Legal Case Summary

your ed, Mr. Murphy. Thank you. May I please, the court, and good morning. My name is Mark Murphy. I'm here on behalf of Teamsters Local Union number 96. Just to give you a little factual background about what this case concerns, this is a case where the union is seeking reversal of the district court's decision. We got counsel of all the side. Oh, that's where you were sitting. Okay, I thought you should see in that. As I was saying, this case involves the union's challenge in seeking to reverse the district court's decision that vacated our labor arbitration award rendered pursuant to a collective bargaining agreement between the union and the company Washington Gas. A reversal of this of the district court's decision and enforcement of the arbitration award is appropriate because the district court improperly stepped into the shoes of the arbitrator and substituted its own judgment for that of the arbitrator. Now, the parties as part of their contract collect the bargaining agreement agreed to embark for an arbitrator to resolve disputes over the interpretation of their collective bargaining agreement. Specifically, the contract provided that the arbitrator with brought authority to interpret and apply provisions of the labor contract. That's precisely what this arbitrator did here and the district court should not have disturbed the arbitration award. Now, there's no dispute. The law is very clear that judicial review of a labor arbitration is, as this court has explained, extremely narrow. In fact, it's amongst the narrowest known to the law. The court's role in reviewing arbitration awards is simply to determine only whether the arbitrator did his job, not whether he did it well, not whether he did it correctly or reasonably, but simply whether he did it. So if the court, district court in this case, disagreed with that arbitration award, that's not enough. He needed to determine that the arbitrator abandoned his job of interpreting and applying the contract. And thus, as the Supreme Court has explained in Garvey, if an arbitrator is arguably constricting or applying the contract, then his decision should not be disturbed. An arbitration award must not be disturbed regardless of whether the reviewing court believes the arbitrator committed a serious error or if his award was in provenant or even silly. And as the union explained in his brief, because the district court far exceeded its role in reviewing the arbitration award here, he conducted what we essentially argue is a denover review of the arbitration award. The court's decision should be reversed and the case should be remanded with instructions to enforce the arbitration award. Now, the particular facts of this case are not complicated. This case involves the arbitrares interpretation of a contractual provision with respect to removal of an arbitrator from the term of the contract, either party may for any reason strike up to two arbitrators from the panel of arbitrators

. If the company or the union likes to strike an arbitrator, it must do so no later than 24 hours before the time the arbitration hearing is scheduled to begin. Now, in this case, the hearing, the arbitration hearing was a termination case. The employee was terminate back in February of 2012. The arbitration hearing was scheduled for August 14, 2012. Prior to that date, the company saw and was granted two postponements, one to November 15, one to December 6, 2012. Hearing was set to go forward on the 6th of December. At the end of November, the company notified the arbitrator and the union that it was invoking the contract provision and removing that arbitrator from the panel. The union disagreed with that position decision. That's not consistent with the contract provision and suggested that the party's move on to arbitration. Also suggested that decision itself, the interpretation of the removal provision, was inherently part of the arbitrator's job. Now, of course, the company disagreed with that and in fact, the company did not show up at the hearing. Can I ask you about that? What if any consequence or significance is there or should there be in respect to the apolese failure to appear and participate? Yes, Judge Davis. We would say there's a significant impact to that. The party's agreed to resolve all the disputes under the contract through an arbitrator. Now, understand that. They got noticed. They received. Company got noticed. Of course, they got noticed. They just decided we'd stricken this arbitrator and we're not even going to show up. Not even to observe what happens. Yes, Your Honor. What they did was essentially said, our version and our interpretation of the contract and the removal provision trumps the unions and therefore we're standing in our interpretation and nothing the arbitrator can do is going to change our mind. So they didn't present any argument. So my question is, is there any significance in that? In other words, would the case be here in a different posture? Obviously, it would be on the facts, but on the law, would the case be before us in any different posture? Had they appeared, made the arguments that the arbitrator was without authority lost and then go on the district court? Do you anyone say no? It's simply what the court is looking at is the decision of the arbitrator. I don't know what the company would have presented as far as evidence

. I assume they would have contested our position. Well, they could have argued that there's no ambiguity late nor otherwise. That what they did in striking the arbitrator was perfectly consistent. That's right, Your Honor. They could have argued whatever they wanted. At the end of the day, what the court looks at is whether or not my question to you and I'm not sure I'm expressing it or you're understanding it. Is there any significance? I guess is there a waiver of some sort or a forfeiture of some sort? Well, were they entitled as a matter of law? Did they have the choice of either showing up and contesting the arbitrator's action and then going to district court on a motion for vacator or not showing up at all waiting to the arbitration award was made and then going to district court? Is there any significance to that? I don't think that's not brief, right? No, and I don't. The union would say that with respect to their choice, they made their choice. We don't think there's any. I'm a little surprised that your answer. Frankly, I thought your answer might be, yeah, Judge, they waived this objection, but that's not your answer. I think in our brief, we do say that there are certain arguments that they may have waived with respect to procedural issues that they should have and could have raised during the hearing. The real issue, though, your honor is if they had shown up and disagreed and the arbitrator still ruled in our favor and said, I find that this is my interpretation of the removal provision. I still believe I have jurisdiction and ruled. They still certainly could have gone to district court. We don't believe that's appropriate. They might have persuaded the arbitrator to contrary argument that they were right. Well, that's the whole point of having an arbitration procedure, your honor, and labor contracts is to certainly move things along. Here we are two years, more than two years later, and that's absolutely right. Now, what the arbitrator did look at and what was the issue of the case was the language itself, and the question was, was it ambiguous? The union argued with respect to rescheduled hearings. It certainly was ambiguous. This court has ruled that the question of whether or term a contract term and a labor contract is ambiguous. That in itself is part of the labor arbitrator's interpretation of the contract. That was in the PBG Industries case and the Intermediate Court case. So what we're saying is the arbitrator did exactly what he was bargained for, what the parties chose him to do, which is he took a contract term. The union said it was ambiguous

. Companies said it wasn't. What did their arbitrator do? He went and looked at bargaining history to determine whether or not there was anything in this bargaining history that would allow him to reach his conclusion. There was. This wasn't the first time this happened, in fact, with these two parties. In the previous negotiate, under the previous contract, company did the same thing. They tried to remove an arbitrator. They didn't show up adhering. In that contract, the language was only during the term of the contract any party could remove an arbitrator. So the issue was during this term of the contract, when an arbitrator's are appointed, can he still be removed? The arbitrator ruled, no. Once I'm appointed, I've issued decisions. You're stuck with me. The parties, at least the company didn't like that. So the next round of bargaining, they went and said, we need to change this. We want to insert language that says a party can remove an arbitrator any time up to before the first witness is sworn in a hearing. The union said, we don't want that. That's going to cost too much delay. That's going to cost too much time consuming. We're happy with the language where it is. They reached a compromise. The compromise was 24 hours before scheduled hearing. That was heard by the arbitrator. Did you say 24 hours before scheduled hearing? Before the hearing is scheduled to begin. That's two different things. I actually believe it can be read three ways. But the language is the time for the time the arbitration hearing is scheduled. Right

. It's a good time to begin. So we're modifying the word time. We're trying to find out what date that is. So it could either be the arbitration hearing is scheduled, the time for it is scheduled, or we could treat the hearing as the object that modifies time and read it, the arbitration of the scheduled hearing, a hearing which is scheduled and focus on the hearing date. Yes, sir. So you have a date either before June 1 when it was scheduled, or before August 14 when the hearing was scheduled to begin. Right. And me neither, right? Sure. And your questioning shows that the ambiguity with respect to that language. And of course, when you say we, the law is that it's not the court that determines whether it's the first interpretation, the second interpretation, the third interpretation. Well, there's a limit to that because the whole thing is contractual and to the extent that we're looking at the overall authority, the arbitrator we look to be agreeing with, and that's a court issue. Sure. But there's no. Well, if the arbitrator I guess can decide is on jurisdiction and resolve these issues, I'm not sure what their position on that is. They believe that they don't deny the arbitrator had the authority to make a decision. They just disagree with whether it's ambiguous and the arbitrator should have decided. You are asking about the company's position, your honor? I think what the company is, Mr. St. Tuchy, I'm sure, will articulate their position, but they believe that their unilateral decision to remove the arbitrator and impose the company's interpretation of the contract provision thereby removed jurisdiction from the arbitrator. So he was without power to conduct the hearing. The union's position is that- Why don't you address the one question. This is the issue given to the arbitrator in this case, on this point, whether he has authority to decide whether he's removed or not. Might be affected by the fact that he's going to get $6,500 and set $2,000. Well, we have that. Sure. How do you take that on? Well, I think that argument is without merit, your honor, frankly

