraud produce? What I'm saying? The fraud produced a situation where, as a judge noted, the arbitrator didn't get to hear Mr. Mickens voice. That's the only substantive limitation, the only difference, the only result from what the fraud caused was..
.. I wouldn't go so far, Your Honor. What I would perhaps reword your statement and say... There does need to be a causal relationship between whatever conduct is alleged and whatever the result was. But differently. Well, that's very vague. You want to be a little more specific. Sure, sure. In order to... Let's assume for just a moment that there was fraud and that there was... Well, the district court said there was fraud. I mean, we have to accept it. I'm not prepared to reverse her on that. Let's assume that there's fraud and what was the result? What did this fraud produce? What I'm saying? The fraud produced a situation where, as a judge noted, the arbitrator didn't get to hear Mr. Mickens voice. That's the only substantive limitation, the only difference, the only result from what the fraud caused was... It could be a huge difference, just like presenting to a jury here, say, testimony or presenting to the jury, the actual testimony of the person whose credibility the jury has to assess. I would submit that the meat of what's on those tapes is the facts. It's the statements that, as the arbitrator noted, were inconsistent statements. And the arbitrator made the interpret to credibility determination and also noted, in his opinion, that the lack of substantial non-hearsay testimony from the employer is something that he based his opinion on. In other words, the arbitrator knew that at the time of the hearing, at the time of these meetings, he gave one story and now was given a different story at the time of the hearing itself. That's precisely correct. I see my time is up. Yes. Saved by the red light. Here on his judge's point, there is, I think, hit the nail on the head when you spoke about the corruption of the arbitral system. If ever, there was a case that cries out for correction because of the attempt successful to date to corrupt the arbitral system, this is it. This is a man who flat out lied at the time when it was critical that he told the truth because the employer was making the decision in December and January of 2008-2009, as to whether it had good cause. It should not then be submarineed seven months later at an arbitration proceeding by Mickens, for the first time, coming up with a new story and at the same time, hiding evidence, refusing to produce evidence. That would have completely undermined his new story. That's what happened here. And you have hundreds of truck drivers at this company who are unionized drivers who are aware of this proceeding. Mr. Mickens was in the Civil Litigation then. He's in new Civil Litigation now after his reinstatement. He has left at this company and at the arbitral and judicial system. We don't know that. That's speculation. Your Honor, for him to come into the arbitration and to change the story seven months after he had given it to us- He lied. He lied
. It could be a huge difference, just like presenting to a jury here, say, testimony or presenting to the jury, the actual testimony of the person whose credibility the jury has to assess. I would submit that the meat of what's on those tapes is the facts. It's the statements that, as the arbitrator noted, were inconsistent statements. And the arbitrator made the interpret to credibility determination and also noted, in his opinion, that the lack of substantial non-hearsay testimony from the employer is something that he based his opinion on. In other words, the arbitrator knew that at the time of the hearing, at the time of these meetings, he gave one story and now was given a different story at the time of the hearing itself. That's precisely correct. I see my time is up. Yes. Saved by the red light. Here on his judge's point, there is, I think, hit the nail on the head when you spoke about the corruption of the arbitral system. If ever, there was a case that cries out for correction because of the attempt successful to date to corrupt the arbitral system, this is it. This is a man who flat out lied at the time when it was critical that he told the truth because the employer was making the decision in December and January of 2008-2009, as to whether it had good cause. It should not then be submarineed seven months later at an arbitration proceeding by Mickens, for the first time, coming up with a new story and at the same time, hiding evidence, refusing to produce evidence. That would have completely undermined his new story. That's what happened here. And you have hundreds of truck drivers at this company who are unionized drivers who are aware of this proceeding. Mr. Mickens was in the Civil Litigation then. He's in new Civil Litigation now after his reinstatement. He has left at this company and at the arbitral and judicial system. We don't know that. That's speculation. Your Honor, for him to come into the arbitration and to change the story seven months after he had given it to us- He lied. He lied. We all accept the fact that he lied. The arbitrator accepted the fact that his credibility was zilt. Judge Thompson accepted that. And they still upheld the arbitral award. And I submit respectfully that Judge Thompson made an error of law when she in essence said that the third prong of the fraud test for vacation of an arbitral decision under 10a1 is a but-for-test. I don't I submit respectfully that it is not a but-for-test that the test is whether he fortunately withheld evidence which related to the material issue of the arbitration. That's the test. And I submit respectfully that if you apply that test, this decision has to be vacated. I think that test comes from that language procured by. Your Honor, that test has been accepted by any number of circuits over the over the years. So that have that have also said there has to be a causal relationship between the fraud and the award itself. And and you're on I think that the language of that test is the appropriate language. I think that for the courts to be looking back at an arbitration proceeding to determine whether it's but for is extraordinarily difficult when there are no records made at the entire arbitration proceeding and alike. I think that test should be applied here. I think too that the separate disjunctive undo means section of 10a1 should be applied. And that test has been stated to be behavior that is immoral if not illegal. And this is immoral behavior. Sure, Mr. Ridley. I didn't notice anything in the briefs, but do you know of an arbitration award that has been vacated on the facts similar to this case? You know, we did not we searched and we're not able to find any that was vacated. What I would note in that regard though is that Justice Alito in the Stolt-Neilsen decision at footnote three made what I thought was a very interesting comment with respect to the manifest disregard issue. And he said in that case that with respect to the decision in of the arbitrators in Stolt-Neilsen, the language that he used was in essence that that it would be sufficient that the facts in Stolt-Neilsen would be sufficient to show manifest disregard by the arbitrators when they determined that the interpretation of the contract in Stolt-Neilsen was such that they could order class arbitration. I think that if you apply the Stolt-Neilsen, if you first find that hole did not deprive the court of the opening manifest disregard as a basis for a vacation of an arbitration award. We're going to write this one
. I'm sorry, Your Honor. Thank you. Thank you very much. Thank you