. The record really is that there was a $2,000 cancellation fee. There was a $6,000 or so fee that was split by the party. So really, he was paid almost as much as he would have if he conducted the whole hearing. And the fact of the matter is the only case that the company cites to with respect to that is an arbitrator that was being removed from a permanent panel and that was a lucrative position. This arbitrator, he's gone. This is the last case he's heard. So it's not an issue of him earning money going forward. But your argument is that there's not enough money to affect by. It's de minimis. And just one point is that the real issue here is the district court's decision. And what happened with the district court is the district court was very, very opposed to what happened in this case, because they read the contract language. In fact, what Judge O'Grady did was he sat as the arbitrator. He took off his judicial robes and he said, I'm going to be the arbitrator in this case. And I'm looking at this and I don't see any ambiguity here. And therefore, he said the arbitrator got it wrong. And he indicated to the union when the union suggested ambiguity is part of interpretations for the arbitrator, even if he gets it wrong, even if he disagree with him. He simply said, that's not the law. Well, we would submit the union would submit that that is the law. That part of bargaining for an arbitrator is that's who you get to decide your cases. He's not going to win every case. The union's not going to prevail in every case. The company's not going to prevail. But that is under federal labor law. That is the preferred and method of resolving disputes. So our whole point, your honors, is that the judge overstepped here. He didn't recognize that there's a very, very narrow job for a court to do in reviewing an arbitration decision

. And what he really did was a denover review. Yeah. And I take it that the argument is that in violation of the CBA, the arbitrator here quote, altered, extended or modified. Sure. And you hear that. My time is up and out. Certainly respond to that, Joe. You hear that all the time in the decisions where a company comes and tries to say all he did was interpret it. You have to interpret it, right? That's you have to interpret and apply. So he didn't alter it. He didn't add anything. The district court said he added initially scheduled. Well, he didn't do that. All he did was he chose between plausible contensions. And that's what the job of the arbitrator is. We would ask that. Well, that's the third interpretation I suggest exists. It says hearing is scheduled. And the argument could be that the November 15 and December 6 dates were not scheduled by the parties. They were postponements over hearing that had already been scheduled. And a postponement may not be fit into the category of what the contract says is scheduled. So that is a third. Seems to be a third possible. Sure, sure. You're on. That's the one the company advocates

. Sure. And again, that postponement is a formal schedule. Right. And that was the job the arbitrator did to go through. Whichever, however many options he thought that that plausible contensions that provision could have made. He did that. He listened to bargaining history, which is perfectly appropriate. And he rendered an award. And we're standing here right now asking that that award be affirmed. Thank you. Thank you. Let's hear it from the company. Good morning, Your Honors. May please the Court, Joe Santucci, on behalf of Washington Gaslight Company. Judge Davis, to turn to your question, there was no waiver here. I am not sure why the company decided not to participate. I'm assuming the company believed that had it shown up for the hearing. You would have consented to having arbitrator Ross here, the case. It shows not to had we gotten the same decision. I suspect I would still be standing here before you today. Exactly. And I think for myself, in a much better light, because in fact, you might well have persuaded the arbitrator, as you participated, that he was wrong. And you wouldn't be here at all. And that might all be true, Your Honor, but the fact remains, the arbitrator did go ahead and issue a decision. So apart from the other legal issues, why should a court indulge? You see where I'm going. You see exactly what I'm saying

. Just as a matter of judicial administration, if a party didn't show up before a district court, I suppose on a matter of law, we'd still have jurisdiction when they appeal. Anyway, go ahead. I don't want to take that. I mean, the fact that the U.S. was not arbitrator Ross, I mean, I'm not saying that this matter was not arbitratable. I mean, this matter is arbitratable. It shouldn't have been arbitrated by arbitrator Ross. I mean, that's obviously our position, that he had no authority to hear that case. But the fact remains that we're dealing with a contractual issue here, and regardless of whether our client had shown up at that hearing. So that, if it's ambiguous, and we can talk to you for, I think there are three possible positions at least on reading this. But if it is ambiguous, and he decides that the best reading of this ambiguous clause is that notice has to be given for fourth, June 1. We shouldn't interfere with that, right? I would say two things, Your Honor. One, I have to concede that there is an ambiguity, and obviously, you know, we do not believe there's any ambiguity in the language. The language says if the company or the union elects a strike an arbitrator, it must do so no later than 24 hours before the arbitration hearing is scheduled to begin. You left out a word, an important word, the most important word, before the time, doesn't it say? No, it says before, no later than 24 hours before the arbitration hearing is scheduled to begin, I believe you're on. Oh, okay. That's a lot different than what I have. It doesn't have the time before, before the time, the arbitration. My understanding is Article 1866 and 16A. Okay, no fair enough. I'll just take a look. And I think, Your Honor, if you look at this case, do you think the controlling word is hearing, or do you think the controlling word is scheduled? I think, Judge O'Grady got it exactly right. Is scheduled. Is scheduled. Is scheduled

. Well, if it's scheduled, if it's scheduled, then June 1. Well, Your Honor, one thing this Court said in time. I thought your position was before the hearing date. Well, I'm saying before the hearing is before the arbitration hearing is scheduled to begin. What Judge O'Grady said, you have to insert the word initially scheduled. No, no, no, no, no, no, let's leave that aside. That's a different issue. I'll take that up with you, too. But I'm trying to find out whether the date that we're looking at is the date it is scheduled, the scheduling, or the date of the hearing. The date of the hearing. J.A. page 134 reads the way Judge Neemar says it reads. Hit the words, the time. 24 hours before the time, the arbitration. No, but our position is the actual hearing date. It is the time. That's pretty key because time is a date. And it says the time. And now it's modified by the clause. The arbitration hearing is scheduled. Now, it seems to me the arbitration hearing is scheduled on the date June 1. You could read it another way. I think it's a little more strained before the time, the arbitration hearing, and read scheduled as modifying hearing. A scheduled arbitration hearing. But I don't quite say that

. It says date. It is scheduled. Now, then you get the third problem is whether a postponement after a discheduled, whether a postponement amounts to this type of arbitration hearing being scheduled. And I'm not sure a postponement is the scheduling of the hearing. It's just changing the date. Well, if you look at it, we've already scheduled on June 1. But regardless, I think there are at least two, maybe three, maybe four interpretations. And if you have that ambiguity, isn't that the specific role in our operation? Obviously, we are not going to concede ambiguity as you might imagine. Let's take the two. I'd like you to tell them. But let me just make one point, Your Honor. And that is if you look at the evidence that was given in the arbitration itself, one thing that the union's witness, the union's witness testified. And the reason for two strikes would be before the time was set, was they could do some investigations, some background, and see if there was a decision that one of the nine arbitrators had made that they weren't happy with. And they could strike him. But before any, that it had to be 24 hours. I thought your position was we don't go behind it because it's unambiguous. Well, my position is that we don't go on and be behind it because it's not unambiguous. But there's a logic that's to why it's unambiguous. You don't start with the testimony and then make the ambiguous. You have to start with the text to see where there's ambiguous. You're absolutely correct, Your Honor. All right, let's stick with the text one minute. The time is modified by the clause, the arbitration hearing is scheduled. The time, the arbitration hearing is scheduled. That could either mean the hearing date or the scheduling date, right? The date it is scheduled. It was scheduled on June 1. The hearing date was August 14. Two different times, right? If it means one scheduled, you didn't do it in time and the arbitrator has, was correct. If it's before the hearing date, your argument is you did it in time because the hearing date was postponed twice and you did it for the hearing. But that raises a second ambiguity. Is whether the scheduled, you're not put the word initial in. I think a postponement could be construed to be different from the dated schedule. Well, obviously, Your Honor, we disagree and think that you have to put the words initially or first or insert some term. Well, how do you set that aside? That's a better argument you have, but you haven't indicated why it is ambiguous whether it's a hearing date or the scheduling date. Why is ambiguous versus a hearing date versus a scheduling date? Why does it mean either of those two things? The date that it was scheduled or the date of the hearing? Because we think, Your Honor, because of the parties, if you look at what normally happens. Only the text. Only the text, but if you look at what the text actually says when the hearing is scheduled to begin, the hearing can begin on any number of dates. And if you look at the language that was closed off. But if the key language, modifying language is the verb, is scheduled. The time the arbitration hearing is scheduled to begin, it was scheduled on June 1. Correct. The hearing itself was scheduled to begin or the date of the hearing for itself is October August 14. Wouldn't it be something for interpretation as to which one of those is the best interpretation? Well, obviously, Your Honor, we disagree with that position. I mean, we think that... Why would you disagree that it could be ready the way? Because we think that it's clear if you look at the gap that was closed in the 2004 contract in 2007 between the parties where they thought... I'm focusing on the text, isn't it? No, Your Honor, it's not focusing on the text, but it's just focusing on part of the record that was heard before the arbitrator. I understand, but we don't look at that until we look at the text. Correct

. The hearing date was August 14. Two different times, right? If it means one scheduled, you didn't do it in time and the arbitrator has, was correct. If it's before the hearing date, your argument is you did it in time because the hearing date was postponed twice and you did it for the hearing. But that raises a second ambiguity. Is whether the scheduled, you're not put the word initial in. I think a postponement could be construed to be different from the dated schedule. Well, obviously, Your Honor, we disagree and think that you have to put the words initially or first or insert some term. Well, how do you set that aside? That's a better argument you have, but you haven't indicated why it is ambiguous whether it's a hearing date or the scheduling date. Why is ambiguous versus a hearing date versus a scheduling date? Why does it mean either of those two things? The date that it was scheduled or the date of the hearing? Because we think, Your Honor, because of the parties, if you look at what normally happens. Only the text. Only the text, but if you look at what the text actually says when the hearing is scheduled to begin, the hearing can begin on any number of dates. And if you look at the language that was closed off. But if the key language, modifying language is the verb, is scheduled. The time the arbitration hearing is scheduled to begin, it was scheduled on June 1. Correct. The hearing itself was scheduled to begin or the date of the hearing for itself is October August 14. Wouldn't it be something for interpretation as to which one of those is the best interpretation? Well, obviously, Your Honor, we disagree with that position. I mean, we think that... Why would you disagree that it could be ready the way? Because we think that it's clear if you look at the gap that was closed in the 2004 contract in 2007 between the parties where they thought... I'm focusing on the text, isn't it? No, Your Honor, it's not focusing on the text, but it's just focusing on part of the record that was heard before the arbitrator. I understand, but we don't look at that until we look at the text. Correct. If the text proves an ambiguity, now you're going to look at the other stuff and decide whether the arbitrator came up with a reason position. Correct. And obviously, we submit that he did not. You understand that. Your Honor, as I said, we view this as a situation where an arbitrator, basically, we think that the position taken by the union before the district court, one that Judge O'Grady got into with the union, was the question of whether or not there could be a line drawn in this case. In other words, does the court have the right to look at the language and determine whether or not there is an ambiguity, as Judge Neumire has pointed out? We think the position taken by the union into the court below is really pretty much to obliterate that line. You say that there is no circumstance where a district court can actually look at the language itself, and that was partly the issue in the court below. I think we do believe that this constitutes one of those cases, both because of the exparte nature of the proceeding, both because of the fact that we do believe the arbitrator did have an interest, wasn't to minimize. It was three times what he would normally have received as a cancellation fee by going ahead with hearing this case. And there are a lot of things the arbitrator could have done here. He could have said this case back to the parties. He could have said I'm not going to decline to continue to hear the case. The case could have been arbitrated before a different arbitrator as to the issue as to whether or not this removal was proper. But the one thing he should have not have done, your honor, is going ahead and heard this case. And frankly, in a situation like this, if he concluded in his interpretation, let's assume it's a reasonable interpretation. He concluded that you had not effectively removed him. He's deciding his own authority, yes, he is. We do that as a court, too. And so at that point, he did have authority to go ahead, right? If he concluded that reasonably. If he, in fact, concluded that reasonably, yes, he had authority to get the case. So, determine whether you concluded reasonably, you first looked at the text. If it's ambiguous, then you give him the opportunity to look at the external evidence to see whether it supports, has some support for his position. And if so, we leave Malone alone. Yeah, but I think you're not in fact, we may leave Malone, even if it doesn't have much, if it's not the best interpretation. Exactly. It doesn't have to be reasonable, does it? But it doesn't necessarily have to be reasonable, your honor

. If the text proves an ambiguity, now you're going to look at the other stuff and decide whether the arbitrator came up with a reason position. Correct. And obviously, we submit that he did not. You understand that. Your Honor, as I said, we view this as a situation where an arbitrator, basically, we think that the position taken by the union before the district court, one that Judge O'Grady got into with the union, was the question of whether or not there could be a line drawn in this case. In other words, does the court have the right to look at the language and determine whether or not there is an ambiguity, as Judge Neumire has pointed out? We think the position taken by the union into the court below is really pretty much to obliterate that line. You say that there is no circumstance where a district court can actually look at the language itself, and that was partly the issue in the court below. I think we do believe that this constitutes one of those cases, both because of the exparte nature of the proceeding, both because of the fact that we do believe the arbitrator did have an interest, wasn't to minimize. It was three times what he would normally have received as a cancellation fee by going ahead with hearing this case. And there are a lot of things the arbitrator could have done here. He could have said this case back to the parties. He could have said I'm not going to decline to continue to hear the case. The case could have been arbitrated before a different arbitrator as to the issue as to whether or not this removal was proper. But the one thing he should have not have done, your honor, is going ahead and heard this case. And frankly, in a situation like this, if he concluded in his interpretation, let's assume it's a reasonable interpretation. He concluded that you had not effectively removed him. He's deciding his own authority, yes, he is. We do that as a court, too. And so at that point, he did have authority to go ahead, right? If he concluded that reasonably. If he, in fact, concluded that reasonably, yes, he had authority to get the case. So, determine whether you concluded reasonably, you first looked at the text. If it's ambiguous, then you give him the opportunity to look at the external evidence to see whether it supports, has some support for his position. And if so, we leave Malone alone. Yeah, but I think you're not in fact, we may leave Malone, even if it doesn't have much, if it's not the best interpretation. Exactly. It doesn't have to be reasonable, does it? But it doesn't necessarily have to be reasonable, your honor. It could actually be wrong. But he can't say up is down or right is left or back is white. Well, and that's what he can be wrong. He can be wrong. But he can't add to modify or add something to the bargain that the party's agreed to. But he can decide incorrectly. He can decide incorrectly, but he cannot add to modify or extend the contract. And there's specific language in Article 17a in this agreement that says that. And that is, in fact, what we believe he did here. And this is not a situation where the agreement, Mr. Peterson, is going to lose his day in court. I mean, this is a case that we'll go back to a different arbitrator, an arbitrator who is not burdened by the issues that were burdened the arbitrator Ross here. In this case, we'll proceed eventually. How would you articulate the difference between add modify or alter on the one hand and interpret or construe on the other hand? Very common legal words. I think those are very common legal words. And I think the difference is a hard one to articulate, but I will say this. If you look at the language, and if you look at your decisions in Mountain Air Gas and Champion, and if you have to parse that phrase and add a word, which is what Jericho Grady found here, the word initially scheduled, then in fact, you are adding to or modifying that contract. And I think that's what the party's bargain not to have happened. Seems a little circular. How can you interpret an ambiguity without, as you put it, adding a word? Because if you say it's ambiguous, that means it means something, it means two things. And so you have to clarify to identify which is the preferred or the most reasonable or the most sensible reason. And you do that by adding a word or two. Correct, you're right. But I think what an arbitrator is not free to do is declare an ambiguity and then foreclose any review by a federal district court. And I think that is one of the things that that there is an ambiguity. Well, that is obviously something for the district court to decide

. It could actually be wrong. But he can't say up is down or right is left or back is white. Well, and that's what he can be wrong. He can be wrong. But he can't add to modify or add something to the bargain that the party's agreed to. But he can decide incorrectly. He can decide incorrectly, but he cannot add to modify or extend the contract. And there's specific language in Article 17a in this agreement that says that. And that is, in fact, what we believe he did here. And this is not a situation where the agreement, Mr. Peterson, is going to lose his day in court. I mean, this is a case that we'll go back to a different arbitrator, an arbitrator who is not burdened by the issues that were burdened the arbitrator Ross here. In this case, we'll proceed eventually. How would you articulate the difference between add modify or alter on the one hand and interpret or construe on the other hand? Very common legal words. I think those are very common legal words. And I think the difference is a hard one to articulate, but I will say this. If you look at the language, and if you look at your decisions in Mountain Air Gas and Champion, and if you have to parse that phrase and add a word, which is what Jericho Grady found here, the word initially scheduled, then in fact, you are adding to or modifying that contract. And I think that's what the party's bargain not to have happened. Seems a little circular. How can you interpret an ambiguity without, as you put it, adding a word? Because if you say it's ambiguous, that means it means something, it means two things. And so you have to clarify to identify which is the preferred or the most reasonable or the most sensible reason. And you do that by adding a word or two. Correct, you're right. But I think what an arbitrator is not free to do is declare an ambiguity and then foreclose any review by a federal district court. And I think that is one of the things that that there is an ambiguity. Well, that is obviously something for the district court to decide. And the district court decided here that there was no ambiguity. But you've just gone along with me to say I could have read it at least two ways. There's another problem. No, I don't think you can read it necessarily two ways, Your Honor. I'm going to review. I think you can read June 1st at that time. Is that the hearing in schedule? I think you can read this case. I think you can read this language only one way, Your Honor, that when the hearing was scheduled to begin, and I say that in part because of looking at the arbitrator's decision, you know what, in the testimony of the... It was scheduled to begin on August 14, right? Let's say the party show up and a witness calls in and said, I've just contracted pneumonia. I can't make it. The arbitrator says, well, let's postpone it until November. And there was a... And the question is, is the November date the date is scheduled to begin or was August 14 the date in my hypothetical? So then, excuse me, Your Honor, November dates the rescheduled date? Yes. November date. That's a postpone, right? It was scheduled to begin on August 14. Correct. But you don't need the word initially to conclude that the November date is just a postpone. It's not the date the hearing was scheduled to begin. But we would submit that that was what the party's intent was in this case, Your Honor. And we say that because of what..

. And the district court decided here that there was no ambiguity. But you've just gone along with me to say I could have read it at least two ways. There's another problem. No, I don't think you can read it necessarily two ways, Your Honor. I'm going to review. I think you can read June 1st at that time. Is that the hearing in schedule? I think you can read this case. I think you can read this language only one way, Your Honor, that when the hearing was scheduled to begin, and I say that in part because of looking at the arbitrator's decision, you know what, in the testimony of the... It was scheduled to begin on August 14, right? Let's say the party show up and a witness calls in and said, I've just contracted pneumonia. I can't make it. The arbitrator says, well, let's postpone it until November. And there was a... And the question is, is the November date the date is scheduled to begin or was August 14 the date in my hypothetical? So then, excuse me, Your Honor, November dates the rescheduled date? Yes. November date. That's a postpone, right? It was scheduled to begin on August 14. Correct. But you don't need the word initially to conclude that the November date is just a postpone. It's not the date the hearing was scheduled to begin. But we would submit that that was what the party's intent was in this case, Your Honor. And we say that because of what... You look at the... You have to tell that from the text. Well, you can tell that from the text of the decision because at one point, the company had made a proposal that said, if in fact, before the first witness was actually sworn... It's written to extraneous dominance to eliminate an ambiguity. I'm going to extraneous evidence to support the position that there is no ambiguity here. You're getting into that, can you? You've got a backwards. You look at the text to see if there is... I agree that you have to look at the text first as to that there's no ambiguity. But basically, as I said, our position is that when you get to the... When you get to the text in this case, that in fact, obviously respectfully disagree with you, that there is no ambiguity in this case. And the court was not free... The court was free to... In this case, look at the language. I think there was a discussion below as to whether or not the court even had the opportunity to look at the language in the first instance, to determine if, in fact, there was an ambiguity

. You look at the... You have to tell that from the text. Well, you can tell that from the text of the decision because at one point, the company had made a proposal that said, if in fact, before the first witness was actually sworn... It's written to extraneous dominance to eliminate an ambiguity. I'm going to extraneous evidence to support the position that there is no ambiguity here. You're getting into that, can you? You've got a backwards. You look at the text to see if there is... I agree that you have to look at the text first as to that there's no ambiguity. But basically, as I said, our position is that when you get to the... When you get to the text in this case, that in fact, obviously respectfully disagree with you, that there is no ambiguity in this case. And the court was not free... The court was free to... In this case, look at the language. I think there was a discussion below as to whether or not the court even had the opportunity to look at the language in the first instance, to determine if, in fact, there was an ambiguity. And at some point, obviously, the union conceded that the judge did have the authority to look at the language to determine on his own, whether or not there was, in fact, an ambiguity in this case, which is what the lower court did here. The district court seemed to read it unambiguously to say that the hearing begins. I believe in not the word scheduled, right? And he didn't address that. He did believe that the same position on the spouse and to you, your honor, that the date the hearing begins was the critical date. So he disagreed with the arbitrator? Correct? On the interpretation of the... of the CBA. He thought the language was unambiguously. Right. And so what we are reviewing, Day Novo, is whether the district court went too far in graining you relief on the basis of the district court's different interpretation of the CBA. Would you agree with that? And I would also say that I think the district court judge was obviously entitled to look at the language and make that determination. Otherwise, there is no review. Well, but you were seeking vacator of an arbitral award, right? Correct. And we got a million cases out there to say it's the most deferential standard review. The review of a federal court of an arbitrated award is highly deferential, et cetera, et cetera. And you're saying what? Well, I'm saying you're not... You take the court here, granted appropriate deference, and came within that very narrow band of issues that permits a federal court to vacate an arbitral award. Yes. And I would say that you're correct that obviously it is a very narrow standard review. And I would say that there are a number of cases, including by this court. But I would say to you that if you look at PPG industries or CAFRA versus HK Porter or Intermitt and put them on one side and look at your decisions in champion international products or mountain near gas, that this case is much more akin or falls into that limited category of mountain near gas and champion as opposed to the other cases. But if Judge Neymar is right, that there's an ambiguity in the CBA, you absolutely lose here, don't you? If there is, in fact, an ambiguity that has to be resolved. If it doesn't fall into, I think, in the warrior and golf case, you're one of the first cases of the steel workers trilogy

. And at some point, obviously, the union conceded that the judge did have the authority to look at the language to determine on his own, whether or not there was, in fact, an ambiguity in this case, which is what the lower court did here. The district court seemed to read it unambiguously to say that the hearing begins. I believe in not the word scheduled, right? And he didn't address that. He did believe that the same position on the spouse and to you, your honor, that the date the hearing begins was the critical date. So he disagreed with the arbitrator? Correct? On the interpretation of the... of the CBA. He thought the language was unambiguously. Right. And so what we are reviewing, Day Novo, is whether the district court went too far in graining you relief on the basis of the district court's different interpretation of the CBA. Would you agree with that? And I would also say that I think the district court judge was obviously entitled to look at the language and make that determination. Otherwise, there is no review. Well, but you were seeking vacator of an arbitral award, right? Correct. And we got a million cases out there to say it's the most deferential standard review. The review of a federal court of an arbitrated award is highly deferential, et cetera, et cetera. And you're saying what? Well, I'm saying you're not... You take the court here, granted appropriate deference, and came within that very narrow band of issues that permits a federal court to vacate an arbitral award. Yes. And I would say that you're correct that obviously it is a very narrow standard review. And I would say that there are a number of cases, including by this court. But I would say to you that if you look at PPG industries or CAFRA versus HK Porter or Intermitt and put them on one side and look at your decisions in champion international products or mountain near gas, that this case is much more akin or falls into that limited category of mountain near gas and champion as opposed to the other cases. But if Judge Neymar is right, that there's an ambiguity in the CBA, you absolutely lose here, don't you? If there is, in fact, an ambiguity that has to be resolved. If it doesn't fall into, I think, in the warrior and golf case, you're one of the first cases of the steel workers trilogy. The Supreme Court said, basically, you have three types of contract provisions. You have those types of provisions that are automatically applicable that really don't take any guidance or extraneous evidence to interpretate. You have a second category that provide more or less specific standards that require a reason and judgment, and that's where an arbitrator comes in. And then the third category were basically the parties have almost kind of kicked the can down the road where they basically, as the court said, some do little more than leave problems to future consideration. Obviously, where there's a gap that an arbitrator has to step in and fill. We think this case obviously falls into the first category where there is no ambiguity, where there was no gap to fill. And where the arbitrator wasn't... And if you're right on that, the arbitrator didn't have jurisdiction and then violated the basic terms of the contract. Correct. He's not a legitimate arbitrator. Correct. And if, in fact, I'm incorrect and there is an ambiguity, then we fall into the second or third category. Yes, Your Honor. There's nothing further from the court. Thank you. Thank you. Mr. Murphy, for a fire. Thank you. I just make a couple of points. First, Mr. Santucci suggested that the union can see it at the District Court in front of Judge Ojra Grady that the court was the appropriate body to determine ambiguity. We didn't concede that. We, in fact, argued exactly the opposite

. The Supreme Court said, basically, you have three types of contract provisions. You have those types of provisions that are automatically applicable that really don't take any guidance or extraneous evidence to interpretate. You have a second category that provide more or less specific standards that require a reason and judgment, and that's where an arbitrator comes in. And then the third category were basically the parties have almost kind of kicked the can down the road where they basically, as the court said, some do little more than leave problems to future consideration. Obviously, where there's a gap that an arbitrator has to step in and fill. We think this case obviously falls into the first category where there is no ambiguity, where there was no gap to fill. And where the arbitrator wasn't... And if you're right on that, the arbitrator didn't have jurisdiction and then violated the basic terms of the contract. Correct. He's not a legitimate arbitrator. Correct. And if, in fact, I'm incorrect and there is an ambiguity, then we fall into the second or third category. Yes, Your Honor. There's nothing further from the court. Thank you. Thank you. Mr. Murphy, for a fire. Thank you. I just make a couple of points. First, Mr. Santucci suggested that the union can see it at the District Court in front of Judge Ojra Grady that the court was the appropriate body to determine ambiguity. We didn't concede that. We, in fact, argued exactly the opposite. Of course, the court can look at the contract language. But if the court concluded that the language was unambiguous and the arbitrator just declared it ambiguous, then you go to the essence of the contract under the champion and the whole power of the arbitrator to do that is based on a misreading of the contract. Which, your Honor, he can do. There is a misread. That's what we said. If he gets it wrong, he's entitled to get it wrong. The party's agreed not to have the, there are cases. The District Court, if it goes to the arbitrator's jurisdiction and the arbitrator says, oh, I find an ambiguity, therefore I have power. It seems to me that District Court can correct that. By looking at the text and say, it's not ambiguous. It doesn't give him power. The judge would have to do that in a way that shows that he went beyond the essence of the contract and imposed his own standard of industrial fairness and justice. And he didn't do that here. He looked at the bargaining history which this court has said is perfectly appropriate to do. This court has also said it's the job of the arbitrator in part of his interpretation is to determine ambiguity. The second point is, this is just a practical point. Mr. Peterson is the grievant here. He's been on a work since 2012 in February. Mr. Santucci said he'll have his day in court. Okay. Well, he's been on a work now for over two years. And the award was full back pay and re-instagement less say 14-day suspension. So, you know, we're all sitting here and standing here, but this man has been on a work for two years. The other point that the court should be aware of in the PBG case and the intermet court case which we rely on in our briefs, those two cases had to do with the PBG case had to do with the definition of actively employed and if and bonuses and if employees that were on strike were actively employed

. Of course, the court can look at the contract language. But if the court concluded that the language was unambiguous and the arbitrator just declared it ambiguous, then you go to the essence of the contract under the champion and the whole power of the arbitrator to do that is based on a misreading of the contract. Which, your Honor, he can do. There is a misread. That's what we said. If he gets it wrong, he's entitled to get it wrong. The party's agreed not to have the, there are cases. The District Court, if it goes to the arbitrator's jurisdiction and the arbitrator says, oh, I find an ambiguity, therefore I have power. It seems to me that District Court can correct that. By looking at the text and say, it's not ambiguous. It doesn't give him power. The judge would have to do that in a way that shows that he went beyond the essence of the contract and imposed his own standard of industrial fairness and justice. And he didn't do that here. He looked at the bargaining history which this court has said is perfectly appropriate to do. This court has also said it's the job of the arbitrator in part of his interpretation is to determine ambiguity. The second point is, this is just a practical point. Mr. Peterson is the grievant here. He's been on a work since 2012 in February. Mr. Santucci said he'll have his day in court. Okay. Well, he's been on a work now for over two years. And the award was full back pay and re-instagement less say 14-day suspension. So, you know, we're all sitting here and standing here, but this man has been on a work for two years. The other point that the court should be aware of in the PBG case and the intermet court case which we rely on in our briefs, those two cases had to do with the PBG case had to do with the definition of actively employed and if and bonuses and if employees that were on strike were actively employed. Similarly, the issue was vacation benefits and whether or not earned vacation benefits were titled to employees when a company went bankrupt. In both of those cases, that wasn't addressed in the contract language so silent. So, the arbitrator had to go and look at extrinsic evidence in this case mostly bargaining history. That's exactly what happened here. On the face of the contract, you cannot tell what was meant by the parties. It was silent. It didn't say scheduled or rescheduled. It did language was ambiguous and that's exactly what PBG and intermet court say. Once that happens, it's the job of the arbitrator to figure out what the intent of the parties is. That's his job. If there's no further questions. Thank you, Mr. Clerk. Thank you. All right. I will ask the clerk to adjourn court and then we'll come down in Greek Council. This ought to be a question adjourned. Signed a back. That's the United States and this ought to be a court.

your ed, Mr. Murphy. Thank you. May I please, the court, and good morning. My name is Mark Murphy. I'm here on behalf of Teamsters Local Union number 96. Just to give you a little factual background about what this case concerns, this is a case where the union is seeking reversal of the district court's decision. We got counsel of all the side. Oh, that's where you were sitting. Okay, I thought you should see in that. As I was saying, this case involves the union's challenge in seeking to reverse the district court's decision that vacated our labor arbitration award rendered pursuant to a collective bargaining agreement between the union and the company Washington Gas. A reversal of this of the district court's decision and enforcement of the arbitration award is appropriate because the district court improperly stepped into the shoes of the arbitrator and substituted its own judgment for that of the arbitrator. Now, the parties as part of their contract collect the bargaining agreement agreed to embark for an arbitrator to resolve disputes over the interpretation of their collective bargaining agreement. Specifically, the contract provided that the arbitrator with brought authority to interpret and apply provisions of the labor contract. That's precisely what this arbitrator did here and the district court should not have disturbed the arbitration award. Now, there's no dispute. The law is very clear that judicial review of a labor arbitration is, as this court has explained, extremely narrow. In fact, it's amongst the narrowest known to the law. The court's role in reviewing arbitration awards is simply to determine only whether the arbitrator did his job, not whether he did it well, not whether he did it correctly or reasonably, but simply whether he did it. So if the court, district court in this case, disagreed with that arbitration award, that's not enough. He needed to determine that the arbitrator abandoned his job of interpreting and applying the contract. And thus, as the Supreme Court has explained in Garvey, if an arbitrator is arguably constricting or applying the contract, then his decision should not be disturbed. An arbitration award must not be disturbed regardless of whether the reviewing court believes the arbitrator committed a serious error or if his award was in provenant or even silly. And as the union explained in his brief, because the district court far exceeded its role in reviewing the arbitration award here, he conducted what we essentially argue is a denover review of the arbitration award. The court's decision should be reversed and the case should be remanded with instructions to enforce the arbitration award. Now, the particular facts of this case are not complicated. This case involves the arbitrares interpretation of a contractual provision with respect to removal of an arbitrator from the term of the contract, either party may for any reason strike up to two arbitrators from the panel of arbitrators. If the company or the union likes to strike an arbitrator, it must do so no later than 24 hours before the time the arbitration hearing is scheduled to begin. Now, in this case, the hearing, the arbitration hearing was a termination case. The employee was terminate back in February of 2012. The arbitration hearing was scheduled for August 14, 2012. Prior to that date, the company saw and was granted two postponements, one to November 15, one to December 6, 2012. Hearing was set to go forward on the 6th of December. At the end of November, the company notified the arbitrator and the union that it was invoking the contract provision and removing that arbitrator from the panel. The union disagreed with that position decision. That's not consistent with the contract provision and suggested that the party's move on to arbitration. Also suggested that decision itself, the interpretation of the removal provision, was inherently part of the arbitrator's job. Now, of course, the company disagreed with that and in fact, the company did not show up at the hearing. Can I ask you about that? What if any consequence or significance is there or should there be in respect to the apolese failure to appear and participate? Yes, Judge Davis. We would say there's a significant impact to that. The party's agreed to resolve all the disputes under the contract through an arbitrator. Now, understand that. They got noticed. They received. Company got noticed. Of course, they got noticed. They just decided we'd stricken this arbitrator and we're not even going to show up. Not even to observe what happens. Yes, Your Honor. What they did was essentially said, our version and our interpretation of the contract and the removal provision trumps the unions and therefore we're standing in our interpretation and nothing the arbitrator can do is going to change our mind. So they didn't present any argument. So my question is, is there any significance in that? In other words, would the case be here in a different posture? Obviously, it would be on the facts, but on the law, would the case be before us in any different posture? Had they appeared, made the arguments that the arbitrator was without authority lost and then go on the district court? Do you anyone say no? It's simply what the court is looking at is the decision of the arbitrator. I don't know what the company would have presented as far as evidence. I assume they would have contested our position. Well, they could have argued that there's no ambiguity late nor otherwise. That what they did in striking the arbitrator was perfectly consistent. That's right, Your Honor. They could have argued whatever they wanted. At the end of the day, what the court looks at is whether or not my question to you and I'm not sure I'm expressing it or you're understanding it. Is there any significance? I guess is there a waiver of some sort or a forfeiture of some sort? Well, were they entitled as a matter of law? Did they have the choice of either showing up and contesting the arbitrator's action and then going to district court on a motion for vacator or not showing up at all waiting to the arbitration award was made and then going to district court? Is there any significance to that? I don't think that's not brief, right? No, and I don't. The union would say that with respect to their choice, they made their choice. We don't think there's any. I'm a little surprised that your answer. Frankly, I thought your answer might be, yeah, Judge, they waived this objection, but that's not your answer. I think in our brief, we do say that there are certain arguments that they may have waived with respect to procedural issues that they should have and could have raised during the hearing. The real issue, though, your honor is if they had shown up and disagreed and the arbitrator still ruled in our favor and said, I find that this is my interpretation of the removal provision. I still believe I have jurisdiction and ruled. They still certainly could have gone to district court. We don't believe that's appropriate. They might have persuaded the arbitrator to contrary argument that they were right. Well, that's the whole point of having an arbitration procedure, your honor, and labor contracts is to certainly move things along. Here we are two years, more than two years later, and that's absolutely right. Now, what the arbitrator did look at and what was the issue of the case was the language itself, and the question was, was it ambiguous? The union argued with respect to rescheduled hearings. It certainly was ambiguous. This court has ruled that the question of whether or term a contract term and a labor contract is ambiguous. That in itself is part of the labor arbitrator's interpretation of the contract. That was in the PBG Industries case and the Intermediate Court case. So what we're saying is the arbitrator did exactly what he was bargained for, what the parties chose him to do, which is he took a contract term. The union said it was ambiguous. Companies said it wasn't. What did their arbitrator do? He went and looked at bargaining history to determine whether or not there was anything in this bargaining history that would allow him to reach his conclusion. There was. This wasn't the first time this happened, in fact, with these two parties. In the previous negotiate, under the previous contract, company did the same thing. They tried to remove an arbitrator. They didn't show up adhering. In that contract, the language was only during the term of the contract any party could remove an arbitrator. So the issue was during this term of the contract, when an arbitrator's are appointed, can he still be removed? The arbitrator ruled, no. Once I'm appointed, I've issued decisions. You're stuck with me. The parties, at least the company didn't like that. So the next round of bargaining, they went and said, we need to change this. We want to insert language that says a party can remove an arbitrator any time up to before the first witness is sworn in a hearing. The union said, we don't want that. That's going to cost too much delay. That's going to cost too much time consuming. We're happy with the language where it is. They reached a compromise. The compromise was 24 hours before scheduled hearing. That was heard by the arbitrator. Did you say 24 hours before scheduled hearing? Before the hearing is scheduled to begin. That's two different things. I actually believe it can be read three ways. But the language is the time for the time the arbitration hearing is scheduled. Right. It's a good time to begin. So we're modifying the word time. We're trying to find out what date that is. So it could either be the arbitration hearing is scheduled, the time for it is scheduled, or we could treat the hearing as the object that modifies time and read it, the arbitration of the scheduled hearing, a hearing which is scheduled and focus on the hearing date. Yes, sir. So you have a date either before June 1 when it was scheduled, or before August 14 when the hearing was scheduled to begin. Right. And me neither, right? Sure. And your questioning shows that the ambiguity with respect to that language. And of course, when you say we, the law is that it's not the court that determines whether it's the first interpretation, the second interpretation, the third interpretation. Well, there's a limit to that because the whole thing is contractual and to the extent that we're looking at the overall authority, the arbitrator we look to be agreeing with, and that's a court issue. Sure. But there's no. Well, if the arbitrator I guess can decide is on jurisdiction and resolve these issues, I'm not sure what their position on that is. They believe that they don't deny the arbitrator had the authority to make a decision. They just disagree with whether it's ambiguous and the arbitrator should have decided. You are asking about the company's position, your honor? I think what the company is, Mr. St. Tuchy, I'm sure, will articulate their position, but they believe that their unilateral decision to remove the arbitrator and impose the company's interpretation of the contract provision thereby removed jurisdiction from the arbitrator. So he was without power to conduct the hearing. The union's position is that- Why don't you address the one question. This is the issue given to the arbitrator in this case, on this point, whether he has authority to decide whether he's removed or not. Might be affected by the fact that he's going to get $6,500 and set $2,000. Well, we have that. Sure. How do you take that on? Well, I think that argument is without merit, your honor, frankly. The record really is that there was a $2,000 cancellation fee. There was a $6,000 or so fee that was split by the party. So really, he was paid almost as much as he would have if he conducted the whole hearing. And the fact of the matter is the only case that the company cites to with respect to that is an arbitrator that was being removed from a permanent panel and that was a lucrative position. This arbitrator, he's gone. This is the last case he's heard. So it's not an issue of him earning money going forward. But your argument is that there's not enough money to affect by. It's de minimis. And just one point is that the real issue here is the district court's decision. And what happened with the district court is the district court was very, very opposed to what happened in this case, because they read the contract language. In fact, what Judge O'Grady did was he sat as the arbitrator. He took off his judicial robes and he said, I'm going to be the arbitrator in this case. And I'm looking at this and I don't see any ambiguity here. And therefore, he said the arbitrator got it wrong. And he indicated to the union when the union suggested ambiguity is part of interpretations for the arbitrator, even if he gets it wrong, even if he disagree with him. He simply said, that's not the law. Well, we would submit the union would submit that that is the law. That part of bargaining for an arbitrator is that's who you get to decide your cases. He's not going to win every case. The union's not going to prevail in every case. The company's not going to prevail. But that is under federal labor law. That is the preferred and method of resolving disputes. So our whole point, your honors, is that the judge overstepped here. He didn't recognize that there's a very, very narrow job for a court to do in reviewing an arbitration decision. And what he really did was a denover review. Yeah. And I take it that the argument is that in violation of the CBA, the arbitrator here quote, altered, extended or modified. Sure. And you hear that. My time is up and out. Certainly respond to that, Joe. You hear that all the time in the decisions where a company comes and tries to say all he did was interpret it. You have to interpret it, right? That's you have to interpret and apply. So he didn't alter it. He didn't add anything. The district court said he added initially scheduled. Well, he didn't do that. All he did was he chose between plausible contensions. And that's what the job of the arbitrator is. We would ask that. Well, that's the third interpretation I suggest exists. It says hearing is scheduled. And the argument could be that the November 15 and December 6 dates were not scheduled by the parties. They were postponements over hearing that had already been scheduled. And a postponement may not be fit into the category of what the contract says is scheduled. So that is a third. Seems to be a third possible. Sure, sure. You're on. That's the one the company advocates. Sure. And again, that postponement is a formal schedule. Right. And that was the job the arbitrator did to go through. Whichever, however many options he thought that that plausible contensions that provision could have made. He did that. He listened to bargaining history, which is perfectly appropriate. And he rendered an award. And we're standing here right now asking that that award be affirmed. Thank you. Thank you. Let's hear it from the company. Good morning, Your Honors. May please the Court, Joe Santucci, on behalf of Washington Gaslight Company. Judge Davis, to turn to your question, there was no waiver here. I am not sure why the company decided not to participate. I'm assuming the company believed that had it shown up for the hearing. You would have consented to having arbitrator Ross here, the case. It shows not to had we gotten the same decision. I suspect I would still be standing here before you today. Exactly. And I think for myself, in a much better light, because in fact, you might well have persuaded the arbitrator, as you participated, that he was wrong. And you wouldn't be here at all. And that might all be true, Your Honor, but the fact remains, the arbitrator did go ahead and issue a decision. So apart from the other legal issues, why should a court indulge? You see where I'm going. You see exactly what I'm saying. Just as a matter of judicial administration, if a party didn't show up before a district court, I suppose on a matter of law, we'd still have jurisdiction when they appeal. Anyway, go ahead. I don't want to take that. I mean, the fact that the U.S. was not arbitrator Ross, I mean, I'm not saying that this matter was not arbitratable. I mean, this matter is arbitratable. It shouldn't have been arbitrated by arbitrator Ross. I mean, that's obviously our position, that he had no authority to hear that case. But the fact remains that we're dealing with a contractual issue here, and regardless of whether our client had shown up at that hearing. So that, if it's ambiguous, and we can talk to you for, I think there are three possible positions at least on reading this. But if it is ambiguous, and he decides that the best reading of this ambiguous clause is that notice has to be given for fourth, June 1. We shouldn't interfere with that, right? I would say two things, Your Honor. One, I have to concede that there is an ambiguity, and obviously, you know, we do not believe there's any ambiguity in the language. The language says if the company or the union elects a strike an arbitrator, it must do so no later than 24 hours before the arbitration hearing is scheduled to begin. You left out a word, an important word, the most important word, before the time, doesn't it say? No, it says before, no later than 24 hours before the arbitration hearing is scheduled to begin, I believe you're on. Oh, okay. That's a lot different than what I have. It doesn't have the time before, before the time, the arbitration. My understanding is Article 1866 and 16A. Okay, no fair enough. I'll just take a look. And I think, Your Honor, if you look at this case, do you think the controlling word is hearing, or do you think the controlling word is scheduled? I think, Judge O'Grady got it exactly right. Is scheduled. Is scheduled. Is scheduled. Well, if it's scheduled, if it's scheduled, then June 1. Well, Your Honor, one thing this Court said in time. I thought your position was before the hearing date. Well, I'm saying before the hearing is before the arbitration hearing is scheduled to begin. What Judge O'Grady said, you have to insert the word initially scheduled. No, no, no, no, no, no, let's leave that aside. That's a different issue. I'll take that up with you, too. But I'm trying to find out whether the date that we're looking at is the date it is scheduled, the scheduling, or the date of the hearing. The date of the hearing. J.A. page 134 reads the way Judge Neemar says it reads. Hit the words, the time. 24 hours before the time, the arbitration. No, but our position is the actual hearing date. It is the time. That's pretty key because time is a date. And it says the time. And now it's modified by the clause. The arbitration hearing is scheduled. Now, it seems to me the arbitration hearing is scheduled on the date June 1. You could read it another way. I think it's a little more strained before the time, the arbitration hearing, and read scheduled as modifying hearing. A scheduled arbitration hearing. But I don't quite say that. It says date. It is scheduled. Now, then you get the third problem is whether a postponement after a discheduled, whether a postponement amounts to this type of arbitration hearing being scheduled. And I'm not sure a postponement is the scheduling of the hearing. It's just changing the date. Well, if you look at it, we've already scheduled on June 1. But regardless, I think there are at least two, maybe three, maybe four interpretations. And if you have that ambiguity, isn't that the specific role in our operation? Obviously, we are not going to concede ambiguity as you might imagine. Let's take the two. I'd like you to tell them. But let me just make one point, Your Honor. And that is if you look at the evidence that was given in the arbitration itself, one thing that the union's witness, the union's witness testified. And the reason for two strikes would be before the time was set, was they could do some investigations, some background, and see if there was a decision that one of the nine arbitrators had made that they weren't happy with. And they could strike him. But before any, that it had to be 24 hours. I thought your position was we don't go behind it because it's unambiguous. Well, my position is that we don't go on and be behind it because it's not unambiguous. But there's a logic that's to why it's unambiguous. You don't start with the testimony and then make the ambiguous. You have to start with the text to see where there's ambiguous. You're absolutely correct, Your Honor. All right, let's stick with the text one minute. The time is modified by the clause, the arbitration hearing is scheduled. The time, the arbitration hearing is scheduled. That could either mean the hearing date or the scheduling date, right? The date it is scheduled. It was scheduled on June 1. The hearing date was August 14. Two different times, right? If it means one scheduled, you didn't do it in time and the arbitrator has, was correct. If it's before the hearing date, your argument is you did it in time because the hearing date was postponed twice and you did it for the hearing. But that raises a second ambiguity. Is whether the scheduled, you're not put the word initial in. I think a postponement could be construed to be different from the dated schedule. Well, obviously, Your Honor, we disagree and think that you have to put the words initially or first or insert some term. Well, how do you set that aside? That's a better argument you have, but you haven't indicated why it is ambiguous whether it's a hearing date or the scheduling date. Why is ambiguous versus a hearing date versus a scheduling date? Why does it mean either of those two things? The date that it was scheduled or the date of the hearing? Because we think, Your Honor, because of the parties, if you look at what normally happens. Only the text. Only the text, but if you look at what the text actually says when the hearing is scheduled to begin, the hearing can begin on any number of dates. And if you look at the language that was closed off. But if the key language, modifying language is the verb, is scheduled. The time the arbitration hearing is scheduled to begin, it was scheduled on June 1. Correct. The hearing itself was scheduled to begin or the date of the hearing for itself is October August 14. Wouldn't it be something for interpretation as to which one of those is the best interpretation? Well, obviously, Your Honor, we disagree with that position. I mean, we think that... Why would you disagree that it could be ready the way? Because we think that it's clear if you look at the gap that was closed in the 2004 contract in 2007 between the parties where they thought... I'm focusing on the text, isn't it? No, Your Honor, it's not focusing on the text, but it's just focusing on part of the record that was heard before the arbitrator. I understand, but we don't look at that until we look at the text. Correct. If the text proves an ambiguity, now you're going to look at the other stuff and decide whether the arbitrator came up with a reason position. Correct. And obviously, we submit that he did not. You understand that. Your Honor, as I said, we view this as a situation where an arbitrator, basically, we think that the position taken by the union before the district court, one that Judge O'Grady got into with the union, was the question of whether or not there could be a line drawn in this case. In other words, does the court have the right to look at the language and determine whether or not there is an ambiguity, as Judge Neumire has pointed out? We think the position taken by the union into the court below is really pretty much to obliterate that line. You say that there is no circumstance where a district court can actually look at the language itself, and that was partly the issue in the court below. I think we do believe that this constitutes one of those cases, both because of the exparte nature of the proceeding, both because of the fact that we do believe the arbitrator did have an interest, wasn't to minimize. It was three times what he would normally have received as a cancellation fee by going ahead with hearing this case. And there are a lot of things the arbitrator could have done here. He could have said this case back to the parties. He could have said I'm not going to decline to continue to hear the case. The case could have been arbitrated before a different arbitrator as to the issue as to whether or not this removal was proper. But the one thing he should have not have done, your honor, is going ahead and heard this case. And frankly, in a situation like this, if he concluded in his interpretation, let's assume it's a reasonable interpretation. He concluded that you had not effectively removed him. He's deciding his own authority, yes, he is. We do that as a court, too. And so at that point, he did have authority to go ahead, right? If he concluded that reasonably. If he, in fact, concluded that reasonably, yes, he had authority to get the case. So, determine whether you concluded reasonably, you first looked at the text. If it's ambiguous, then you give him the opportunity to look at the external evidence to see whether it supports, has some support for his position. And if so, we leave Malone alone. Yeah, but I think you're not in fact, we may leave Malone, even if it doesn't have much, if it's not the best interpretation. Exactly. It doesn't have to be reasonable, does it? But it doesn't necessarily have to be reasonable, your honor. It could actually be wrong. But he can't say up is down or right is left or back is white. Well, and that's what he can be wrong. He can be wrong. But he can't add to modify or add something to the bargain that the party's agreed to. But he can decide incorrectly. He can decide incorrectly, but he cannot add to modify or extend the contract. And there's specific language in Article 17a in this agreement that says that. And that is, in fact, what we believe he did here. And this is not a situation where the agreement, Mr. Peterson, is going to lose his day in court. I mean, this is a case that we'll go back to a different arbitrator, an arbitrator who is not burdened by the issues that were burdened the arbitrator Ross here. In this case, we'll proceed eventually. How would you articulate the difference between add modify or alter on the one hand and interpret or construe on the other hand? Very common legal words. I think those are very common legal words. And I think the difference is a hard one to articulate, but I will say this. If you look at the language, and if you look at your decisions in Mountain Air Gas and Champion, and if you have to parse that phrase and add a word, which is what Jericho Grady found here, the word initially scheduled, then in fact, you are adding to or modifying that contract. And I think that's what the party's bargain not to have happened. Seems a little circular. How can you interpret an ambiguity without, as you put it, adding a word? Because if you say it's ambiguous, that means it means something, it means two things. And so you have to clarify to identify which is the preferred or the most reasonable or the most sensible reason. And you do that by adding a word or two. Correct, you're right. But I think what an arbitrator is not free to do is declare an ambiguity and then foreclose any review by a federal district court. And I think that is one of the things that that there is an ambiguity. Well, that is obviously something for the district court to decide. And the district court decided here that there was no ambiguity. But you've just gone along with me to say I could have read it at least two ways. There's another problem. No, I don't think you can read it necessarily two ways, Your Honor. I'm going to review. I think you can read June 1st at that time. Is that the hearing in schedule? I think you can read this case. I think you can read this language only one way, Your Honor, that when the hearing was scheduled to begin, and I say that in part because of looking at the arbitrator's decision, you know what, in the testimony of the... It was scheduled to begin on August 14, right? Let's say the party show up and a witness calls in and said, I've just contracted pneumonia. I can't make it. The arbitrator says, well, let's postpone it until November. And there was a... And the question is, is the November date the date is scheduled to begin or was August 14 the date in my hypothetical? So then, excuse me, Your Honor, November dates the rescheduled date? Yes. November date. That's a postpone, right? It was scheduled to begin on August 14. Correct. But you don't need the word initially to conclude that the November date is just a postpone. It's not the date the hearing was scheduled to begin. But we would submit that that was what the party's intent was in this case, Your Honor. And we say that because of what... You look at the... You have to tell that from the text. Well, you can tell that from the text of the decision because at one point, the company had made a proposal that said, if in fact, before the first witness was actually sworn... It's written to extraneous dominance to eliminate an ambiguity. I'm going to extraneous evidence to support the position that there is no ambiguity here. You're getting into that, can you? You've got a backwards. You look at the text to see if there is... I agree that you have to look at the text first as to that there's no ambiguity. But basically, as I said, our position is that when you get to the... When you get to the text in this case, that in fact, obviously respectfully disagree with you, that there is no ambiguity in this case. And the court was not free... The court was free to... In this case, look at the language. I think there was a discussion below as to whether or not the court even had the opportunity to look at the language in the first instance, to determine if, in fact, there was an ambiguity. And at some point, obviously, the union conceded that the judge did have the authority to look at the language to determine on his own, whether or not there was, in fact, an ambiguity in this case, which is what the lower court did here. The district court seemed to read it unambiguously to say that the hearing begins. I believe in not the word scheduled, right? And he didn't address that. He did believe that the same position on the spouse and to you, your honor, that the date the hearing begins was the critical date. So he disagreed with the arbitrator? Correct? On the interpretation of the... of the CBA. He thought the language was unambiguously. Right. And so what we are reviewing, Day Novo, is whether the district court went too far in graining you relief on the basis of the district court's different interpretation of the CBA. Would you agree with that? And I would also say that I think the district court judge was obviously entitled to look at the language and make that determination. Otherwise, there is no review. Well, but you were seeking vacator of an arbitral award, right? Correct. And we got a million cases out there to say it's the most deferential standard review. The review of a federal court of an arbitrated award is highly deferential, et cetera, et cetera. And you're saying what? Well, I'm saying you're not... You take the court here, granted appropriate deference, and came within that very narrow band of issues that permits a federal court to vacate an arbitral award. Yes. And I would say that you're correct that obviously it is a very narrow standard review. And I would say that there are a number of cases, including by this court. But I would say to you that if you look at PPG industries or CAFRA versus HK Porter or Intermitt and put them on one side and look at your decisions in champion international products or mountain near gas, that this case is much more akin or falls into that limited category of mountain near gas and champion as opposed to the other cases. But if Judge Neymar is right, that there's an ambiguity in the CBA, you absolutely lose here, don't you? If there is, in fact, an ambiguity that has to be resolved. If it doesn't fall into, I think, in the warrior and golf case, you're one of the first cases of the steel workers trilogy. The Supreme Court said, basically, you have three types of contract provisions. You have those types of provisions that are automatically applicable that really don't take any guidance or extraneous evidence to interpretate. You have a second category that provide more or less specific standards that require a reason and judgment, and that's where an arbitrator comes in. And then the third category were basically the parties have almost kind of kicked the can down the road where they basically, as the court said, some do little more than leave problems to future consideration. Obviously, where there's a gap that an arbitrator has to step in and fill. We think this case obviously falls into the first category where there is no ambiguity, where there was no gap to fill. And where the arbitrator wasn't... And if you're right on that, the arbitrator didn't have jurisdiction and then violated the basic terms of the contract. Correct. He's not a legitimate arbitrator. Correct. And if, in fact, I'm incorrect and there is an ambiguity, then we fall into the second or third category. Yes, Your Honor. There's nothing further from the court. Thank you. Thank you. Mr. Murphy, for a fire. Thank you. I just make a couple of points. First, Mr. Santucci suggested that the union can see it at the District Court in front of Judge Ojra Grady that the court was the appropriate body to determine ambiguity. We didn't concede that. We, in fact, argued exactly the opposite. Of course, the court can look at the contract language. But if the court concluded that the language was unambiguous and the arbitrator just declared it ambiguous, then you go to the essence of the contract under the champion and the whole power of the arbitrator to do that is based on a misreading of the contract. Which, your Honor, he can do. There is a misread. That's what we said. If he gets it wrong, he's entitled to get it wrong. The party's agreed not to have the, there are cases. The District Court, if it goes to the arbitrator's jurisdiction and the arbitrator says, oh, I find an ambiguity, therefore I have power. It seems to me that District Court can correct that. By looking at the text and say, it's not ambiguous. It doesn't give him power. The judge would have to do that in a way that shows that he went beyond the essence of the contract and imposed his own standard of industrial fairness and justice. And he didn't do that here. He looked at the bargaining history which this court has said is perfectly appropriate to do. This court has also said it's the job of the arbitrator in part of his interpretation is to determine ambiguity. The second point is, this is just a practical point. Mr. Peterson is the grievant here. He's been on a work since 2012 in February. Mr. Santucci said he'll have his day in court. Okay. Well, he's been on a work now for over two years. And the award was full back pay and re-instagement less say 14-day suspension. So, you know, we're all sitting here and standing here, but this man has been on a work for two years. The other point that the court should be aware of in the PBG case and the intermet court case which we rely on in our briefs, those two cases had to do with the PBG case had to do with the definition of actively employed and if and bonuses and if employees that were on strike were actively employed. Similarly, the issue was vacation benefits and whether or not earned vacation benefits were titled to employees when a company went bankrupt. In both of those cases, that wasn't addressed in the contract language so silent. So, the arbitrator had to go and look at extrinsic evidence in this case mostly bargaining history. That's exactly what happened here. On the face of the contract, you cannot tell what was meant by the parties. It was silent. It didn't say scheduled or rescheduled. It did language was ambiguous and that's exactly what PBG and intermet court say. Once that happens, it's the job of the arbitrator to figure out what the intent of the parties is. That's his job. If there's no further questions. Thank you, Mr. Clerk. Thank you. All right. I will ask the clerk to adjourn court and then we'll come down in Greek Council. This ought to be a question adjourned. Signed a back. That's the United States and this ought to be a court